author: Johnson, J.

text:
    Pratt against Foote.

      This caso may be found in Selden’s Reports, Vol. 5, page 468.

   Johnson, J.

This action was commenced under the Code and was tried in June, 1850, by consent, without a jury, before Mr. Justice Wright. The decision was not pronounced at the conclusion of the trial, but was delivered in writing at a subsequent period. It does not specify separately the conclusions of law and fact, at which the judge had arrived, but simply declares that “ the court do decide that the plaintiff do recover.” An exception was afterwards taken to the decision and judgment, and was duly sealed by the learned judge. The exception is to the decision and judgment, specifying the point not otherwise than by that exception. The plaintiff contends that this exception presents no point for review. Under the Code of 1849, which was in force when the trial took place, the judge was not bound, as he was under the Code of 1848, to state his conclusions of fact and law separately (§ 267), but was at liberty to pursue the course which has been taken in this case, and by his decision to determine all the questions of fact and law. I do not see how the exception to such a decision can take any different form from that which has been employed in this case. It may be made at any time within ten days after notice of the judgment (§. 268), and it therefore does not seem to come within the reason of those rules ■ which govern exceptions taken at trials before a jury. Looking at the case in the most favorable way for the party succeeding at the trial, the judge must be taken to have determined all the questions of fact upon which there was conflicting evidence, in favor of the successful party, and the exception is to be taken to allege, as matter of law, that all such facts being so found, the decision made is contrary to law. It presents exactly the same question that would arise upon a trial before a jury, if, at the conclusion of the evidence, the excepting party had requested the judge to direct a verdict in his favor, and the request had been refused. The proposition presented, is, that as matter of law, the * cause cannot be decided against the excepting party. In this case there is no conflict of evidence, and the question upon which the case turns is a mere question of law. The plaintiff held the defendant’s note, payable at the plaintiff’s bank, November 20th, 1846, on which Samuel Scudder and another were indorsers. About the 15th November, 1846, the defendant brought to the bank a check of Samuel Scudder, the indorser, drawn upon the bank, payable to defendant’s order and indorsed by him, dated November 20th, 1846, for an amount sufficient to pay his note. The defendant proposed, then, to take up the note in exchange for Scudder’s check. This was declined, but the cashier of the bank told him he-would pin the check to the note, as they both fell due on the same day, and if Scudder’s account was good when the note fell due it would pay the note. It was also arranged that the note, if paid, was to remain at the bank till the defendant should call for it. On the twentieth of November, Scudder’s account at the bank was overdrawn some $6,000 or $7,000. Between that day and November twenty-fifth, the bank placed to the credit of Scudder in his account with the bank, $3,812.61, or thereabouts, being the proceeds of certain discounts made by, and payments made to, the bank, on Scudder’s account.

On the twenty-fifth of November, Foote’s note was entered on the books of the bank by the proper officer, as paid, and Scudder’s account was charged with the check.

Just such entries were made as would properly have been made if on that day Foote had presented to the bank Scudder’s check and had received the money for it, and had then, with the money, paid his note.

Upon these facts, as to which there is no conflict of evidence, the question upon the merits in this cause arises. The supreme court, at special and general term, have considered the rights of the parties as depending upon the question whether there was an agreement between the defendant and plaintiff, that Scudder’s check should be received absolutely in payment of Foote’s note. If that is the turning point in the cause, the court below has, beyond all doubt, rightly disposed of it. To me it seems, however, that the true question is rather, whether Scudder’s check has not, as between these parties, been actually paid, and upon that question I am of opinion with the defendant. Suppose Foote had presented Scudder’s check to the bank and they had paid it, they could never in any form have recovered the money back again, there being no pretence of fraud upon, or mistake by the bank. Scudder’s request to them to pay money on his account was one which, under the circumstances, they were at liberty either to reject or accede to, but having acceded to it they were not afterwards at liberty to recall their act. It seems to me that the payment of Scudder’s check by charging him with it in account, was as complete a payment as if the money had been handed across the counter to Foote and by him had been handed back again in payment of his note. (Levy v. Bank U. S., 4 Dal., 234; 1 Binney, 27; Bolton v. Richards, 6 T. R., 13S, 143.)

On the ninth December, Foote came to the bank, and on inquiry was told that the check had not been paid, and was informed that no notice of protest or non-payment had been given upon the check. He was not informed what had been done in respect to the check.

Under these circumstances, although he may, by giving the new note, have waived any right growing out of the non-protest of the check, he cannot be deemed to have waived the effect of its payment. As to that, he stands as if the new note had never been given.

I think there should be a reversal of the judgments at general and special term, and a new trial, with costs to abide the event. •


source: Caselaw Access Project

author: Andrews, J.

license: Public Domain

text:
    Charles E. Fleming et al., Respondents, v. Elbert L. Burnham et al., Simon Sternberger et al., Executors, etc., purchasers, etc., Appellants.
    The purchaser of land at a judicial sale is entitled to a marketable title.
    A title open to a reasonable doubt is not a marketable one, and the court cannot make it one by passing upon an objection depending on a disputed question of fact, or a doubtful question of law, in the absence of the party in whom the outstanding right is vested.
    A purchaser, therefore, on partition sale may not be compelled to complete the purchase where there are such objections to the title.
    The parties in a partition suit claimed title through a deed from executors of McK., who died in 1828, seized of the premises, and whose will gave a power of sale to his executors, “ or.such one or more of. them as shall take upon him or themselves the burthen of the execution of the will.” Four persons were named as executors ; letters testamentary were issued to three of them ; two of them only joined in the deed, which was executed in 1833 ; it described them as acting executors, reciting the authority conferred by the will. McK. entered into possession in 1833, and he and others occupied under his title until 1881, without any question as to the validity of the executors’ deed. Upon application of a purchaser at the partition sale to be relieved from his purchase, it appeared that the two executors, prior to the execution of the deed, did other acts as acting executors. There was no evidence, however, of a renunciation of his office by the other executor to whom letters were issued, or refusal ou his part to act. Four of five beneficiaries, having an interest in the real estate under the will in 1835, joined in a quit-claim deed to De F., grantee in the deed from McK.’s executors, and until 1875, no other person having an interest in questioning the title was in a position to do so. Feld, that although the facts might have justified a jury in finding that said executor did renounce or refuse to act, yet such a finding would depend upon inferences not incontrovertible, and not binding upon those who might claim title as against the purchaser; and that there was such a doubt in respect to the fact, the court ought not to compel the purchaser to complete his purchase.
    (Argued June 18, 1885 ;
    decided October 6, 1885.)
    The will of McK. devised the real estate in question to his five children, “ their heirs, executors, administrators and assigns,” but provided in a subsequent clause that in case any of his children died leaving lawful issue surviving, that such issue should take the share which “his or her parent would have been entitled to if living.” J., one of the testator’s sons, died in 1875 leaving issue. The parties to the action claimed that the children of McK took an absolute fee, and that De F. in any event acquired title to four-fifths by the quit-claim deed, and as to the other fifth, by adverse possession. Held, that as the law stood prior to the Revised Statutes, the question whether said children took a fee absolute, or determinable on their death leaving issue, was at least a doubtful one, and the quit-claim deed did not remove the doubt growing out of the manner of execution of the power of sale.
    Also held that the title of De F. did not commence to be adverse as against the issue of J. until his death in 1875.
    Possession does not begin to be adverse as against a person entitled after the determination of a prior estate, during the continuance of that estate. Fleming v. Burnham (36 Hun, 456), reversed.
    Appeal from, order of the General Term of the Supreme Court, in the first judicial department, made May 8, 1885, which reversed ah order of Special Term, discharging Mayer Sternherger, a purchaser on sale under the judgment herein from his purchase, and which directed the executors of said purchaser, he having died after the making of the Special Term order, to complete the purchase. (Mem. of decision below, 36 Hun, 456.)
    The action was for partition; the parties claimed under the title of John McKie, who died in 1828 seized of the premises, leaving a will by which he devised said premises to his five children named, “their heirs, executors, administrators and assigns forever, share and share alike.” After various other provisions, the will contained the following:
    “ Item. It is my will and pleasure, and I do hereby direct that in case of the death of any or either of my said children, either before or after my decease, leaving lawful issue him or her surviving, that such issue shall have and take the share and proportion of my estate his or her parent would have been entitled to if living, to hold the same to him, her, or them, his, her, or their heirs, executors, administrators and assigns forever.

      Item. It is my will and pleasure, and I do hereby declare and direct that in case of the death of any or either of 'my said children under the age of twenty-one years, either before or after my death, without lawful issue him or her surviving, that the share or proportion of my estate, by this my will given to him or her so dying without lawful issue, shall go to and vest in his, her or their brothers and sisters, him, her or them surviving, their heirs, executors, administrators and assigns, share and share alike, and in such case and event I do hereby give and devise the same to the said survivors of them, my children, their heirs, executors, administrators and assigns, share and share alike.

      Item. For the more easy and equitable distribution and settlement of my estate in the manner and the proportions aforesaid, I do hereby direct and fully authorize and empower my executors hereinafter named, or such one or more of them as shall take upon him or themselves the burden of the execution of this, my will, as soon as convenient after my decease, to sell and dispose of all and singular my real estate, be the same where it may, and to make and execute to the purchaser or purchasers thereof good and sufficient deed or deeds of conveyance for the same, and . to pay and apply the proceeds thereof in the manner and proportions hereinbefore by me directed concerning the same. And lastly, I do hereby constitute and appoint my son-in-law, James Clarke, my sons, Thomas McKie and William McKie, and my son-in-law, Andrew Stark, executors of this my last will and testament, with full power for them, or such one or more of them, as shall take upon him or themselves, the burthen of the execution of 'this my will, to do all and every act, matter and thing needful and necessary to carry this my last will and testament into full effect, according to the true intent and meaning thereof, in the same manner as if all of my said executors had taken upon themselves the burthen of the execution thereof.”
    The testator’s son Thomas died in 1875 leaving issue, one of them an infant ten years of age.
    The further material facts are contained in the opinion.

      Samuel Hand for appellants.
    The power of sale given by John He Kie in and by his will to his executors was not well executed by the deed to De Forest in which only two' of the three executors who had qualified and were then living joined. (1 R. S. 735,. § 112; Taylor v. Morris, 1 Comst. 341; Code, § 2642.) The deed from the children of John McKie (even if given by all) to De Forest did not supply the defective execution of the power of sale by the two executors, nor give DeForest a good title to the lands in question. (Chrystie v. Phyfe, 19 N. Y. 344; Shriver v. Shriver, 86 id. 575.) By an executory devise a testator may dispose of his whole estate, but upon some future contingency may qualify that disposition, and devise the estate to some other person. (4 Kent’s Com. 268, 269; Cruise’s Digest, Devise, 441; Jackson v. Bull, 10 Johns. 19 Jackson v. Delancey, 13 id. 537; Campbell v. Beaumont, 91 N. Y. 464; 19 id. 351.) The word “ assigns ” in the devise to Thomas does not alter the case. (16 Johns. 382.) Nor did the devise to the issue of Thomas, living at his death, create an estate tail in Thomas within the rule in Shelley’s Case. (Chrystie v. Phyfe, 22 Barb. 213; Lytle v. Beveridge, 58 N. Y. 592.) The rule in Shelley’s Case must give way to the plain intent of the testator. (Rogers v. Rogers, 3 Wend. 503; Tanner v. Livingston, 12 id. 83.) The word “ issue ” is only taken to be a word of limitation when it signifies all the descendants in all generations. (19 N. Y. 353; Cushing v. Henry, 4 Paige, 345.) No title to it has been acquired by adverse possession. (Jackson v. Schoonmaker, 4 Johns. 390; Jackson v. Sellick, 8 id. 262; Jackson v. Johnson, 5 Cow. 74.) A purchaser at a partition sale has a right to require a good title, and will not be compelled to complete his purchase and accept a deed which leaves him to the uncertainty of a doubtful title or to the hazard of a contest with other parties, which will seriously affect .the value of the property. (Jordan v. Poillon, 77 N. Y. 518; Shriver v. Shriver. 86 id. 575; Argall v. Raynor, 20 Hun, 267.) The court acquires jurisdiction of the person of a defendant in a foreclosure suit by service of the summons. If the defendant be not served with the summons, the court acquires no jurisdiction of his person. (Ingersoll v. Mangam, 84 N. Y. 622; Gotendorf v. Goldsmith, 83 id. 110.)

      Alexander Bain for plaintiffs, respondents.
    As William McKie did not die until April, 1836, more than three years after the date of the deed in question, it was presumably after the distribution and payment to him of his share of the proceeds of the sale. (Roseboom v. Mosher, 2 Den. 61; Sharp v. Pratt, 15 Wend. 610.) If the children of John McKie took a fee in his residuary estate under their father’s will, as they clearly did, then the deed from them to DeForest was good, and vested the fee therein, whether the deed executed by two only of the three executors who qualified was valid or not. (Jarman on Wills, 420; Kane v. Astor, 5 Sandf. 533 ; Lovell v. Kingsland, 41 Barb. 560; Lovell v. Gillender, 35 N. Y. 617; Post v. Post, 47 Barb. 72; 1 Rob. on Wills, 356; 4 Mass. 208; Parks v. Parks, 9 Paige, 107; Covenhoven v. Shuler, 2 id. 107; Parsons v. Best, 1 T. & C. 211; Clark v. Leupp, 88 N. Y. 228; Jackson v. Bull, 10 Johns. 19; Campbell v. Beaumont, 91 id. 464; Chrystie v. Phyfe, 19 id. 344.) The record shows the mortgage satisfied of record. If it were not so, after the lapse of fifty years, satisfaction will be presumed. (Code of Civ. Pro., § 381.) A purchaser cannot justify his refusal to perform his contract by a mere captious objection to the title tendered him. It is not sufficient for him merely to raise a doubt as to the title. Before he can successfully resist, he must show such reasonable doubt as affects the value of the property and interferes with its sale to a reasonable purchaser, and thus render the land unmarketable. There is no inflexible rule that the purchaser must be furnished with a perfect record or paper title. (Hellreigel v. Manning, 97 N. Y. 56; Shriver v. Shriver, 86 id. 575; Ottinger v. Strasburger, Daily Register, Dec. 20, 1884.)

      M. L. Townsend for respondent Burnham.
    It was not necessary that William McKie should have renounced as executor, in order that the other two executors should be clothed with the execution of the power of sale contained in the will. It was enough that William had refused or declined to act, or was incapacitated from acting. (Roseboom v. Mosher, 2 Denio, 61; Sharp v. Pratt, 15 Wend. 610.) DeForest, at the time of his death in 1872, had a good indefeasible title to the premises, and it is the duty of the court to so hold to the end, that the title may be established and the property made marketable. (Ottinger v. Strasburger, 33 Hun, 466; Shriver v. Shriver, 86 N. Y. 575; Schermerhorn v. Niblo, 5 Bosw. 161; Hellreigel v. Mannimg, 97 N. Y. 56; McCahill v. Palmer, 45 id. 479; Ward v. Warren, 82 id. 265; Wolsey v. Morse, 19 Hun, 273.) The claim of the purchaser that Thomas McKie took an estate for life only in' one-fifth of the property with remainder to his issue, and for that reason the release by Thomas was not good, is not well founded. (Roseboom v. Roseboom, 81 N. Y. 350; Freeman v. Coit, 96 id. 63.) The mortgage was as a matter of fact satisfied and discharged of record in 1883, and remains canceled, and is not a lien upon the premises. (Belmont v. O'Brien, 2 Kern. 394.)
   Andrews, J.

The most serious objection made by the purchaser relates to the sufficiency of the deed of February 14, 1833, from Thomas McKie and Andrew Stark, two of the four executors named in the will of John McKie, to Gerardus DeForest, to pass title to the premises in question. It is insisted that William McKie, one of the executors named, duly qualified, and should have joined in the execution of the deed. It is conceded that John McKie died seized in 1828. The answer made to the objection is two-fold, first, that the deed was a valid execution of the power of sale vested in the executors of McKie by his will, and second, that the five children of the testator took under the will a title in fee-simple to the land, and that conceding that the conveyance by the two executors was not a valid exercise of the power of sale, nevertheless the title of DeForest as to four-fifths of the premises was ratified and confirmed by the quit-claim of April 29, 1835, executed by all the children of the testator, except his son William, and that the title to the share of William, who died in 1836, is barred by adverse possession. It is further claimed that it must be presumed that William received his proportion of the purchase-money on the sale to DeForest, and that the acceptance by him of his share of the consideration, operated as an estoppel, and precluded him, or those claiming under him, from questioning the validity of DeForest’s title.

The sufficiency of the first answer, if true, needs no argument. But if the conveyance by the two executors was not a good execution of the power of sale contained in the will, the sufficiency of the second answer depends upon the correctness of the assumption on which it proceeds, viz.: that under the will the five children of the testator took an absolute fee in the premises. If they took a fee-simple, the quit-claim of April 29, 1835, vested in DeForest a good title to four-fifths of the land, and as to the one-fifth devised to the testator’s son William, his title and that of his heirs is apparently barfed by adverse possession. On the other hand, if under the will the children of the testator took only a base or qualified fee, determinable upon their death, leaving issue, or upon their death under twenty-one years of age, without issue, and the fee on the happening of the contingent event was given over to their issue, or to the brothers and sisters as the case might be, then manifestly the quit-claim deed did not bar the right of the issue of the children, or cut off the ultimate fee given to them on the death of the parent. The deed might become the fonndation for an adverse possession, as it purported to be a conveyance in fee, but in this way only could it affect their rights. But an adverse possession under the deed could not be deemed to commence as against the ultimate devisees,- until the determinate of the precedent estate and the accruing of their absolute title in possession. For it is well settled that the statute does not commence to run against a person entitled after the determination of a prior estate, during the continuance of that estate. (Jackson v. Schoonmaker, 4 Johns. 390 ; Jackson v. Sellick, 8 id. 262; Jackson v. Johnson, 5 Cow. 74.) Upon the assumption, therefore, that the issue of the children of the testator took under the will, upon the death of the parents respectively, an estate in fee, as purchasers, in the share of their parents, it is clear, upon the conceded fact that Thomas, one of the sons of the testator lived until 1875, and that he died in that year, leaving issue, one of whom was an infant of the age of ten years, that as against such issue no title by adverse possession had been acquired under the deed of April 29, 1835. There was no right of entry in the children of Thomas until his death. The deed conveyed his title to DeForest, whatever it was, with the right of possession during his life. His children coiild maintain no action to recover the premises until their right to the possession accrued. The questions, therefore, presented for consideration are, first, as to the validity of the deed from the two acting executors, as an execution of the power of sale, and the further question as to the quality of the estate devised by the will of John MeEue to his children, and also the question of adverse possession.

It is material^ in the first place, to consider the principle upon which objections to title on a judicial sale are to be treated and adjudicated. The purchaser is entitled to a marketable title, free from reasonable doubt. The purchaser bids on the assumption that there are no undisclosed defects. The purchaser pays and the seller receives a consideration, regulated in view of this implied condition. Objections which are merely .captious or mere suggestions of defects which no reasonable man would, consider, although within the range of possibility or those which are clearly invalid by the law as settled, whatever doubts may at a former time have existed as to the questions raised, are not available to a purchaser, and will be disregarded. But the question presented to the court on an application to compel a purchaser on a judicial sale who raises objections to the title tendered to complete the purchase, is not the same, as if it was raised in a direct proceeding between the very parties to the right. Where all the parties in • interest are before the court and the court has jurisdiction to decide, they are concluded by the judgment pronounced, so long as it stands unreversed, however imperfectly the evidence or facts were presented upon which the adjudication was made, or however doubtful the adjudication may have been in point of law. If the controversy involves a disputed question of fact, or the. evidence authorizes inferences or presumptions of fact, the finding of the tribunal makes the fact what it is found to be for the purposes of the particular case, although the evidence of the fact may be weak and inconclusive, or although it is apparent that there are sources of information which have not been explored, which if followed might have removed the obscurity. The parties are nevertheless concluded in such a ease, because they were parties to a judicial controversy before a tribunal constituted for the very purpose of deciding rights of persons and property and before which they had an opportunity to be heard. But the court stands in quite a different attitude, where it is called upon to compel a purchaser to take title under a judicial sale, who asserts that there are outstanding rights and interests not cut off or concluded by the judgment under which the sale was made. The objection may involve a mere question of fact or it may involve a pure question of law upon undisputed facts. In either case it may very well happen that the question is so doubtful that, although the court would decide it upon the facts disclosed, in a proceeding where all the parties interested were before the court, nevertheless it would decline to pass upon it in a proceeding to compel a purchaser to take title and would relieve him from bis purchase. The reason is obvious. The purchaser is entitled to a marketable title. A title open to a reasonable doubt is not a marketable title. The court cannot make it such by passing upon an objection depending on á disputed question of fact, or a doubtful question of law, in the absence of the'party in whom the outstanding right was vested. He would not be bound by the adjudication and could raise the same question in a new proceeding. The cloud upon the purchaser’s title would remain, although the court undertook to decide the fact or the law, whatever moral weight the decision might have. It would especially be unjust to compel a purchaser to take a title, the validity of which depended upon a question of fact, where the facts presented upon the application might be changed on a new inquiry or are open to opposing inferences. There must doubtless be a real question and a real doubt. But this situation existing, the purchaser should be discharged. (Shriver v. Shriver, 86 N. Y. 575, and cases cited; Hellreigel v. Manning, 97 id. 56.)

The power of sale in the will of John McKie was vested in his executors named in the will, or such one or more of them as shall take upon him or themselves the burden of the execution of the will.” There were four persons named as executors. On the probate of the will in 1828, as a will of personal estate, letters testamentary were issued to three of the executors, viz.: Thomas McKie, William McKie and Andrew Stark. The will was proved as a will of real estate in 1833. William McKie did not join in the deed to He Forest of February 14, 1833. If he qualified as executor, and, with his co-executors Thomas McKie and Andrew Stark, undertook the burden of the execution of the will, and was not subsequently discharged, or did not renounce his executorship, or refuse to act as executor, then it seems to be conceded that the power of sale was not well executed by the conveyance of his two co-executors, in which he did not join. The court below inferred a renunciation or refusal to act on the part of William McKie, from certain facts which appeared, prominent among which. are the circumstances; that in, 1832 Stark and Thomas McKie took from the • city of New York a release of certain quit rents charged on the premises in their names as acting executors; that the deed of February 14, 1833, describes the grantors as acting executors, and recites the authority conferred by the will; the advertisement and sale of the premises at public vendue to De Forest for $16,150; that De Forest in 1833 entered into possession of the premises under the deed from the two executors, and continued in possession until his death in 1873, and that the premises continued to be occupied under his title until the commencement of the present action in partition in 1881, without any question having been raised as to the validity of the executors’ deed. On the other hand it may be plausibly urged that the issuing of letters testamentary to William McKie, in connection with Stark and Thomas McKie, creates a presumption that William McKie did take upon himself in 1828 the execution of the will; that there is no evidence of any actual renunciation of his office as executor, or refusal to act; that the explanation of the quit-claim of April 29, 1835, may be, that it was procured to remove a doubt or to remedy some supposed defect in respect to the execution of the power by the deed of February 14, 1833 ; that it was not until the death of the children of John McKie that any persons were in a position to question the title of De Forest and his grantees, except the testator’s son William, and he received, as may be supposed, his share of the consideration of the sale by the executors, and had no interest to question the title. We do not intend to say that a jury might not be justi- ' fled, upon the facts presented on the application in this case, in finding that William McKie did renounce his executorship or refuse to act as executor prior to February 14, 1833. (See Doyle v. Blake, 2 Schoales & L. 229; Wasson v. King, 2 Dev. & B. 262.) But such a finding would depend upon inferences and presumptions by no means incontrovertible, and would not bind the issue of the children of the testator, claiming title as against the purchaser in this proceeding, and there is, we think, such a doubt in respect to the fact that the court ought not to compel the purchaser to complete his purchase upon the assumption that Stark and Thomas McKie were the only executors authorized or required to join in the execution of the power. In an action of ejectment by the children of Thomas to recover their interest, would the court be authorized to direct a nonsuit, against them on the ground that the facts (as now presented) conclusively established a good execution of the power of sale? We think this'question must be answered in the negative.

The question whether the children of the testator, John McKie, took under the will an absolute fee, or only a fee determinable on their death, leaving issue, is one .of law purely arising on the construction of the will. It is a question which, under the decision of this court in Chrystie v. Phyfe (19 N. Y. 344), would require grave consideration before pronouncing against the claim of the issue to take as purchasers. The quitclaim of April 29, 1835, does not, therefore, remove the doubt cast upon the title growing out of the execution of the power of sale. The answer to the claim that De Forest and his grantees have acquired a title by adverse' possession has been indicated. The possession did not commence to be adverse against the issue of the testator’s son Thomas until his death in 1875, and it is the question as to the rights of the issue of the children of John McKie which creates the doubt as to the title tendered to the purchaser in this proceeding.

These views lead to a reversal of the order of the General Term, and the affirmance of the order of the Special Term, discharging the purchaser, etc.

All concur.

Ordered accordingly.


author: Rapallo, J.

text:
    William Zorntlein, Respondent, v. George Adam Bram et al., Appellants.
    The common-law rule that where land is deeded to husband and wife, they each become seized of the entirety, and on the death of either the whole survives to the other, was not abrogated by the acts in relation to married women.
    (Argued June 1, 1885 ;
    decided October 6, 1885.)

      It seems, also, that said rule was not done away with by the act of 1880 (Chap. 472, Laws of 1880), allowing the husband and wife to make division between themselves of land so held.
    At all events said act does not affect the right of survivorship where the conveyance was prior to its passage.
    Said act, therefore, cannot so operate as to authorize either the husband or wife, who acquired title under such a conveyance, prior to the passage of said act, separately to convey to a third person, and such a deed conveys no title. «

      Zorntlein v. Bram (17 J. & S., 476), reversed.
    Appeal from judgment of the General Term of the Superior Court of the city of New York, entered upon an order made December 30, 1882, which affirmed a judgment in favor of defendant, entered upon a decision of the court on trial at Special Term. (Mem. of decision below, 17 J. & S. 476.) This was an action for partition.
    In 1878 the property in question was conveyed to Jacob Bram and Babeta Bram, his wife. On September 23, 1881, said Babeta Bram executed a deed purporting to convey an undivided one-half of the premises to plaintiff. On September 30, 1881, said Jacob and Babeta Bram joined in a deed of the premises to defendant, George A. Bram.

      David Gerber for appellants.
    As the deed conveyed the property to Jacob Bram and his wife jointly, they became tenants by the entirety, and not tenants in common; and during the life-time of her husband, Mrs. Bram could not convey to the plaintiff any title to the property. (Bertles v. Nunan, 92 N. Y. 152.) The defendant claiming under a deed transferring the property to him in fee, and holding adversely to the plaintiff, an action of partition will not lie. (Florence v. Hopkins, 46 N. Y. 182; Sullivan v. Sullivan, 66 id. 37; Clapp v. Bromaghan, 5 Cow. 530; Van Schuyler v. Mulford, 59 N. Y. 420; Martin v. Martin, 15 Weekly Dig. 233.) The judgment is final and appealable to this court. (Halsted v. Halsted,
      55 N. Y. 442; Morris v. Morange, 38 id. 172; Howell v. Mills, 56 id. 226 ; Austin v. Ahearn, 61 id. 6; Sullivan v. Sullivan, 66 id. 37.)

      H. M. Gesheidt for respondent.
    The conveyance of Bertha Metzger to Jacob Bram and wife was as tenants in common. (1 R. S., part 2, title 2, art. 2, §44; R. S. [Banks 6th ed.] 1104, § 442; 3 id. 160; Sims v. Pickets, 9 Am. Rep. 679 ; 31 Ind. 181; Koufman v. Whiting, 50 Miss. 103 ; Rowland v. Palmer, 50 Ala. 182; Monroe v. May, 9 Kans. 466 ; Cushman v. Henry, 7 N. Y. Weekly Dig. 15 ; Meeker v. Wright, 76 N. Y. 262.) The wife held the property with her husband, as her separate estate, and she could have brought an action against him to partition the same, or either party could sell their interest. (Laws of 1848, chap. 200; Laws of 1849, chap. 375; Laws of 1860, chap. 90; Laws of 1862, chap. 172; Laws of 1880, chap. 472 ; Meeker v. Wright, 76 N. Y. 267; 23 id. 53); and she can hold property with him. (76 N. Y. 270.) The defendant cannot attack plaintiff’s title, as he, the defendant, was a subsequent purchaser, and defendant had due notice thereof-(3 R. S. [5th ed.] 58, par. 65; Shut v. Large, 6 Barb. 373.) The defendant took his title subject to all the equities of the previous grantors the same as an assignee of a mortgage. (Murray v. Livingston, 2 Johns. Ch. 441; James v. Mowrey, 2 Cow. 246 ; Evans v. Ellis, 5 Den. 640; Ellis v. Messerole, 11 Paige, 467.) The common-law principle cannot be applied in this case, as there are statutes against the same, and the former must give way. (Power v. Lester, 23 N. Y. 529; 76 id. 267; 45 id. 230; 53 id. 93; 37 id. 35; 85 id. 421; 47 id. 577; 75 id. 103; Laws of 1848, 1849, 1860, 1862 and 1880, chap. 472; 17 How. 416.) All the cases to the contrary, that Jacob Bram and Babeta Bram were not tenants in common were either decided before the act of 1860, chapter 90, or were grants before the various acts to protect the rights of married women. (Goelet v. Gori, 31 Barb. 341; 14 N. Y. 433 ; 20 id. 320; 15 Wend. 175; 1 Sandf. Ch. 214; Hoffm. Ch. 71; 5 Johns. Ch. 431; 9 Abb. [N. S.] 444; 16 Johns. 110 ; 8 Cow. 277.)
   Rapallo, J.

This case is controlled by the decision in Bertles v. Nunan (92 N. Y. 152). The common-law rule, that when land is conveyed to husband and wife they do not take as tenants in common, or as joint tenants, but each becomes seized of the entirety, jper tout and no't per my, and that on the death of either the whole survives to the other, was held in that case to be still subsisting in this State, notwithstanding the acts in relation to married women. The act of 1880 (Chap. 472), which allows husband and wife to make division between themselves of lands thus held, was before us in that case, but was not regarded as abrogating the former rule. At all events it could not affect the title in question in this action as the conveyance to Jacob Bram and his wife was made in 1878. The seizin of the entirety by each, and the right of survivorship, could not be divested by a subsequent statute, as those rights vested by virtue of the grant and not of mere succession. The act of 1880 could not, therefore, so operate as to authorize either the husband or wife separately to convey to a third party. The deed executed by Mrs. Bram to the plaintiff conveyed no title and he could not maintain an action for partition.

The exceptions to the conclusions of the referee to the contrary are well taken and require a reversal of the judgment.

It is unnecessary to discuss the extraneous questions raised in the respondent’s points as to the circumstances attending the purchase of the property. ,

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

All concur.

Judgment reversed.


text:
    James Goodfellow, Appellant, v. The Mayor, Aldermen and Commonalty of the City of New York, Respondent.
    A municipal corporation charged with the duty of keeping its streets in safe condition for travel does not discharge its whole duty hy simply instructing its subordinates to ascertain the facts and report. If a defect exists, which, is in fact dangerous, the. opinion of such subordinates that it is not, and a consequent failure on their part to report it, is not a defense against a charge of negligence in not repairing it.
    (Argued June 3, 1885 ;
    decided October 6, 1885.)
    In an action to recover damages for injuries alleged to have been caused by defendant’s negligence in omitting to repair a crosswalk on one of defendant’s streets, plaintiffs testimony tended to show that a stone in the walk had been out of place for over a year ; the stone was five feet long and two feet wide ; the grade of the crosswalk was about half an inch to the foot ; the north-west corner of the stone was on the level; at the south-east corner it was eight inches, and at the south-west, five inches below the level. The city had passed an ordinance requiring the policemen on duty' to inspect crosswalks ; this walk had been inspected and the policemen testified that they observed nothing dangerous, and did not report. Held, that the facts were sufficient to charge the city with notice of the defect; that the passage of the ordinance and the failure of the policemen to report did not shield the city ; that the irregularity in the crosswalk was not so slight as to make the question of negligence in omitting to repair, one of law ; but that it was one of fact for the jury; and therefore that a nonsuit was error.
    Appeal from judgment of the General Term of the Superior Court of the city of New York, entered upon an order made February 4, 1884, which affirmed a judgment in favor of defendant, entered upon an order dismissing plaintiff’s complaint on trial.
    This action was brought to recover damages for injuries alleged to have been caused by defendant’s negligence.
    Plaintiff, in crossing a street in the city of New York, upon a crosswalk, fell and was injured; one of the stones of the crosswalk was and had been for over a year misplaced, and this occasioned the accident.
    The further material facts appear in the opinion.

      B. F. Mudgett for appellant.
    It must be conceded in determining the correctness of the nonsuit in this action that the crosswalk complained of was in a dangerous condition, and that the plaintiff was injured in consequence thereof. (Rehberg v. Mayor, etc., 91 N. Y. 151.) The city had actual notice of the condition of the crosswalk by notice to the police officers on duty and to the officers called by defendants. (91 N. Y. 143.)

      D. J. Dean for respondent.
    The city is not an insurer against accident of all persons using the streets. (Dill, on Mun. Corp., §§ 10, 15; Ring v. Cohoes, 77 N. Y. 86; McMahon v. Second Ave. R. R., 75 id. 236.) In order to establish actionable negligence, the plaintiff must prove a condition of unsafety so evident and notorious that it was neglect not to have discovered the dangerous condition and procured the amendment thereof. (Masterson v. Mt. Vernon, 58 N. Y. 394; Smith v. Mayor, etc., 66 id. 295 ; McCarthy v. Syracuse, 46 id. 197; Hume v. Mayor, etc., 47 id. 646; Griffin v. Mayor, etc., 5 Seld. 456; Mayor, etc., v. Sheffield, 4 Wall. 189 ; Hart v. Brooklyn, 36 Barb. 227; 2 Thomp. on Neg. 762; Dill, on Mun. Corp., § 797.) The city cannot be held liable for the inclination or sloping of the stone in the crosswalk in accordance with the plan upon which all crosswalks are constructed, which requires them to slope in a gradual ascent from the gutter to the center of the street, in conformity to the adjacent street pavement. (Urquhart v. Ogdensburg, 91 N. Y. 67; Mills v. Brooklyn, 32 id. 4S9.) If there was any ice upon the stone it could only have been that which was formed by the congealing of the dampness remaining thereon from the rain, and frozen after nightfall ; and for this the city would not be liable for damages, since its existence was unavoidable, and not the consequence of neglect by its officers. (Levy v. Mayor, etc., 1 Sandf. 467.) A verdict in favor of the plaintiff, finding the defendants guilty of negligence upon the proof herein, would be set aside as against the evidence; the issue of negligence was, therefore, properly decided by the court, and should not be submitted to the jury. (Wilds v. H. R. R. R. Co., 24 N. Y. 413 ; Toomey v. R. R. Co., 91 Eng. C. L. 148; Davis v. Third Ave. R. R. Co., 41 Super. Ct. 35; Ryan v. Thompson, 38 id. 133.)
   Rapallo, J.

The nonsuit was not granted on the ground that the evidence failed to show that the crosswalk, on which the plaintiff fell, was in a dangerous condition. The trial judge held that the facts of the accident having happened, and of the crosswalk being in a dangerous condition, were not sufficient to render the city liable ; that notice of the dangerous condition of the walk and the omission of reasonable care to repair it were essential, and the nonsuit was placed upon the ground that the city had passed an ordinance requiring the policemen on duty to inspect crosswalks ;that such inspection had been made, embracing the particular crosswalk in question, and the policemen testified that they observed nothing dangerous and reported nothing to the city. From these facts the learned court drew two conclusions: First, that the city did not have notice of the dangerous condition of the crosswalk ; and, secondly, that it took all the care corporations could take, by instructing its subordinates to ascertain what the facts were and report.

We cannot accede to this view of the law. The displacement of the stone on which the plaintiff fell had continued such a length of time that notice of the defect might, on that ground, have been imputed to the defendant, but its subordinates, charged with the duty of inspection, also had actual notice of the defect, and their failure to report cannot shield the city. Neither is their opinion that the defect did not render the crosswalk dangerous any defense against the charge of negligence in not repairing it, if it was in fact dangerous. That was a question to be determined by the jury and not by the opinion of the policemen, and their failure to observe its dangerous condition, if in fact it existed and was apparent, is not a defense to the city. Neither can we accede to the doctrine that the city performs its whole duty in respect to keeping the streets in safe condition for travel by instructing its subordinates to ascertain the facts and report.

On the argument in this court the counsel for the city endeavored to sustain the nonsuit on the ground that the displacement of the stone was so slight that the jury would not have been warranted in finding as matter of fact that it rendered the crosswalk unsafe, and a verdict to that effect could not have stood.

On this point there is a serious conflict in the evidence. The displaced stone was five feet long by two feet wide. The regular grade of the crosswalk was such that there was a rise of seven inches in the center. The length of the walk being thirty feet, this grade caused a fall on each side of seven inches in fifteen feet, or about half an inch to the foot. According to the testimony on the part of the defendant, this stone sloped toward the south two and eight-tenth inches on the westerly side and four and one-half inches on the easterly side, from the highest point. But according to the testimony on the part of the plaintiff the depression of the stone below the level was eight inches at the south-east corner and five inches at the southwest corner, the north-west corner being on the level. Whether these irregularities were sufficient to render the walk unsafe, and call for repairs, was not a question of law which the court below undertook to decide, nor which we will now undertake to decide. There may be eases of irregularity in the pavements of streets so slight that the court would be justified in holding that it was not negligence on the part of the city to omit to repair them, or that the evidence of negligence was too slight to submit to a jury. But, taking the testimony on the part of the plaintiff, we cannot so hold in the present case. In Clemence v. Auburn (66 N. Y. 334) there was a depression of six inches in three and one-half feet in a stone in the sidewalk, upon which the plaintiff slipped and fell. This court (p. 342) held that whether this rendered the walk unsafe was, upon the evidence, a proper question for the jury. The depression in the present case was, on the plaintiff’s testimony, eight inches in one corner of a stone five feet by two, and the circumstances were not precisely similar. A slope which is regular and in accord with that of the adjoining pavement may be much safer than one which is accidental or irregular and the result of want of repair. In such cases the question cannot be determined by nice calculations, and the question of negligence should be determined as one of fact in view of all the circumstances.

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

All concur.

Judgment reversed.


author: Ruger, Ch. J.

text:
    The People, ex rel. Morris Frey, Appellant, v. The Warden of the County Jail of New York County et al., Respondents.
    Under the provisions of the Code of Civil Procedure in reference to the writ of habeas corpus (§ 2031 et seq.; see, also, similar provisions of Revised Statutes, 2 R. S. 567, § 38 et seq.), it is the duty of the court or judge issuing the writ, upon a hearing on return thereto, where it appears the prisoner is held in custody under a judgment or decree, to inquire into the jurisdiction of the tribunal to render the judgment or decree, and to discharge the prisoner where it appears there was a lack of jurisdiction over the person or the subject-matter.
    Courts-martial and delinquency courts being courts of special and limited jurisdiction, judgments pronounced by them, when questioned in any collateral proceeding, are of no force or effect as establishing a right to enforce them, unless accompanied by proof of the jurisdictional facts upon which the authority of the court to render them depends.
    The recital of jurisdictional facts in the records of such courts does not furnish even prima fade evidence of their existence.
    Such proof, whenever furnished, is subject to the right of the person affected thereby to controvert it and to show want of jurisdiction.
    The existence of a valid enlistment is essential to give a delinquency court jurisdiction either over the person proceeded against or the subject-matter, and as by the provision of the National Guard Act (§ 40, chap. 299, Laws of 1883) declaring that no minor shall be enlisted without the consent of his parent or guardian, such a consent is made a condition of a valid enlistment, and without it the court acquires no jurisdiction.
    A return to a writ of habeas corpus alleged in substance that F., the relator, was detained by virtue of a warrant duly issued to enforce the collection of a fine imposed by a delinquency court; that, though a minor at the time of his enlistment, the same was legal and proper by reason of the consent of his father thereto. The relator traversed the return, alleging the invalidity of his enlistment on account of his minority, and for want of consent of his father, and denied the jurisdiction of the court; this was supported by the affidavit of the father, to the effect that he never consented, and immediately upon learning of the enlistment, he repudiated it, and by the affidavit of the relator that the alleged consent was signed by himself at the suggestion and in the presence of the enlisting officer. It was not alleged that the relator ever performed any military duty, or in any way acknowledged any obligation imposed by the enlistment. It did not appear that the question of jurisdiction was raised or determined by the delinquency court. Upon the hearing on the return, the court declined to hear any evidence relating to the relator’s enlistment on the ground that the determination of the delinquency court was conclusive upon that question. Held error.
    (Argued June 3, 1888;
    decided October 6, 1885.)

      People, ea rel. Frey, v. Warden, etc. (34 Hun, 393), reversed.
    Appeal from order of the General Term of the Supreme Court, in the first judicial department, made January 19,1885, which affirmed an order of Special Term, dismissing a writ of habeas corpus, and remanding the relator to custody. (Reported below, 34 Hun, 393.)
    The material facts are stated in the opinion.

      Isaac L. Sink for appellant.
    The relator was enlisted under age and without his father’s consent under false and fraudulent representations, and not in accordance with law. (Laws of 1883 chap. 299 ; Military Code, 1883, art. 6, §§ 40, 42.) The relator was denied the right to be heard by counsel, which was contrary to law. (Military Code, 1883, art. 14, § 108.) A return to the writ should have been made by the warden into whose custody the relator was given. (Code of Civ. Pro., § 2026.) The learned justice at Special Term before dismissing the writ should have heard the evidence upon all the material facts put in issue. (Code of Civ. Pro., § 2039.) The writ of habeas corpus was the proper remedy. (Matter of Hobbs, 21 How. Pr. 68.) Its very office is to enable the relator to show that he is illegally imprisoned, and that the regimental court marshal never had jurisdiction of him. (Matter of Divine, 21 How. Pr. 80; Matter of Tweed, 60 N. T. 559.)

      Horatio C. King for respondents.
    The question, whether the body or officer bad jurisdiction of the subject-matter of the determination under review could only be brought up under a writ of certiorari. (Civil Code, § 2140.) The relator had the right of appeal from the decision of the court-martial. (Military Code, § 117, p. 36.)
   Ruger, Ch. J.

The return of the defendants to the writ of habeas corpus in this case alleged in substance that the relator, Morris Frey, was detained in custody by virtue of a warrant issued to enforce the collection of a fine duly imposed by a delinquency court, for the non-performance by him of certain military duties enjoined by his superior officers. That said Frey was a duly enlisted member of company B, in the eleventh regiment of the National Guard of the State of New York, and though a minor at the time of such enlistment, the same was legal and proper by reason of the consent of his father thereto, and he thereby became legally subject to the performance of military duty. The relator traversed this return by alleging the invalidity of his enlistment on account of his minority, and for want of the consent of his father thereto, and denied the jurisdiction of the delinquency court in the premises. The traverse of the relator was supported by the affidavit of his father to the effect that he had never consented to the enlistment of his son, and also by his own affidavit that the alleged consent was one signed by himself, at the suggestion and in the presence of the enlisting officer, without the knowledge or consent of his father. It was nowhere alleged that the relator had ever performed any military duty or in any way acknowledged any obligation imposed upon him by the alleged enlistment, and it was proved by the affidavit of the father that immediately upon information coming to him, inferentially by the discovery of his son’s uniform, that his son had enlisted, he returned the uniform and repudiated the enlistment. Upon the hearing, the trial judge declined to hear any evidence relating • to the legality of the relator’s enlistment, upon the ground that the determination of the delinquency court upon that question was conclusive upon the relator in this proceeding, and remanded the relator to the custody of the defendant. Upon appeal to the General Term this order was affirmed upon the ground that the trial court, under the provisions of the Code relating to proceedings upon habeas corpus, had no authority to review the determination of the court-martial as to the validity of the relator’s enlistment, and the relator appeals therefrom to this court.

We think the courts below have erred in their disposition of this proceeding, and that their orders should be reversed. We have failed to find any thing in the return to show that the question as to the legality of the relator’s enlistment was raised or determined in the delinquency court. It is true that it is recited in the warrant issued by the president of the regimental court-martial, that it satisfactorily appeared to said court that said Frey was and is. a member of company B, in the eleventh regiment, and while it is possible that such a warrant might be a protection to an innocent officer attempting to execute the process, it does not furnish evidence in favor of the court issuing it of the facts therein recited when its jurisdiction is directly assailed. The Code of Givil Procedure, which is substantially a re-enactment of the Revised Statutes, so far as it is material to this case, provides with reference to the proceeding in question, as follows: § 2039. “ A prisoner produced upon the return of a writ of habeas corpus may under oath deny any material allegation of the return, or make any allegation of fact showing either that his imprisonment or detention is unlawful, or that he is entitled to his discharge. Thereupon the court or judge must proceed in a summary way to hear the evidence produced in support of or against the imprisonment or detention and to dispose of the prisoner as the justice of the case requires.’’ § 2032. “ The court or judge must forthwith make a final order to remand the prisoner if it appears that he is detained in custody for either of the following causes, and that the time for which he may legally be so detained has not expired.” Sub. 2. “By virtue of the final judgment or decree of a competent tribunal of civil or criminal jurisdiction, * * or by virtue of an execution or other process issued upon such a judgment, decree or final order.” § 2033. “ If it appears upon the return that the prisoner is in custody by virtue of a mandate in a civil cause he can be discharged only in one of the following cases: Snb. 1. When the jurisdiction of the court which, or of the officer who, issued the mandate has been exceeded either as to matter, place, sum or person.” § 2034. But a court or judge, upon the return of a writ issued as prescribed in this article, shall not inquire into the legality or justice of any mandate, judgment, decree or final order specified in the last section but one, except as therein stated.”

It would seem from these provisions that the competency of the tribunal to render the judgment or decree under which a person is held in custody, and their jurisdiction over him either as to matter, place, sum or person, is by the strongest implication made the subject of inquiry upon a hearing before a judge or court issuing a writ of habeas corpus, and the court is thereby expressly required upon the return of such a writ to institute an inquiry into the cause of detention, and' discharge the prisoner when there is a lack of jurisdiction on the part of the tribunal, making an order for his detention. It was held by this court in the case of People, ex rel. Tweed, v. Liscomb (60 N.Y. 559), that the provision in the Revised Statutes forbidding an inquiry into the legality and justice of any process, judgment, decree or execution upon a hearing under habeas corpus ” proceedings does not take from the court or officer having jurisdiction of the writ, the power, or relieve from the duty-of determining whether the judgment or process emanated from a court of competent jurisdiction, and whether the court had power to give the judgment or issue the process.. “It is an elementary principle recognized in all the cases, that to give binding effect to a judgment of any court whether of general or limited jurisdiction, it is essential that the court should have jurisdiction of the person, as well as the subject-matter, and that the want of jurisdiction over either, may always be set up against a judgment when sought to be enforced, or any benefit is claimed under it. (Ferguson v. Crawford, 70 N. Y. 257.) Questions as to the force and effect to be ascribed to the judgments of judicial tribunals depend much upon the form in which they arise, whether directly or collaterally —- the subject to which they relate, whether of person or subject-matter, and the character of the tribunal, whether of general or limited jurisdiction.

The questions arising in this case are governed by the rule favoring the widest latitude of examination, as the judgment assailed was rendered by a court of limited jurisdiction; and its authority, not only over the person of the relator, but also of the subject-matter is disputed. Courts-martial and delinquency courts are tribunals of special and limited powers, having jurisdiction only of offenses against military discipline committed by persons belonging to the particular branch of the service for which such courts are organized. (§§ 101-104, 123, chap. 299, Laws of 1883; Smith v. Shaw, 12 Johns. 257; Wilson v. Mackenzie, 7 Hill, 95; Mills v. Martim, 19 Johns. 7.) It is expressly provided by section 40, of chapter 299, Laws of 1883, that no person under the age of twenty-one years shall be enlisted without the consent of his parent or guardian, and this requirement is thereby made the condition of a valid enlistment. The existence of such an enlistment thus constitutes a part of the subject-matter of the jurisdiction of the delinquency court, and in its absence the court has no authority whatever over the offense or the person proceeded against. It is, therefore, a fundamental requisite to the jurisdiction of such courts that the persons over whom they attempt to exercise authority shall have been duly enlisted and be legally subject to the obligations of military discipline. Judgments pronounced by them when questioned in any collateral proceeding, are of no force or effect as establishing a right to enforce them, unless accompanied by proof of the jurisdictional facts upon which the authority of the court to render them depends. Such proof, whenever furnished, is always subject to the right of the person affected thereby to controvert it, and establish, if he is able to do so, the want of jurisdiction of the court whose authority is disputed. Unlike courts of general jurisdiction, the recital of jurisdictional facts in their records does not furnish prima facie evidence even, of their existence, but they must be affirmatively proved in order to establish the validity of the judgments rendered.

' It has been sometimes claimed, and is indeed supported by the authority of cases in some of the sister States and in England, that the recital of jurisdictional facts in the judgments of courts of general jurisdiction furnishes conclusive evidence of their existence, and precludes any inquiry into their existence when collaterally brought in question; but the weight of authority in this State seems to be against the proposition, and to the effect that such recitals are prima faeie evidence only of the facts recited. (Ferguson v. Crawford, supra ; Bloom v. Burdick, 1 Hill, 130; People v. Cassels, 5 id. 164.)

With reference to courts of limited and inferior jurisdiction, however, whether the record recites the jurisdictional facts or not, it has uniformly been held that their judgments are open to impeachment by extrinsic evidence showing want of jurisdiction, whenever they are sought to be used by way of defense or as a justification to persons seeking to enforce them. (Adams v. S. & W. R. R. Co., 10 N. Y. 328; Smith v. Shaw, 12 Johns. 257; Mills v. Martin 19 id. 7; People v. Cassels, 5 Hill, 164; Greenleaf on Evidence, 470.)

When, however, a court has jurisdiction of the subject-matter, and has acquired jurisdiction of the person by the service of proper process, or the voluntary appearance of the party, it is competent for it to try and determine all questions within the issue arising during the course of the trial, and its decisions thereon can be reviewed only on appeal in a direct proceeding having that object in view.

For the reasons stated we think the orders of the General and Special Terms should be reversed, and the record remitted for the purpose of a rehearing upon the issue made by the traverse, with costs of all the courts to abide the result.

All concur.

Judgment accordingly.


text:
    William M. Tebo, Appellant, v. William Robinson, Respondent.
    (Argued June 3, 1885 ;
    decided October 6, 1885.)
    Ability to pay, within the meaning of a promise to pay a debt when able, cannot be fairly implied while the debtor, although in possession of property sufficient to pay the debt, is plainly insolvent, or where payment, if enforced, would strip him of his means of support; nor is it within the contemplation of the parties that the debtor will pay out of earnings necessary for the support of himself or his family, or that he will pay to the prejudice of other creditors whose debts are absolute and unconditional. On the other hand, such a promise does not imply simply an ability to pay without embarrassment, or even without crippling the debtor’s resources or business.
    In an action commenced in November, 1881, upon a written promise made by defendant in October, 1872, to pay $1,000 before that time loaned to him by plaintiff, the moment he was able, the defense was the statute of limitations. It appeared that for some time prior to November, 1875, defendant had a balance to his credit in bank at all times, sometimes more and sometimes less than plaintiff’s claim. Also, that defendant, from prior to 1873, was a member of the New York Stock Exchange, and that his seat, in 1875, was worth $5,000. Whether he owed any other debts than that to plaintiff did not appear. Plaintiff testified to a conversation with defendant in October, 1875, in which the latter stated that he had not seen a time since he borrowed the money when he could pay it, and that plaintiff could rest assured he would do so as soon as he was able. The court nonsuited plaintiff. Held error; that it was a question of fact for the jury as to when defendant became able to pay.

      Tebo v. Bobinson (29 Hun, 243), reversed.
    Appeal from judgment of the G-eneral Term of the Supreme Court, in the second judicial department, entered upon an order made February 13, 1883, which affirmed a judgment in favor of defendant, entered upon an order nonsuiting plaintiff on trial. (Reported below, 29 Hun, 243.)
    This action was brought upon a promise contained in a letter written by defendant to plaintiff in October, 1872; of so much of the letter as is material the following is a copy:
    “You will find inclosed $100, with interest, which you so kindly loaned me one year ago, and I hope and trust I shall shortly be able to inclose you $1,000, which you also kindly loaned me, hoping at the same time you may have no need of it until such time as I shall be able to pay it, and you may rest assured you shall have the money the moment I am able to pay it.”
    The complaint averred ability to pay prior to the commencement of the suit. This was not denied in the answer. The sole defense set up was the statute of limitations.
    The material facts are stated in the opinion.

      Josiah T. Marean for appellant.
    An action brought more than six years after the money was originally loaned must be based upon a new promise, for the action on the original promise is barred. (Shoemaker v. Benedict, 11 N. Y. 183; Bell v. Morrison, 1 Peters, 371; Tompkins v. Brown, 1 Denio, 247; Duprey v. Mount, 3 Wend. 139 ; Scales v. Jacob, 3 Bing. 638 ; Tanner v. Smart, 6 B. & C. 603.) The new promise sued upon being conditional, the plaintiff must allege, and, if it be denied, prove, performance of the condition before suit, since that is an element of his cause of action. (Wakeman v. Sherman, 9 N. Y. 85; (Cocks v. Weeks, 7 Hill, 45 ; Davies v. Smith, 4 Esp. 36; Waters v. Dari of Thanet, 2 G. & Dav. 166.)

      Washington Sackmann for respondent.
    A promise to pay when able is a conditional promise, dependent upon the happening of the condition, which must be proved by the plaintiff before he can recover. ( Cocks v. Weeks, 7 Hill, 45 ; Davies v. Smith, 4 Esp. 36 ; Souton v. Eislord, 7 Johns. 36; Bush v. Barnard, 8 id. 408; Waters v. Dari of Thanet, 2 G. & Dav. 166; Angel on Lim. of Act. 100, §§ 113, 114; Brown on Actions, 78; Wakeman v. Sherman, 9 N. Y. 85.) The statutes not having ran against it, and no. demand having been made upon the defendant, the original cause of action was neither extinguished nor suspended by the letter set forth in plaintiff’s complaint. (Howe v. Woodruff, 21 Wend. 640.) The statute began to run from the hour of the defendant’s ability to pay, regardless of whether the plaintiff knew of that ability or not. ( Waters v. Earl of Thanet, 2 G. & Dav. 166; Angel on Lim. 100, §§ 113, 114; 1 Dan. Neg. Instr. 34; Cocks v. Weeks, 7 Hill, 45; Troup v. Smith, 20 Johns. 32; 12 Week. Dig. 358.) The rule as to the running of the statute is the same as in actions for conversion or tort. (Bunce v. Tilson, 25 N. Y. 194; Troup v. Smith, 20 Johns. 34, 49; Kelsey v. Griswold, 6 Barb. 436 ; Allen v. Miller, 17 Wend. 201.) If the letter set forth in the complaint is adjudged to rise to the dignity of a new and independent contract, then the statute of limitations began to run against the new promise from the hour defendant was able. (Code of Civ. Pro., § 415 ; Brown on Actions, 78; Waters v. Earl of Thanet, 2 G. & Dav. 169; Angel on Lim. 100, §§ 113, 114; Dan. on Neg. Instr. 34; Allen v. Miller, 17 Wend. 201.)
   Andrews, J.

The promise of the defendant contained in the letter of October 19, 1872, was conditional. It was to pay the debt the moment he was able.” The cause of action on this promise accrued as soon as the defendant had the pecuniary ability to pay his debt. Proof that the defendant at a particular time subsequent to October 19,1872, had property equal to, or greater than the amount of the plaintiff’s debt, would not conclusively show that he was able to pay the debt within the meaning of the promise so as to give a right of action. This fact might be consistent with utter insolvency on the part of the defendant, or the property might be of such a character that to deprive him of it would take away his means of livelihood as effectually as depriving a mechanic of his tools would deprive him of means of support. A promise to pay when able is to be reasonably interpreted. On the one hand it does not imply ability to pay without embarrassment, or even without crippling the debtor’s resources or business, while on the other hand ability to pay cannot be fairly implied while the debtor, although he may be in possession of property sufficient to pay the particular debt, is plainly insolvent, or when payment, if enforced, would strip him of his means of support. The creditor, or a promisee of this kind, reposes very much on the good faith of the promisor. He generally . relies upon the debtor’s making known any change in his pecuniary circumstances which enables him to pay the debt, although there is no duty of voluntary disclosure. It is not contemplated by the parties that the debtor will pay the debt out of earnings necessary for the support of himself or his family, or that he will pay the particular debt to the prejudice of other creditors whose debts are absolute and unconditional.

The present action was commenced November IS, 1881. The only defense is the statute of limitations. The trial judge granted a nonsuit on the ground that it was shown that the defendant was able to pay the debt prior to November, 1875, and more than six years before the commencement of the action. We think the court erred, and that this question should have been submitted to the jury. It appeared from the bank account of the defendant that prior to November, 1875, the balance to his credit was sometimes more and sometimes less than the amount of the plaintiff’s claim, and that at all times there was a balance of several hundred dollars in his favor. It was also shown that the defendant was a broker, and that from prior to 1873 he was a member of the Stock Exchange in the city of New York, and that, in 1875, his seat in the Exchange was worth $5,000. There was no proof that he had any other property, and whether he owed any debts other than the debt to the plaintiff was not disclosed. It may be assumed that the case made by the defendant prima facie established the fact of his ability to pay the plaintiff’s debt prior to November, 1875. But the plaintiff testified that in October, 1875, at an interview between himself and the defendant, in which the payment of the debt was alluded to, the defendant said that he had not seen a time since he borrowed the money that he could pay it, that his wife needed a shawl and he was not able to buy her one, and added that the plaintiff could rest assured that he would pay the debt as soon as he was able to. We think it was a question for the jury upon, this evidence whether, up to the time of this conversation, the defendant was able to pay the plaintiff. The bank account and the ownership of the seat in the Stock Exchange was not necessarily inconsistent with an inability to pay the plaintiff’s debt prior to that time. The jury should have been permitted to pass upon the question. No change in the pecuniary circumstances of the defendant was shown to have occurred between the time of this conversation, in October, and the November following, and the jury would have been justified in assuming that no change had taken place. If the ability to pay the plaintiff’s debt did not exist prior to November, 1875, the cause of action was not barred in November, 1881, when the action was commenced.

The judgment should be reversed and a new trial granted.

All concur.

Judgment reversed.


text:
    William Baker et al., Respondents, v. The New York National Exchange Bank, Appellant.
    The relation between a commission agent for the sale of goods and his principal is fiduciary; and, in the absence of an express agreement or one implied by the course of business or dealing between them, giving the former the right to appropriate to his own use the proceeds of sales of his principal’s goods, such proceeds belong to the principal, subject to the lien of the agent for commissions, advances and other charges, and the principal may follow and reclaim them so long as the identity is not lost, subject to the rights of a bona fide purchaser for value.
    Where a firm of commission merchants, which was insolvent, for the purpose of protecting its principals, opened a bank account in the name of the firm, with the word “ agent ” added, the bank having knowledge of such purpose, and deposited to the credit of that account the proceeds of sales of goods of a principal, and upon settlement gave to him a check for the balance belonging to him, held, that the bank had no right to charge against the account an individual debt of the firm, even with its consent.
    Also held, that the right of the principal was not affected by the fact that the agents used the specific proceeds of the'; sales and deposited other moneys to make up the amount so used ; that such deposits, being substituted for the original proceeds, became impressed with the trust, and subject to the same equities.
    Also held, it was immaterial that the proceeds of sales of goods belonging to other principals were deposited in the same account; that, in the absence of proof to the contrary, the presumption was that the fund was adequate to protect all interests, and the check operated as a setting apart of so much to satisfy the claim of the principal to whom it was delivered.
    (Argued June 1, 1885 ;
    decided October 6, 1885.)
    Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made March 20,1883, which affirmed a judgment in favor of plaintiff, entered upon a verdict directed by the trial court.
    This action was brought by plaintiffs, composing the firm of Baker & Wilson, to recover the amount of a check drawn upon defendant by “ C. A. Wilson & Bro., agents.” The .drawers were commission merchants; they became insolvent in October, 1878, and, thereafter, to protect their principals, among whom were plaintiffs, opened a deposit account with defendant in the name of their firm, adding the word “ agent,” to the credit of which account they deposited the proceeds of the sales of their principal’s goods. The check in question was given by said agents on settlement of their accounts with plaintiff. Defendant alleged that at the time the check was drawn there was no balance to the credit of said account, and offered to prove on the trial that prior thereto they were authorized by said agents to charge to the account an individual indebtedness of their firm, which was done, leaving no balance. This was objected to and excluded, and defendant’s counsel duly excepted.
    The further facts appear in the opinion.

      Thomas Allison for appellant.
    Plaintiffs could not recover herein without tracing their money into defendant’s hands. (Ferris v. Van Vechten, 73 N. Y. 113.) The use, for his own benefit, by the consignee, commission merchant, of the proceeds of a sale of consigned goods would not be a conversion of those proceeds, or a breach of trust, in .the absence of an express agreement that he should not so use them. (Walter v. Bennett, 16 N. Y. 250, 253; Greentree v. Rosenstock, 61 id. 583.) The fact of the witness Wilson’s interest in the question at issue required the submission of this case to the jury. (Elwood v. W. U. Tel. Co., 45 N. Y. 549; Kavanagh v. Wilson, 70 id. 179; Gildersleeve v. Landon, 73 id. 609; Koehler v. Adler, 78 id. 287; Honegger v. Wettstein, 94 id. 252; Hodge v. City of Buffalo, 1 Abb. N. C. 356; Sheridan v. Mayor, etc., 8 Hun, 424; Hazen v. Hoboken L. Co., 50 N. Y. 53.)
    E. More for respondents.
    The fund, to the extent of the check, belonged to plaintiffs; it required no assignment, and the plaintiff could sue though the check was not accepted or certified. ( Van Allen v. St. Nicholas Bk., 52 N. Y. 1; Falkland v. Same, 84 id. 145 ; Central Nat. Bk. v. Conn. Mut. L. Ins. Co. U. S. Sup. Ct. [10 Ins. L. J.] 897; Knatchbull v. Hallett, L. R., 13 Ch. Div. 696.) Where an agent puts his own money in with trust funds, and checks out for his own use, such checks are in equity to be charged to his funds only. And if he has checked out as much as he deposited of his own funds, the balance belongs to his principals. (Dows v. Kidder. 84 N. Y. 131.)
   Andrews, J.

The relation between a commission agent for the sale of goods and his principal is fiduciary. The title to the goods until sold remains in the principal, and when sold, the proceeds, whether in the form of money, or notes, or other securities, belong to him, subject to the lien of the commission agent for advances and other charges. The agent holds the goods and the proceeds upon an implied trust to dispose of the goods according to the directions of the principal, and to account for, and pay over to him the proceeds from sales. The relation between the parties in respect to the proceeds of sales is not that of debtor and creditor simply. The money and securities are specifically the property of the principal, and he may follow-and reclaim them, so long as their identity is not lost, subject to the rights of a bona fide purchaser for value. In case of the bankruptcy of the agent, neither the goods nor their proceeds, would pass to his assignees in bankruptcy for general administration, but would be subject to the paramount claim of the principal. (Chesterfield Manufacturing Co. v. Dehon, 5 Pick. .7; Merrill v. Bank of Norfolk, 19 id. 32; Thompson v. Perkins, 3 Mason, 232; Knatchbull v. Hallett, L. R., 13 Ch. Div. 696 ; Duguid v. Edwards, 50 Barb. 290; Story on Ag., § 229.) The relation between a principal and a consignee for sale, is, however, subject to modification by express agreement, or by agreement implied from the course of business or dealing between them. The parties may so deal that the consignee becomes a mere debtor to the consignor 'for the proceeds of sales, having the right to appropriate the specific proceeds to his own use.

In the present case the bank account against which the check was drawn, represented trust moneys belonging to the principals for whom Wilson & Bro. were agents. The deposits to tlie credit of this account were made in the name of the firm, with the word “ agents ” added. They were the proceeds of commission sales. Wilson & Bro. became insolvent in October, 1878, and they opened the account in this form, for the purpose of protecting their principals, which purpose was known to the bank at the time. The check in question was drawn on this account in settlement for a balance due to plaintiffs, upon cash sales made by the drawers as their agents. It is clear upon the facts that the fund represented by the deposit account was a trust fund, and that the bank had no right to charge against it, the individual debt of Wilson & Bro. The bank having notice of the character of the fund, could not appropriate it to the debt of Wilson & Bro., even with their consent to the prejudice of the cestui que trusts. The supposed difficulty in maintaining the action arising out of the fact that the money deposited was not the specific proceeds of the plaintiffs’ goods, is answered by the case of Van Alen v. American Nat. Bank (52 N. Y. 1). Conceding that Wilson & Bro. used the specific proceeds for their own purposes, and their identity was lost, yet when they made up the amounts so used, and deposited them in the trust account, the amounts so deposited were impressed with the trust in favor of the principals, and became substituted for the orignal proceeds and subject to the same equities. The objection that the deposit account represented not only the proceeds of the plaintiffs’ goods but also the proceeds of goods of other persons, and that the other parties interested are not before the court, and-must be brought in in order to have a complete determination of the controversy, is not well taken. The objection for defect of parties was not taken in the answer, and moreover it does not appear that there are any unsettled accounts of Wilson & Bro. with any other person or persons for whom they were agents. The check operated as a setting apart of so much of the deposit account to satisfy the plaintiffs’ claim. It does not appear that the plaintiffs are not equitably entitled to this amount out of the fund, or that there is any conflict of interest between them and any other person or persons for whom Wilson & Bro. "acted as consignees. The presumption in the absence of any contrary indication, is, that the fund was adequate to protect all interests, and that Wilson & Bro. appropriated to the plaintiffs only their just share.

We are of opinion that the judgment was properly directed, and it should therefore be affirmed.

All concur.

Judgment affirmed.


author: Finch, J.

text:
    Jane E. Thompson, Respondent, v. Hiram Whitmarsh, Appellant.
    Where an executor or administrator has sold, on credit, property of the estate, he may bring an action in his own name to recover the debt, and in such an action a debt against the decedent may not be made the subject of a counter-claim.
    The old rule in this respect has not been changed "by the provisions of the Code of Civil Procedure (§ 449), requiring every action to be brought by the real party in interest, and (§ 1814) that an action commenced by an executor.or administrator upon a cause of action belonging to Mm as such must be brought by him in his representative capacity. The debt does not belong to him in his representative capacity, within the meaning of the Code, and he, as an individual, is the real party in interest.
    (Argued June 8, 1885 ;
    decided October 6, 1885.)
    Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made January 23, 1883, which affirmed a judgment in favor of plaintiff, entered upon the report of a referee.
    This action was brought to recover the purchase-price of a certain personal property, which came into the hands of plaintiff as executrix of Charles Thompson, who died insolvent. Defendant set up as a counter-claim a promissory note, executed by the decedent to him. This was not allowed by the referee.

      A. P. Smith for appellant.
    This action cannot be maintained by plaintiff in her individual name. (Code of Civ. Pro., §§449, 506, 1814; Wetmore v. Porter, 92 N. Y. 76 ; Bradner v. Faulkner, 34 id. 347 ; Pugsley v. Aikin, 11 id. 494 ; Dayton on Suit. 232, 237; 3 R. S. 89, pt. 2, chap. 6, tit. 3, art. 1, § 6; Parsons v. Lyman, 20 17. Y. 103; Stone v. Scripture, 4 Lans. 186; Chapman v. Fish, 6 Hill, 554.) If this action had been brought by Jane E. Thompson as the executrix of Charles Thompson, deceased, the claim against the estate could be set off against her claim. (Code of Civ. Pro., § 506.) A contract void by the statute of frauds, if fully performed, as this was, cannot be repudiated because not in writing and therefore void. ( Van Valkenburg v. Croffat, 15 Hun, 147; Bowen v. Bell, 20 Johns. 338 ; Tyler v. Church, 54 N. Y. 632.) In a case like this the executrix holds the estate, both real and personal, as executrix, and not in her individual capacity. (3 R. S. 74 [6th ed.], § 33; Forbes v. Halsey, 26 N. Y. 60 ; Jenkins v. Fryer, 4 Paige, 47.) If the account had been simply made out in the form it was, and left with the plaintiff for three years and three months and there had been no agreement upon the subject within all the authorities it would have become an account stated and binding upon the parties, and could not be opened except on an allegation and proof of fraud or mistake. (Towsley v. Denison, 45 Barb. 490; Avery v. Leach, 9 Hun, 106 ; Phillips v. Belden, 2 Edw. Ch. 1; Murray v. Tolland, 3 Johns. Ch. 569 ; Augsbury v. Flower, 68 N. Y. 619; Lockwood v. Thorne, 11 id. 170; Case v. Hotchkiss, 1 Abb. Ct. of App. Dec. 324; Barker v. Hoff, 52 How. 382; Hurley v. Bank, 7 Daly, 476.) The referee having found that there was no account stated when the undisputed evidence shows there was, and to which finding there was an exception taken, it is an error of law, calling for a reversal of the judgment. (Mason v. Lord, 40 N. Y. 434; Sheldon v. Sheldon, 51 id. 554 ; Draper v. Townsend, 38 id. 219; Fellows v. Northrup, 39 id. 117.)

      Franklin Pierce for respondent.
    In order to establish a settlement of the claims presented by the appellant upon the occasion when respondent and appellant looked over the accounts, it must appear that the parties met upon each item ; that the respondent assented to the correctness of each separate claim of the appellant against her husband’s estate; that the account was final; that respondent assented to the correctness of and agreed to pay the balance struck. (Lockwood v. Thorne, 18 N. Y. 288; Stenton v. Jerome, 54 id. 480-4; Champion v. Joslyn, 44 id. 653 ; Volkening v. De Groof, 81 id. 268; Stryker v. Cassidy, 76 id. 54 ; Harvey v. W. El. R. R. Co., 13 Hun, 392 ; Schneider v. Bank, 30 How. Pr. 190 ; Hutchinson v. Bank, 48 Barb. 303; White v. Campbell, 25 Mich. 463; Reinhart v. Hines, 5 Miss. 344 ; Wiggins v. Burnham, 10 Wall. 129.) Plaintiff was not obliged to sue in her official capacity. (Chatfield v. Simomon, 62 N. Y. 217 ; Code, § 1814; Merritt v. Seaman, 6 M. Y. 168; Bright v. Carrie, 5 Sandf. 433; Stillwell v. Carpenter, 2 Abb. N. C. 241; Bliss on Code Plead., § 53; 2 Wms. on Ex. [6th Am. ed.] 877; Stewart v. Richey, 2 Harr. [N. J.] 164; Packer v. Wilson, 4 Hilt. 57; Manuel v. Briggs, 17 Vt. 176 ; Kline v. Guthard, 2 Penn. 491; Carter v. Ester, 11 Rich. [S. C.] 363; Lolliday v. Bissey, 2 Jones, 350; McKnight v. Morgan, 2 Barb. 171; 1 Pom. Rem. and Remed. Rights, § 181.) In eases like this the privity of contract is uot between the purchaser and the estate of the intestate, but is between the purchaser and the executor, who, from the very nature of the contract, must bring the action in his own name. (3 Wait’s Act. and Def. 235, 238; Ferrin v. Myrick, 41 N. Y. 319; Hall v. Richardson, 89 id. 636; Wetmore v. Porter, 92 id. 82; Holbrook v. White, 13 Wend. 591; Murray v. Church, 1 Hun, 49 ; Nichols v. Smith, 7 id. 580; Sheldon v. Hay, 11 How. Pr. 11; Saycock v. Olison, 60 111. 30; Evans v. Gordon, 8 Port. [Ala.] 346; Oglesby v. Gilmore, 5 Ga. 56; Gunn v. Hodge, 32 Miss. 319 ; Catlin v. Underwood, 4 McLean, 337; Biddle v. Wilkins, 1 Peters [U. S.], 693; Talmadge v. Chapel, 16 Mass. 71; Lawrence v. Carter, 16 Pick. 17; Beecher v. Buckingham, 16 Conn. 120; Shellman v. Crilhusen, 15 Ind. 441; Ritenhouse v. Ammerwan, 64 Mo. 200; Perry on Trusts, §§ 809, 810.) The same principles control the acts of other representatives, such as receivers, assignees of insolvent debtors and highway commissioners. ( White v. Joy, 13 N. Y. 87; People v. Supervisors, 93 id. 397; Bishop on Insol. Debt. 319, § 340 ; Burr, on Assign., § 403.) It would have' been absolute error for respondent’s attorney to have allowed the respondent, as executor of her husband, to have brought this action ; and had the respondent been defeated in such an action she would have been personally liable for the costs. (Bedell v. Barnes, 29 Hun, 589 ; Feig v. Wray, 3 Civ. Pro. R. [Browne] 159; 64 How. Pr. 391; Barlow v. Myers, 24 Hun, 290 ; Powell v. Powell, 10 Ala. 900 ; Clark v. Tufts, 5 Pick. 340 ; Howard v. Hinerschit, 16 Hun, 170; Jordan v. Nat. S. and. L. Bk., 74 N. Y. 475.) The legislature did not intend to drive executors into bringing actions upon their own contracts in a representative capacity, and then allowing defendants to counter-claim their demands against the testator. Such an interpretation of the law breaks in upon and destroys the whole theory of pro rata distribution of estates among creditors. (Patterson v. Patterson, 59 N. Y. 577; Jordan v. Nat. S. and L. Bk., 74 id. 467.)
   Finch, J.

It is not denied in this case that, irrespective of sections. 449 and 1814 of the Code, and before its enactment, an executor or administrator, seeking to enforce a contract made by himself and not by the decedent, could sue in his own name ; and that in such action a demand against the decedent belonging to the defendant could not be used as a counter-claim to diminish or extinguish the recovery. It is insisted, however, that the effect of these sections.is to change the law, and compel the executor or administrator to sue in his representative capacity where his recovery will be assets, and is for the benefit of the estate. Under "section 449 every action must be brought by the real party in interest, and where the recovery is wholly for the benefit of the estate, it is said such real party in interest is the executor or administrator, and not the individual who happens to be charged with the trust duties. And this contention is claimed to be strengthened by the language of section 1814, that an action or special proceeding, hereafter commenced by an executor or administrator, upon a cause of action belonging to him in his representative capacity * * * must be brought by * * * him in his representative capacity.” Here the plaintiff is executrix, and sold upon credit, property of the estate to the defendant, who holds an unpaid note of the decedent. The estate is insolvent, and if the defendant can use his demand as a counterclaim, he alone of all the creditors can secure a preference out of the assets, and be paid in full at the expense of others equally entitled to payment. The result would overturn the whole system of distribution to creditors, and compel executors and administrators never to sell on- credit at public auction where creditors of the deceased could buy, or in some unexplained way exclude them from the list of purchasers. Ho such construction of the Code is permissible. Where an executor or administrator sells on credit the property of the estate, and sues to recover the debt, he, as an individual, is the real party in interest, for the contract is made with him, and the promise to pay runs to him, and he is personally accountable for the assets which he has sold. For the same reason the debt does not belong to him in his representative capacity within the intent and meaning of the section of the Code referred to. That phrase relates to debts which belonged to the testator or intestate, and came to the executor or administrator through his representation of the deceased rather than as the result of his own action. The effect of the section, and the change produced by it, is upon the class of cases in which the action could have been maintained in either form; as where, upon a contract made with the testator, the cause of action accrued after his death; or where, upon a debt or obligation due to the deceased, the executor or administrator has taken a new security or evidence of debt. In these cases, before the Code, the action might be in the individual or representative ñamé, but now must be in the latter. Upon neiv contracts made by the executor or administrator, and never existing in favor of the decedent, but growing out of the contracts and dealing of the former alone, the action is properly brought in the name of the individual, and a debt against the decedent cannot be made the subject of a counter-claim. It must be paid in the ordinary course of administration, and can gain no preference, as it is entitled to none.

This particular ground of objection appears not to have been taken at the General Term, and so was not considered in the opinion there rendered, which sufficiently answered the other grounds urged in support of the appeal.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.