author: O’ Brien, J.:

text:
    Sells E. Woodhull, Respondent, v. The Mayor, Aldermen and Commonalty of the City of New York and The City of Brooklyn, Appellants.

      Municipal corporation — liability of, for the tortious acts of its police officers — not liable for negligence or want of skill — respondeat superior — trustees of Brooklyn bridge — power to designate peace officers — liability for their negligence.

    The police officers of a municipal corporation are not to be deemed its servants or agents in such a sense as to render it responsible for the damages occasioned to third persons by a failure on their part to duly and properly discharge the duties imposed upon them.
    The rule of respondeat superior is based upon the rights which an employer has to select his servants and discharge them if not competent or skillful or well behaved, and to direct and control them while in his employ.
    "Where, by legislative enactment, a municipal corporation is required to elect or appoint an officer to perform a public duty laid, not upon it, but upon the officer, in which it has no private interest and from which it derives no special benefit or advantage, such officer is not a servant or agent of the municipality, and for his negligence or want of skill in the performance of his duty, or for that of a servant whom he employs, it is not liable.
    Pursuant to section 8 of chapter 300 of the Laws of 1873, the trustees of the Brooklyn bridge, acting on behalf of the municipalities of New York and Brooklyn, have an undoubted right to select persons as peace officers, upon whom is conferred the same authority as is enjoyed by policemen in either city; such persons, however, as they also act as guards or trainmen, and as their pay and employment are regulated by the bridge trustees, and as the municipalities receive remuneration from persons using the bridge, are in no sense agents or servants, of the State, and are the agents and servants of such municipalities, for whose negligence and wrongful acts such municipalities are liable upon the doctrine of respondeat superior.

    Appeals by the defendants, The Mayor, Aldermen and Commonalty of tlie City of New York and The City of Brooklyn, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of December, 1892, upon the verdict of a jury for $1,000, reduced by an order of the court to $1,500 after a trial at the New York Circuit, and also from an order entered in said clerk’s office on the 6th day of January, 1893, denying the defendants’ motion to set aside the verdict and for a new trial made upon the minutes.

      Theodora Oonnoly, for the appellants.

      Paul E. Da Fero, for the respondent.
   O’ Brien, J.:

It is conceded that at the time of the acts complained of the defendants owned and operated a railway across the New York and Brooklyn bridge, and were engaged in carrying passengers for hire on said railway. The action was for damages for the illegal arrest and false imprisonment of plaintiff under circumstances which may be briefly narrated.

On May 19, 1890, after plaintiff had paid his fare to be carried by the railway from the city of Brooklyn to the city of New York,, and while in the act of entering one of the cars, a person, who was. performing the ordinary duties of a guard, in closing the door of the car, shut it against and upon the leg of plaintiff; and as the result of the remonstrance by plaintiff against such treatment, he claims that he was, without warrant or cause, imprisoned and detained in the car and forcibly prevented from leaving it upon its arrival in the city of New York, and was brought back to Brooklyn and taken before one of the chief employees of the defendants about the bridge, charged with assault and battery, and thereafter taken through the public streets of the city of Brooklyn to a police justice, and was there again charged with the assault and battery, and was detained and imprisoned in the prisoners’ room or pen .attached to the court room of the police justice and in the county jail of Kings county for several hours. Having given 'bail, he was .some days afterwards tried and acquitted.

The defense of reasonable cause, upon conflicting evidence, was presented to the jury, and they reached the conclusion that, the plaintiff was not guilty of assaulting the person who closed the door of the car upon his leg, and that his arrest was unjustifiable.

The answer, while admitting the allegations of arrest and detention, alleged that one of the police officers 'employed to patrol the bridge and to preserve order thereon, being a peace officer, did arrest the plaintiff for an assault and battery alleged to have heen committed in his presence, and it denies that said arrest was made in the discharge of any duty owing hy the officer to the defendants, and that it was made in the discharge of the officer’s duty as a peace officer of the State of New York.

It is not our purpose to review the authorities which fully sustain the appellants’ position, that if the person here causing the arrest was a peace officer of the State, the defendants would not he responsible for his tortious acts. We need but refer to the leading case of McKay v. The City of Buffalo (9 Hun, 401 ; affd. without opinion in 74 N. Y. 619), which is authority for the proposition that the police officers of a municipal corporation are not to he deemed its servants or . agents in such a sense as to render it responsible for the damages occasioned hy third persons by a failure on their part to duly and properly discharge the duties imposed upon them; and in the course of the opinion it is said: Where it is sought to make a municipal corporation liable for the acts of its servants or agents, the cardinal inquiry is whether they are servants or agents of the corporation. If the corporation appoints or elects them, and can control them in the discharge of their duties, and continue or remove them, can hold them responsible for the manner in which they discharge their trust, aiid if those duties relate to the exercise of corporate powers, and are for the peculiar benefit of the corporation and jts local and special interest, they may justly be regarded as its servants, or agents, and the maxim of respondeat ■superior applies. But if, on tlie other hand, they are elected or ■appointed by the corporation in obedience to the statute to perform •a public service, not peculiarly local or corporate, but because this mode of selection has been deemed expedient by the Legislature in the distribution of the powers of government, if they are independent of the corporation as to the tenure of their office and the manner of discharging their duties, they are not to be regarded as the servants or agents of the corporation for whose acts or negligence it is impliedly liable, but as public or State officers, with such powers and duties as the statute confers upon them, and the doctrine of respondeat superior is not applicable. This is the doctrine laid down by Mr. Dillon. (Dillon on Mun. Corp. § 772.) In the next section of his work (§ 773) he says: Agreeably to the principles just mentioned, police officers appointed by a city are not its ■agents or servants so as to render it responsible for their unlawful •or negligent acts in the discharge of their duties.’ ” (See also 2 Dillon on Mun. Coi^. [4th ed.] § 974.)

The law being thus settled, it would follow that, if the appellants’ contention wrere correct, i. e., that the person causing the ■arrest was in a strict sense a policeman, and as such an agent of the State, then no liability for his acts would fall upon the defendants. Whether a person possessed of the ordinary powers of a police or peace officer is the agent or servant of the State or of an individual or corporation, be it private or municipal, is not always easy to determine.

Without discussing cases relating to individuals or private corporations, wre have for our guidance, as applicable to municipal corporations, a rule presented in the well-considered case of Maximilian v. The Mayor (62 N. Y. 163), which w^as a case in principle like this, wherein the liability is to be determined by the application of the rule of respondeat superior. As therein said: “ This rule of respondeat superior is based upon the right which the employer has to select his servants, to discharge them if not competent or ■skillful or well behaved, and to direct and control them while in his employ.” And in speaking with respect to municipal corporations of the test to be applied, the opinion continues: “ There are two kinds of duties which are imposed upon a municipal corporation; one is of that kind wliieb arises from the grant of a special power, in the exercise of which the municipality is as a legal individual; the other is of that kind which arises, or is implied, from the use of political rights under the general law, in the exercise of which it is as a sovereign. The former power is private and is used for private purposes; the latter is public and is used for public purposes.” And as correctly stated in the head note, it was therein decided that, Where by legislative enactment a municipal corporation is required to elect or appoint an officer to perform a public duty laid, not upon it, but upon the officer, in which it has no private interest and from which it derives no special benefit or advantage, such officer is not a servant or agent of the municipality, and for his negligence or want of skill in the performance of his duty, or for that of a servant whom he employs, it is not liable.

With these principles to guide us, it remains to ,be determined upon the facts of this case whether or not the defendants were liable for what the jury has found to be their wrongful act in causing the plaintiff’s ai’rest and imprisonment. It was shown on the part of the plaintiff that as he reached the train platform and proceeded to enter one of the cars by its side center door, he saw there a person in uniform,. Bishop by name, stationed at the door and acting as a trainman or guard, performing the usual duties of a trainman or guard, assisting passengers in and out; that he had been frequently seen acting in the same capacity and performing the same duties. Upon his own examination, Bishop stated that in standing at the door and shutting it, he did so because the gong had struck, “ and my orders were to shut the door when the gong struck.” He further testified, however, that he had been a -bridge policeman on the New York and Brooklyn bridge for nearly ten years, and that he was appointed a policeman by the trustees of the bridge. But with respect to his duties, in addition to what he had stated above as to obeying orders and shutting the door when the gong struck, he testified that his duties were to shut the door instantly upon the gong striking. It was further made to appear that the bridge trustees, representing the defendants, appointed two distinct classes of employees, whose dress was different, viz., guards and conductors wearing a cap with a peak on the top, and policemen who wear a helmet; that the former were appointed under section 7 of the act of 1875, and tlie policemen under section 8 of the same act, -which provides, among other things, that “ policemen so appointed shall have and possess all the powers of policemen of the cities of New York and Brooklyn.”

Although pursuant to the act the bridge trustees, acting on behalf of the two municipalities, have, an undoubted right to select persons as peace officers, upon whom is conferred the same authority as policemen in either city, the question still remains whether they are servants or agents of the State, or the servants or agents of the municipalities.

When we remember that the bridge, though in one sense a public structure, has been.erected as a private enterprise by the municipalities, which maintain thereon a railway for the carriage of passengers for hire, and that for such accommodations of carriage as they afford to persons or vehicles they are remunerated; and that each municipality has a direct and special benefit from the performance of such work; and that the structure itself is a local enterprise, in no way connected with the exercise of any political power granted by the State, or which it enjoys or exercises in common with other political divisions of the State, we do not think that it can be held that the persons selected by the municipalities as guards or trainmen, and who are engaged in discharging the duties devolving upon those who control the structure, whether they are called guards, trainmen or policemen, are in any sense the agents or servants of the State. When to these considerations are added the facts that the persons called bridge policemen, in addition to the power which they posséssof preserving the peace, are engaged in discharging the ordinary-duties devolving upon a trainman -or guard, under orders, and that, it appears that their selection, appointment, pay, removal, and their entire conduct in the discharge of their duties, are directly controlled and regulated by the trustees whom the municipalities have selected to manage on their behalf the affairs of the bridge, then we do not think there can be much hesitation when, in applying the rules, we reach the conclusion upon the facts here appearing, that tlie attendants on the bridge, by whatever name known, are the agents and servants of such municipalities, for whose negligence and wrongful acts they are liable upon the doctrine of respondeat superior.

In the ease of Walsh v. The Mayor (107 N. Y. 220), in the course ■of the opinion (p. 224), it is said: The bridge was to be completed and managed on behalf of the two cities jointly. * * * The trustees of the bridge were to be appointed by the city officials of the two cities. All the real estate purchased by the trustees was to belong to the two cities jointly, and the bridge and all its appurtenances, and •all the property connected with it, was to belong absolutely to the two cities, in shares to each of the cities equal to the amount paid by them for the construction of the bridge and for the land and appurtenances thereof. All the revenues of the bridge were to belong to the two cities and were to be used for the payment of the indebtedness created by the cities for its construction. As the bridge is the property of the two cities, any revenue derived therefrom, after the payment of debts created for the construction thereof, would go into the treasuries of the two cities. So in every sense and in every view, the bridge Avas constructed and is managed for the two cities, ■and the trustees appointed by the city officials representing the two cities as their agents. Hence, they and the persons employed by them are the agents and servants of the cities, for Avhose careless and negligent acts they are liable.”

This case would be a direct authority were it not for the distinction sought to be made from the circumstance that the person responsible for the arrest Avas appointed under the designation of a policeman, and possessed the ordinary powers of a policeman. This fact, it is insisted, is controlling as exempting the defendants from liability. We think it would be giving unusual force to the fact that the person committing the aots, because possessed of the powers of a peace officer, Avas thus created a State officer, although engaged in discharging a duty which devolved upon the defendants as common carriers of passengers in and about their ears.

The selection of the employees, pursuant to the authority of the Legislature, not for a public purpose, but for their private benefit and ■emolument, seems to place the cities with respect to their liability for the acts of those whom they select in the category of private corporations. When we consider, therefore, -the relation which existed between the plaintiff and the defendants as common carriers for hire, and the obligations imposed upon them as such, which are clearly set forth in the case of Dwinelle v. N. Y. C. & H. R. R. R. Co. (120 N. Y. 122), we think it follows that a failure to discharge the obligations thus imposed upon defendants as common carriers, due to the negligent or unlawful acts of those whom the cities had selected to discharge such duties, creates a liability which cannot be evaded by their either calling such servants policemen or conferring upon them the powers which are ordinarily possessed by police officers, because if liability could thus be evaded all that would be necessary for the trustees to do would be to designate all their servants as, and confer upon them the powers of, peace officers, and no matter how negligent or wrongful might be the conduct of such persons while acting within the scope of their employment, and in discharging the duties which devolve upon the cities as common carriers, those who might suffer from their failure to dischai-ge the-, obligations resting upon the cities as common carriers of passengers, would be remediless. .

There is nothing, therefore, in the point made by appellants that the employee who primarily committed the wrong was a policeman, because he was, nevertheless, an employee and -engaged in the discharge of his duties. Under section 58, chapter 565 of the Laws of 18!t0 (General Railroad Law), conductors and brakemen on steam railroads may be appointed policemen, and in practice often are,, which statutory provision has been long a part of the law of this. State. (Chap. 346, Laws 1863;' chap. 223, Laws 1880.) In one. sense every citizen is a policeman, having power to arrest any person who commits a crime in his presence, or any person who has committed a felony, though not in his presence. (§ 183, Code. Crim. Proc.) We do not think that it could be seriously argued that a railroad could escape liability for an unjustifiable arrest made by a conductor-policeman while engaged in his duties as a conductor. As well might the railroad say that he made the arrest as a citizen (if he did not happen to be a policeman), and that, therefore, it was not liable for his acts.

This disposes of the most serious question in the case.

We have been referred to some exceptions taken to rulings excluding questions directed towards showing why the arrest was made, and upon what ground, and as to how the assault occurred, but this subject having been fully gone into, and it being simply an exercise of discretion of the trial judge in limiting such cross-examination,. we do not think that such a line of inquiry, because stopped by the trial judge, would justify a reversal of the judgment.

So with respect to questions calling for the conclusion of the witness Bishop requiring him to state by what authority he placed the plaintiff under arrest. The form of such questions as calling for a conclusion was objectionable; but, apart from this, it will be seen that we have discussed the question upon the theory that it was established by a fair preponderance of evidence that Bishop was known and appointed as a bridge policeman; and, as will appear from the quotations already made, we have commented upon what his duties were, so that the defendants are in no way prejudiced by the exclusion of such questions, because we have, from the testimony, assumed the most favorable view that could be claimed by the appellants.

Other minor exceptions have been called to our attention, but we do not regard them as meritorious or requiring comment.

Upon the question of damages, though reduced by the trial judge, the amount is perhaps a trifle high, but not so excessive as to require us either to further reduce it or to set aside the verdict and grant a new trial upon this ground.

Upon an examination of the entire record, and in view of the disposition made by requiring a reduction of the original verdict by the trial judge, we think that the judgment as entered does substantial justice and should not be reversed.

Our conclusion, therefore, is that the judgment and order should be affirmed, with costs.

YaN BeuNT, P. J., and Follett, J., concurred.

Judgment and order affirmed, with costs.


source: Caselaw Access Project

author: O’Brien, J.:

license: Public Domain

text:
    In the Matter of the Transfer Tax upon the Estate of Ella S. Hoffman, Deceased.

      Inheritance tax — interests taxable under chapter 899 of 1892 — appraisement, when to be deferred — exemption ■ — • costs to the (Comptroller discretionary.

    It is the intent of chapter 399 of the Laws of 1892 to fix a tax, not upon the property of a testator, hut upon the property which is transferred to individual legatees, and it is the property which is transferred to individuals, and not that which passes from the testator, which is subject to tax.
    ■Where a will creates future estates to take effect in the alternative, the right in possession to the remainder being contingent, it is impossible to designate the . person liable to pay the tax imposed by chapter 399 of the Laws of 1892, and no appraisal of the contingent interest should be made thereunder; nor should any tax be imposed thereon until such interest becomes vested in possession, and until, by a removal of the contingency, the rate of taxation and the beneficiary can be determined.
    The allowance of costs to the Comptroller in proceedings taken pursuant to chapter 399 of the Laws of 1892 is a matter resting in the sound discretion of the surrogate, and his decision should not be disturbed by an appellate court except for sufficient cause shown.
    A trust estate of $50,000 was created by a will wherein the mother of the testatrix had a life interest, which was, by an appraiser appointed pursuant to chapter 399 of the Laws of 1892, appraised at $9,385; the interest of another life tenant therein, which was dependent upon her surviving the mother of the testatrix, was appraised at $25,428, and the interest of the remainderman was appraised at $15,187.

      Held, that the life estate to the mother of the testatrix was not subject to tax, and that the tax on the other life estate and the remainder was improper at this time.
    Appeal by Charles H. Yan Rrunt and others, as executors, etc., of Ella S. Hoffman, deceased, and another, from a decree of tbe Surrogate’s Court of New York county, entered in the office of the clerk of the New York County Surrogate’s Court on the 17th day of November, 1893, affirming an order or decree entered in said clerk’s office on the 8th day of July, 1893; assessing a tax on the estate of Ella S. Hoffman, deceased, under chapter 399 of the Laws of 1892.

      Adrian JET. Jolvne, for the executors, appellants.

      Charles H. Daniels, for Olga Sandford, appellant.

      Thomas F. Gilroy, Jr., for Comptroller, respondent.
   O’Brien, J.:

Ella S. Hoffman died November 7, 1892, leaving a last will and testament, wliicb was admitted to probate on the 9th day of December, 1892. As the assessment and tax with respect to-the residuary estate is not in question here, and the only questions which arise are those presented by the fourth clause of the will, that only need be quoted. That clause provides as follows:

'“Fourth. I give, devise and bequeath to my executors and trustees, hereinafter named, and to the survivors and survivor of them, and to their successors and successor, the sum of fifty thousand dollars ($50,000.00), to have and to hold the same as long as my mother, Lucinda R. Starkweather, and my daughter, Ella H. Sand-ford, or either of them, shall live, upon the following trusts, viz.:

“ To invest the same, and to keep the samp invested, in bonds or stocks of the government of the United States, or of the State or city and county of New York; or in bonds secured by mortgage upon improved real estate; or in the mortgage bonds of railroad companies in good standing and repute; hereby giving my executors and trustees, or a majority of them, who shall be acting as such, and their successor or successors, full authority to change any investments so made whenever, in liis or their opinion, it shall be for the interest of the trust hereby created.

“ To collect the rents, income and profits arising from said fifty thousand dollars, directed to be invested as aforesaid, as long as my said mother and daughter, or either of them, shall live.

“ To pay over to my mother’, Lucinda R. Starkweather, as long as she shall live, the net income arising from said fifty thousand dollars, hereinbefore directed to be invested, in as nearly as may be equal quarterly payments.

“ In case of the death of my said mother during the lifetime of my said daughter, Ella IT. Sandford, I hereby direct that, from and after the death of my said mother, the net income arising from said fifty thousand dollars, hereinbefore directed to be invested, be paid to my said daughter as long as she shall live, and, upon her death, I direct that said fifty thousand dollars be paid to her issue, if any shall then be living ; but if she shall die without leaving any issue her surviving, she having survived my said mother, then, upon her death without issue her surviving, I direct that one-half of - said fifty thousand dollars be paid over to my niece, Miss Alice Reid, daughter of George W. Reid, or to her personal representatives, if she be then dead, and the remaining one-half thereof to my niece, Mrs. Cora Marsh, wife of Joseph Marsh, or to her legal representatives, if she then be dead.

case my said daughter shall not be living at the death of my said mother, upon the death of my said mother I direct that said fifty thousand dollars be paid over to the issue of my said daughter, if any such issue shall then be living; but if, at the death of my said mother, my said daughter shall be dead, and no issue of my said daughter shall then be living, I direct that one-half of sgid fifty thousand dollars be paid over to my said niece, Miss Alice Reid, or to her legal representative if she then be dead, and the remaining one-half thereof be paid over to my said niece, Mrs. Cora Marsh, or to her legal representatives if she be then dead.”

The appraiser reported, and the order declared, that the cash value of the property transferred by the will, and subject to the payment of the tax, was as follows:

1. Income for life of $50,000 to Mrs. Starkweather... $9,385 00

2. Income of $50,000 after Mrs. Starkweather’s death, and for balance of life of Ella II. Sandford.... 25, 428 00

3.- Remainder interest in $50,000 after death of two life tenants, to issue of Ella.................. 15,181 00

for life in residuary estate to Ella........ 310, 383 00

5. Remainder interest in residue to grandchildren sur- . viving, or in default thereof to nieces......... 140, 329 92

The taxes assessed and declared to be presently payable, were as follows:

Beneficiary. Tax assessed.

Lucinda R. Starkweather......................... $93 85

Ella H. Sandford ($50,000 bequest)................ 254 28

Ella H. Sandford (residuary)..................... 3,103 83

151 87

The appellants do not dispute the valuation of the securities; the appeal relates only to the assessment and tax upon the various interests in the fund of $50,000, and the income thereof.

The appellants insist :

1. That the fair market value of the legacy of income to Mrs. Starkweather, being less than $10,000, it is exempt from the transfer tax.

2. That the legacy of the income to Ella II. Sandford, after the death of Mrs. Starkweather, has no ascertainable fair market value,” because it is wholly contingent upon Ella surviving Mrs. Starkweather.

3. That the contingent remainder to Olga Sandford, only child of Ella II. Sandford, is not at present taxable.

4. That it was error to allow costs to the Comptroller.

'With regard to the first of these contentious, it is conceded that the property passing to the mother of the testatrix is personal property of the value of less than $10,000.

By section 2, chapter 399 of the Laws of 1892, it is provided that, “ when the property or any beneficial interest therein passes by any such transfer to or for the use of any * * * mother * * * of the decedent, grantor, donor or vendor, * * * such transfer of property shall not be taxable under this act, unless it is personal property of the value of ten thousand dollars or more, in which case it shall be taxable under this act at the rate of one per centum upon the clear market value of such property.”

Section 11 provides that “the surrogate shall * * * as often as and whenever occasion may require, appoint a competent person as appraiser to fix the fair market value at the time of the transfer thereof, of property of persons whose estates shall be subject to the payment of any tax imposed by this act.”

Section 22 provides that the words estate ’ and £ property,’ as used in this act, shall be taken to mean the property or interest therein of the testator, intestate, grantor, bai’gainor or vendor passing or transferred to those not herein specifically exempted from the provisions of this act, and not as the property or interest therein passing or transferred to individual legatees, devisees, heirs, next of kin, grantees, donees or vendees.”

It is from the definition of the words “ estate ” and property,” as used in section 22, that the surrogate’ reached the conclusion that if the property of the testator which passed to the individual legatees exceeded $10,000, then it could be taxed, notwithstanding that less than that amount might have gone to an individual legatee who, under the express provisions of the act, was exempt.

We think that in this the learned surrogate fell into error by not keeping in mind that it was the intent and spirit of the act to fix a tax, not upon the property of the testator, but upon the property that was transferred to individual legatees, and also in failing to note that the statute was intended to create an exemption from taxation in favor of those who stood in such a relation to the testator that they -were the natural objects of his bounty and entitled to receive out of his estate, free from taxation, any sum that he might see'fit to bequeath to them, provided such amount should not exceed 810,000. It will also be noted that the language of the act favors the construction that it is not the property that passes from the testator, but the property that is transferred to an individual, which is taxed. This distinction is pointed out in The Matter of Howe (112 N. Y. 100), wherein the court said : “ The tax is not imposed upon the estate of which she was seized or possessed, but only upon so much of it as passes to certain persons, not all persons or any person. * * * There are many other- provisions of the act, * * * all tending to show that * * * it is simply the estate or shares of the beneficiary acquired through the will * * * which is to be valued, and the duty estimated according to its value.”

With regard to the second and third questions, a reference to the fourth clause of the will will show that it creates two future estates to take effect in the alternative, and the right in possession to the remainder being contingent, it is impossible to designate the person liable to pay the tax. We can see no distinction between the facts here appearing and those in the case of Curtis, decided by this court in December, 1893 (73 Hun, 185; 25 N. Y. Supp. 909), where it was held that no appraisement of the contingent interest should be attempted to be made, or any tax imposed thereon, until such interest became vested in possession and, by a removal of the contingency, the rate of taxation and beneficiary could be determined.

As to the contention that the allowance of costs to the Comptroller on the appeal to the surrogate was improper, we think that all that is necessary to be said is, that it was a matter resting in the sound discretion of the surrogate, which should not be disturbed except for sufficient cause, which is not present in the record before us.

Our conclusion, therefore, is that as to the legacy to the mother, being under $10,000, it is exempt under section 2, chapter 399 of the Laws of 1892 ; that the legacies to Ella H. Sandford and Olga Sandford were improperly taxed; and that in these respects the order or decree of the surrogate should be reversed and in all other respects affirmed, with costs to appellants.

Follett, J., concurred.

Decree modified as directed in opinion, and as modified, affirmed, with costs to the appellants.


author: Van Brunt, P. J.: O’Brien, J.:

text:
    John Duryea, Respondent, v. Catherine Fuechsel and Another, as Executors, etc., of George E. Fuechsel, Appellants.

      Order modifying a judgment — when the judgment must he first moated.

    A judgment dismissing the plaintiff’s complaint was rendered in an action in ’ which it was found by a referee, before whom the action was tried, as matter of fact, that there were no profits arising from a certain enterprise, and as a conclusion of law that the plaintiff had established no cause of action against the defendant, and that the defendant was entitled to judgment against the plaintiff, dismissing the complaint with costs. Thereafter an order was made modifying such judgment by adding thereto a provision appointing a referee, before whom the defendants should account for certain goods sold and the profits realized therefrom, who was authorized to take an account between the parties.

      Held, that such order was improperly granted;
    That until the judgment dismissing the complaint was vacated no other or different judgment could be rendered as against the defendants.
    Appeal by the defendants, Catherine Fuechsel and another, as executors, etc., of George E. Fuechsel, from a judgment of tlie Supreme Court, entered in the office of the cleric of the county of New York on tlie 14th day of November, 1893, upon the report of a referee, with notice of an intention to bring up for review on such appeal an order made at the New York Special Term and entered in said clerk’s office on the 10th day of April, 1891, modifying the judgment entered in said clerk’s office on the 3d day of March, 1890, and appointing a referee, and also,an order made at the New York Special Term and entered in said clerk’s office on the 13tli day of November, 1893, overruling tbe defendants’ exceptions and directing judgment in favor of the plaintiff.

      F. B. Candler, for the appellants.

      A. A. Gan'dner, for the respondent.
   Van Brunt, P. J.:

This action was begun to recover for the sale and delivery of certain merchandise alleged to have been delivered by the plaintiff to the defendants’ testator, at an agreed price, and which merchandise the defendants’ testator agreed to manufacture and pay to the plaintiff one-half of the net profits of the sale thereof; and judgment was prayed for the amount claimed as the purchase price and for an accounting as to the profits upon the sale thereof. After a trial the court found a contract between the plaintiff and the defendants’ testator by which the plaintiff agreed to pui’chase certain carloads of cauliflower and ship them to the defendant, which the defendant was to manufacture, and sell after such manufacture, in the market; and that the defendant was to reimburse himself for any expenses which he might have incurred, and then reimburse the plaintiff out of the balance of the proceeds of sale for the price to be paid for the cauliflowers, and then the profits arising from the adventure were to be equally divided between the plaintiff and the defendant. The court further found that the enterprise proved a failure, and that there were no profits therefrom to be divided between the parties thereto; and, as a conclusion of law, that the plaintiff had established no cause of action against the defendant, and that the defendant was entitled to judgment against the plaintiff, dismissing the complaint, with costs, and judgment was ordered accordingly. On the first Monday of March, 1890, a judgment was duly entered upon said decision dismissing the. complaint of the plaintiff upon the merits, and directing that the defendant recover of the plaintiff the sum of $220.58, the amount of the costs and disbursements of the defendant as adjusted bj^ the clerk. On the 10th of April, 1891, an order was entered at a Special Term held by the justice who had tried the case, reciting the entry of the foregoing judgment, and that the plaintiff had subsequently made a motion before said justice for a new trial on the ground of irregularity and surprise, and that the court had, by an order duly entered on tile 20th of March, 1891, denied said motion for a new trial, but with leave to the plaintiff to move to amend said judgment so as to appoint a referee before -whom the defendant should account for the goods sold by him and the profits realized therefrom, and ordering and adjudging that the judgment entered on the first Monday of March, 1890, be, and the same was thereby amended by adding to the foot of said judgment as follows: And here follows the appointment of a referee to take and state the accounts between the plaintiff and the defendant. Pursuant to said order of reference, proceedings were had before the referee, who reported in favor of the plaintiff, and to whose report exceptions were filed, which were overruled, and judgment entered in favor of the plaintiff. In the meantime the defendant had died, and the action was continued against the present defendants as his executor and executrix.

The appeal brings before us the regularity of the order entered on the 10th of April, 1891, amending the judgment entered on the first Monday of March, 1890, and of the judgment entered upon the .referee’s report made pursuant to said amended order.

In the disposition of this appeal it is not necessary to consider any of the questions raised by the apjieal from the judgment, for the reason that we are of opinion that the alleged amendment of the judgment was erroneous, and conferred no jurisdiction whatever upon the referee to proceed in the action. The cause had been tried and findings of fact made that there were no profits arising from the enterprise, and as a conclusion of law, necessarily following from such findings of fact, that the plaintiff had established no cause of action against the defendant, and that the defendant was entitled to judgment against the plaintiff dismissing the complaint with costs. Such a judgment had been entered, and so long as that judgment existed there was certainly nothing further which could be done in the action with a complaint dismissed by a competent judgment; the plaintiff certainly can have no recovery in such an action.

Without considering the question as to whether the court could or could not have amended the judgment by vacating that which had already been entered, it is sufficient to say that at least until the judgment dismissing the complaint was vacated, no other or different judgment could be rendered as against the defendants. It certainly would be an anomaly in a litigation to have a judgment dismissing a complaint and at tlie same time granting relief to the plaintiff because of the cause of action alleged to have been set out in the complaint. This conclusion, which seems to us to be inevitable, makes it unnecessary to consider any of the questions raised by the appeal from the judgment entered upon the referee’s report, for the reason that the order amending the judgment appointing the referee being reversed, all the subsequent proceedings necessarily fall. '

The result of this case strikingly illustrates the ill-advisedness of the change in practice made by the present Code, from tliat which had previously prevailed in respect to the review of intermediate orders. The plaintiff, after the judgment was amended, and without any notice upon the part of the defendant that such amendment was to be questioned, goes on with his reference, incurs the expenses of a trial before the referee, succeeds, and all his proceedings 'become of no value, because of the review of an intermediate order on the appeal from the judgment thus procured.

The order of the 10th of April, 1891, should be reversed, and the judgment appealed from vacated, but under the circumstances without costs.

Foulbtt, J., concurred.

O’Brien, J.:

I concur for reversal, but think plaintiff should have leave to move to set aside or resettle the judgment.

I think it reasonably clear that tlie trial judge, after the entry of judgment, and on his attention being called to the status of plaintiff which entitled him to an accounting, intended to amend or modify the judgment so that such relief might be accorded. This was attempted by the order referring it, which, while the judgment stood dismissing the complaint, could not be done; and I agree with the presiding justice that the order of reference and the subsequent judgment must be reversed.

The plaintiff, assuming that the order of reference was proper, has no doubt allowed the time to appeal from the judgment dismissing his complaint to expire.

On tbe accounting it was decided that the defendant was indebted to plaintiff in the sum of $5,103.'TA; and yet, as the result of a mistake, he finds himself out of court because he has lost his appeal.

It may be that on a new trial plaintiff might not recover so much, or anything at all, but justice demands tliat there should be a new trial.

Here, then, a mistrial lias occurred, but how to remedy the injustice is by no means clear. I think, however, that the reversal should be with leave to plaintiff to apply upon a case and exceptions for a new trial, or upon motion to resettle or set aside the judgment, or to make such motion before tbe trial judge as the practice permits.

Order of April 10, 1891, reversed and judgment vacated, without costs.


author: Van Brunt, P. J.:

text:
    Edith Mason Faxon, Respondent, v. John Mason and Another, Appellants.

      Assignment for the benefit of creditors — refusals to find that certain evidence impeached its validity — exempt property — assignee not personally charged with costs.

    A trial court is not bound to find evidence, but should confine itself to the finding of conclusions derived therefrom, and in an action where the sole issue presented was whether an assignment was made to hinder, delay and defraud creditors, it is proper for the court to refuse to find that certain transactions •and certain evidence did not tend to establish the plaintiff’s cause of action.
    The evidence considered and commented upon which is sufficient to sustain the finding of a trial court that an assignment was made to hinder, delay and defraud the creditors of the assignor.
    Where hooks claimed to be exempt under the provisions of sections 1390 and 1391 of the Code of Civil Procedure exceed in value the sum of $850, even though considered to be the tools and implements of their owner, they are not exempt except up to that amount.
    In the performance of the duty which devolves upon an assignee for the benefit of creditors he is hound to defend the assignment, unless he is personally acquainted with the facts which constitute the fraud for which the same was set aside, and in the performance of such duty he should not be personally charged with the costs of an action.
    Appeal by tbe defendants, John Mason and John Oscar Ball, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of December, 1893, rendered upon the decision of the court after a trial at the New York Special Term, setting aside as fraudulent and void as against the plaintiff a general assignment for the benefit of creditors.

      II. A. Forster and F. Bien, for the appellants.

      J. Byrne, for the respondent.
   Van Brunt, P. J.:

This action was brought to set aside an assignment executed by the defendant Mason, upon the ground that it was made with intent to hinder, delay and defraud creditors.

After a trial the court held that the assignment was made with intent to hinder, delay and defraud creditors, and granted a judgment setting it aside, and from that judgment this appeal is taken.

It is claimed by the appellants that the learned judge erred in not making certain findings proposed by the defendants. But it seems to us that no error was committed in this regard. The question before the court was whether the plaintiff could establish that tlie assignment of the defendant had been made to hinder, delay and defraud creditors, and this was the only question of fact which it was necessary to pass upon in order to determine the question as to whether the plaintiff or the defendants were entitled to judgment.

All the requests which were made upon the part of the defendants were evidential in their character, and the court is not bound to find evidence, but may, and should, confine itself to the finding of conclusions derived from the evidence. The sole issue presented being as to whether the assignment in question was made to hinder, delay and defraud creditors, and this being strictly a question of •fact, the court seems to have been right in refusing to find that this transaction and that transaction, this bit of evidence and that bit of evidence, did not tend to establish the plaintiff’s cause of action.

This brings us to a consideration of the claim made upon the part of the appellants, that there was no proof which justified the court below in finding that the assignment in question was made with intent to hinder, delay and defraud creditors. There were various transactions which were investigated during the progress of this trial, in respect to some of which it may very well be that no proof of fraud, such as would invalidate the assignment, was presented. But there are others in respect to which we can come to but one conclusion, namely, that there was an evident intent upon the part of the assignor to withhold property which belonged to him from the operation of the assignment.

' A reading of the evidence and a consideration of the claims which have been made in respect thereto by the appellants lead irresistibly to the conclusion that the alleged gift of all the personal property of the defendant Mason to his wife, if it ever occurred, was never intended to be absolute unless circumstances required it. The character of the testimony of the wife of the defendant is certainly remarkable. Almost the whole of her direct examination was a mere assent by her to propositions suggested by the counsel for the defendants. The iudeiiniteness of her memory in respect to the circumstances of the alleged gift would be in itself a matter naturally calculated to create suspicion. But when we have proof of the fact that the defendant assumed to exercise control over some of ■ this property alleged to have been given to the wife, as his own, and even now claims the ownership of other of such'property, it does not seem possible to come to any other conclusion than that which has been above suggested. It is asserted by the wife that at the time of her wedding, or prior thereto, the defendant gave all his personal property to her, consisting of horses, carriages, furniture, pictures, etchings, books, etc., and that subsequently thereto he gave her the books which he purchased. She further testified to the fact of her husband having bought in his name for her, certain furniture; but that' she furnished the money which had been received from her father and given to her husband, who used it for that purpose. She is unable to state the circumstances under Avliich these various gifts were made; but only states in a general Avay, that everything which the husband owned, including his watch and shirt studs, were given to her. Why, when the shirt studs were given, the shirt was not given also we cannot imagine, because the defendant seems to have been careful to strip himself of every particle of personal property which he could possibly own. When we come to the evidence of the defendant he is able to state with a little more particularity the circumstances of tlie gifts in question; and lie testifies to having made the gift of this personal property to liis wife at tlie time of liis marriage, and also that he had given to his wife all of his books,, without which it was impossible to carry on his business; that he gave them to his wife because she wanted them •— she took a great-deal of interest in his library, and had a large one of her own — she combined them, and he gave her his own so that she could call the whole thing her own.

In reference to the furniture alleged to have been bought for his wife, upon the trial he testified that he received the money in the-shape of a check from his wife’s mother or father, and that that check was deposited to his credit and lie paid the money to the cabinet maker for the furniture. Upon his examination in supplementary proceedings the defendant gave a different version of this transaction. lie stated that he could not even remember the circumstances of her giving the money with which to purchase it. And when asked “ You have no idea where she obtained the money ? ” he answered: “I think it was money she had saved — money that-her parents had given her before we were married. Q. Did she have a bank account ? A. Yts, and had ever since we have been married. Q. Did she give you a check ? A. No, sir; she gave me the money — drew it out of the savings bank ; I took tlie money to the store and paid the bill by check.”

It is true that the witness says that the testimony upon this trial and in the supplementary proceedings was about the same; but-there seems to be quite a radical difference. And notwithstanding this gift, when the witness writes to his sister in regard to the exchange of furniture, he talks about his furniture and not liis" wife’s.

It is undoubtedly true that a large portion of this furniture was-stored in his wife’s name for a period of time anterior to the failure. But this circumstance does not overcome the absolutely convincing proof that this gift was a mere sham, when we consider that notwithstanding the positive evidence that he had given to his wife all the books which he used in his Business, he upon the trial, and his-counsel upon the argument of this appeal, claim that tlie books engaged in his business belonged to him, and that they were exempt, as tools of trade. Now, if these books belonged to him, certainly all the other furniture which he had given to his wife belonged to him. Iiis claim that he still had the ownership of these books characterizes the nature of the whole of the gift. They were to be his wife’s if anybody could take them; and what he supposed nobody could take remained his. The evidence as to the gift of these books is just as strong as that relating to any other piece of personal property claimed by the wife.

In view of this condition of the evidence, no other conclusion can be arrived at than that already suggested, that the gift was only to be good in so far as it was necessary to keep the property out of the hands of creditors. It would seem, however, that this whole idea in-regard to this gift was'an afterthought, conjured up for the purpose of protecting some part of this defendant’s property from his creditors.

The question then arises as to the claim made that those books which were withheld from the assignee were the defendant’s tools of trade, and consequently were exempt from the claims of creditors.

It would seem that this claim is effectually disposed of by sections 1390 and 1391 of the Code of Civil Procedure. Among the exemptions, as far as applicable to the case at bar, it is provided that the tools and implements of a mechanic necessary to the carrying on of his trade, not exceeding in value twenty-five dollars, shall be exempt; and by section 1391 it is provided that, in addition to the exemptions allowed by the last section, necessary household furniture, working tools and team, professional instruments, furniture and library not exceeding $250 in value are exempt. The books in question, even if considered the tools and implements of the defendant, exceed in value the sum of $250 greatly, and, therefore, were not exempt except to that amount. And all this property was deliberately and intentionally kept from the assigned estate.

In view of these considerations, it is apparent that the court below had more than ample evidence to justify the conclusion that this assignment was made with intent to hinder, delay and defraud the creditors of the defendant Mason. There was a willful withholding of property; there was a deliberate concoction of the claim of a gift to the defendant’s wife, which had no substantive exist•ence, but was a mere myth, and it seems to us solely the offspring of the imagination.

The court, therefore, was more than justified in making the finding which it did in regard to the fraudulent character of the assignment.

Some question is made as to a ratification by the plaintiff' of the assignment which was set aside. It is hardly necessary to discuss such a proposition, because all the affirmative acts done which could amount to a ratification had taken place prior to the time when the plaintiff had any knowledge of the fraud because of which the assignment was set aside.

It is further claimed that the court erred in not allowing the assignee compensation for his services in caring for and preserving the estate. We have examined the judgment in vain to find any determination upon that point. A referee has been appointed to take and state the accounts of the assignee, and upon such reference the question of compensation to the assignee may properly be considered.

We think, .however, that the assignee should not have been charged personally with the costs of the action. In the performance of the duty which devolved upon him as assignee, he was bound to defend the assignment, unless he was personally acquainted with the facts which constituted the fraud for which the same was set aside. It does not appear from the evidence in this case that he was so cognizant, or that he had anything to do with the fraud which resulted in the setting aside of the assignment, and the judgment should be modified in that respect. ’

The judgment appealed from, as so modified, should be affirmed, with costs against the defendant Mason, but Avithout costs as to the defendant Ball.

O’Brien and Follett, JJ., concurred.

Judgment modified as directed in opinion and as modified affirmed, with costs against the defendant Mason, but without costs as to the defendant Ball.


text:
    Felix St. Anna Govin, Respondent, v. Luciana Govin De Miranda, as Executrix, etc., of Felix Govin y Pinto, Appellant.

      Delivery — essential to the execution of an instrument of trust.

    A delivery is equally as necessary to tlie due execution of au instrument as its signing and acknowledgment, and tlie signing and acknowledging of an instrument without delivery does not complete its execution.
    The mere signing and acknowledging of a declaration of trust, without placing the evidence thereof in the custody of another, is insufficient to create a trust, in the absence of proof of the completion of the transaction, and the parting with the title to the property, in such declaration mentioned.
    Appeal by tlie defendant, Luciana Govin De Miranda, as executrix, etc., of Felix Govin y Pinto, from a judgment of tlie Supreme Court in favor of tlie plaintiff, entered in tlie office of tlie cleric of tlie county of New York on tlie 26tli day of October, 1893, upon tlie verdict of a jmy for $11,000, by direction of tlie court, after a trial at tlie New York Circuit, and also from an order made at tlie New York Circuit on tlie 24tli day of October, 1893, and entered in said clei’lc’s office, denying tlie defendant’s motion to set aside the verdict and for a new trial made upon tlie minutes.

      JE. O. Jmies, for tlie appellant.

      A. Kling, for tlie respondent.
   Van Brunt, P. J.:

The complaint in this action alleged the death of one Felix Govin y Pinto in May, 1891, leaving a last will and testament, which was duly admitted to pi*obate in the office of tlie sui’rogate of the county of New York and letters testamentary issued to the defendant; that the plaintiff was the owner, and entitled to the immediate possession of a certificate for $10,000 issued by the United States government, with interest thereon payable at tlie l’ate of four and a half per cent per annum; and that prior to the 8th of November, 1881, said certificate so belonging to the plaintiff was delivered to the deceased in trust to and for the benefit of the plaintiff, and that tlie deceased and his legal representatives from time to time collected the interest which accrued thereon; that the deceased and the defendant in this action have refused to deliver to the plaintiff said certificate of $10,000 and the interest which accrued thereon, although duly demanded, and judgment is claimed for $10,000, with interest thereon.

The defendant, answering the complaint, denies such ownership of the plaintiff in the certificate mentioned in the complaint, and the delivery thereof to the deceased; and upon information and belief denies that the deceased neglected or refused to deliver the certificate or the proceeds thereof,1 but admits that she refused to deliver to the plaintiff the certificate, and alleges that there was no such certificate in the possession of the deceased at the time of his death.

Various other allegations are made in the answer by way of defense, which it is not necessary to repeat here.

These issues coming on for trial a verdict was directed for the plaintiff, and from the judgment thereupon entered this appeal is taken. The plaintiff, at the trial, to maintain the issues upon his part, introduced the following instrument, which was signed by the deceased and acknowledged by him before a notary public. The defendant’s counsel objected to the introduction of the paper upon the ground that there was nothing to show that it had ever been delivered by the deceased. This objection was overruled and the paper was read in evidence as follows:

“ State and City ok New York, May 25th, 1881.

“For the sum of $1 to me in hand paid, the receipt of which is hereby acknowledged, and for certain other valuable considerations, I do hereby transfer, set over and deliver to the young man known as Felix Govin Diaz, a native of Matanzez, island of Cuba, now living at No. Ill East Thirty-ninth street, in the city of New York, two certificates for $10,000 each ($20,000) of the United States four and a half per cent loans, under the act of Congress entitled 1 An act to authorize the refunding of the national debt,’ approved July 11, 1810, issued one Jan. 18, 1818, letter A, 13,235, and the other one issued May 17, 1877, letter A, 10,642. Said certificates will be retained in my custody for the present as trustee for the said Felix Govin Diaz.

“FELIX GOVIN Y PINTO, [l. s.]

“ Instead of two certificates, only one of ten thousand dollars.”

The plaintiff then offered and read in evidence the original will and codicil of the deceased, which was duly executed.

It appeared that after the death of said Pinto, and on the day of his funeral, his safe was opened and it was found to contain among other things an envelope in which were $50,000 of United States bonds and the paper above mentioned, and upon the envelope was written in the handwriting of the decedent the following :

“ This envelope contains eight certificates of United States four and a half per cent loan all of sixty thousand dollars ($50,000), which belong to Felix Govin-Diaz, ten thousand; Emilia Govin and Guillermina Govin, $20,000 each. I will preserve the interest at present to help at their subsistence.

“FELIX GOVIN Y DIAZ.

“New York, May 2oth, 1881.

“Felix ten, Emilia twenty, Guillermina twenty.”

There was also found another envelope containing a paper which read as follows:

“ In possession of Ramon M. Estevez there are sixty thousand dollars in U. S. bonds, which I declare belong to the three children, brother and sisters, Emilia, Felix and Guillermina Govin, residents of this city, living at 141 E. 39th St. Resides in my box there is a legacy which contains $29,000 R. R. Ronds, Iowa Division; of these ten thousand belongs to Luz Diaz y Sanchez, mother of the above-mentioned individuals; she has a note for the same signed by me, and the rest belongs to the above-mentioned Emilia, Felix and Guillermina in eqiial parts.

“ No one may go contrary or against this declaration, as it is based under conscience and justice; to me alone is reserved the right to do with this money as I deem proper.

“ FELIX GOVIN Y PINTO.

“New York, Deo. 8th, 1883.

Acknowledged before me this 15th ) day of December, 1883. f

“ Jas. W. Hale,

Pfotcmo PubUeo, 4 Hanover St.”

This envelope was indorsed as follows:

“ A declaration in favor of Emilia, Felix, Guillermina Govin and Luz Diaz y Sanchez, who lived in 141 E. 39th St.”

These two envelopes with their contents were, on the day after they were so found in the decedent’s safe, sent to the mother of the plaintiff. The only portion of the will of the testator which is claimed to be applicable to the questions in dispute in this action is the fifth clause, which is as follows:

“ Fifth. There are in my possession under cover sixty thousand dollars belonging to Emilia, Felix & Guillermina, residents to-day of New York, twenty thousand dollars to each one, in four and a half per cent bonds of the United States of America, which will be delivered to them as they reach twenty-one years, and in the meanwhile they will receive the interest. The surname of the three persons indicated in this article is Govin.”

It further appeared that the deceased during the years 1877 and 1878 purchased and paid for by his own checks, amongst others, the two bonds referred to in the instrument of the 25th of May, 1881, herein set forth ; and that the bond which forms the subject-matter of this suit, one of the two therein mentioned, was sold by the deceased on the 5th day of September, 1890, and that the deceased from the time he acquired the same until its sale, collected the interest thereon.

It was claimed upon the part of the plaintiff that the evidence showed title in him to the bonds which had been sold by the deceased. It was objected upon the part of the defendant that no such title was shown in that the property was by the evidence proved to belong to the deceased and that the alleged transfer was of no avail, because it liad not been delivered, and, therefore, was never executed.

The learned court, probably relying upon the case of Govin v. De Mircanda (110 N. Y. 474), which held that the parties interested in the securities referred to in the paper above mentioned, acknowledged December 15, 1883, had a right to recover the same, directed judgment in favor of the plaintiff. In this, we think, the learned court erred. There is a marked distinction between the facts of the case at bar and those in the case cited.

It is claimed upon the part of the plaintiff, and his right to recover must necessarily rest upon that claim, that the security which is sought to be recovered in this action was transferred by the deceased to the plaintiff by the instrument of the 25th of May, 1881. The validity of this contention must depend upon the fact as to whether an execution of such instrument has been established. It is a common error to suppose that execution means the signing and acknowledging of an instrument. But there is another requisite which is equally necessary to its due execution, namely, its delivery. Hence the significance of the witness clause which in former times prevailed where the execution of instruments was witnessed. Such clause was “ signed, sealed and delivered,” this, in the case of a sealed instrument, being necessary to complete execution.

Applying this rule to the facts of the case at bar, the signing and acknowledgment of the instrument in question without delivery did not complete its execution. It would be a dangerous rule to adopt that simply because a man signed an instrument and acknowledged it, and kept it in his possession and then died^ that the party who would have been entitled to claim under said instrument, had it been delivered to him, could, notwithstanding this failure to deliver, claim thereunder after the decease of the party signing it. For instance, a deed is signed and acknowledged in anticipation of the closing of a contract for the sale of real estate, and the grantor dies. Under such a rule the grantee in the deed would be entitled to recover the property described in the deed, although he would have paid nothing for it, because there would be a grant-and an acknowledgment of the consideration, and nobody could prove that such consideration had not been ¡said.

So in the case at bar the instrument in question states: “ I do hereby transfer, set over and deliver;” and it being established that the title to the security was in the deceased at this time, it required some transfer in order to clothe the plaintiff with title. Such transfer never having been completed by delivery, it is clear that the deceased never parted with his title. The case which has been cited is clearly distinguishable from the one at bar. In the instrument which was the foundation of the right to recover in that case, there was an acknowledgment by the deceased that he held in his possession property which belonged to the plaintiff in that action. There was no evidence that by the instrument he attempted to transfer any title, but it was a mere acknowledgment that he was the custodian of the property, and there, was no evidence to contradict this declaration. This was the ground upon which this court affirmed the judgment in question, and it was upon this ground distinctly that the Court of Appeals held that the plaintiffs had a right to recover in that action.

But it is urged that by this paper the deceased created himself a trustee of these securities for the plaintiff, and that such trust was irrevocable, referring to the case of Martin v. Funk (15 N. Y. 134). But the facts of that case are entirely different from those in the one at bar. In no case has it ever been held as yet that a party may, by transferring his property from one pocket to another, make himself a trustee. In every case where a trust has been established the party creating it has placed the evidence thereof in the custody of another, and has thereby shown that it was intended to be a completed act. In the case at bar the deceased kept all the evidence of transfer within himself, which is more consistent with the idea of an uncompleted purpose than of one which has been carried into final effect. And the fact that the deceased treated this property as his own by the sale of it, necessarily strengthens the conclusion that he considered the transaction incomplete and unfinished, and that he had not parted with the title to the property which he still considered his own. There having been, therefore, no proof of the execution of this alleged transfer, it seems to us that the court was wrong in the conclusion at which it arrived, and that the judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Follett and O’Brien, JJ., concurred.

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


text:
    Howard Conkling, Respondent, v. The New York Elevated Railroad Company and Another, Appellants.

      Deed from commissioners in partition and possession thereunder — presumptive évidence of title — irregularity in the proceedings for partition — execution of a power and its effect.

    A deed from commissioners claiming to be appointed under a will partitioning certain real estate, and evidence of possession thereunder for over twenty years, are sufficient to create at least presumptive evidence of title to such real estate.
    Whether there is any power to partition or not, when an actual partition of real estate has been made and the parties have received deeds thereof and have acted thereon, such partition will be held valid and effectual even though there are some irregularities in the proceedings for partition.
    Upon the execution of a power contained in a will the devise takes effect as though it was contained in the will conferring the power, and is not deemed to descend by virtue of the appointment contained in a will executed pursuant to a power of appointment contained in a previous will.
    Appeal by the defendants, The New York Elevated Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of August, 1893, upon the decision of the court after a trial at the New York Special Term.

      P. L. Mo/yna/rd, for the appellants.

      JE. O. Perhins, for the respondent.
   Van Brunt, P. J.:

This action was brought to restrain the defendants from the maintenance and operation of their elevated railroad in front of the plaintiff’s premises, No, 274 Third’ avenue, and also to obtain past damages. The court awarded judgment for past damages and also for fee damages, with an injunction in the alternative.

The defendants appeal from this judgment, and allege error in that the plaintiff failed to show that the fee of the property in question was vested solely in him, and that he could not give a good title to the easements interfered with by defendants in return for the alternative sum which the defendants were directed by the judgment to pay; and, also, that the plaintiff failed to show any substantial injury to the fee of the property involved in this action.

The first objection mentioned is based upon the claim that there was no proper partition of the property amongst the parties who became interested by the appointment made in the will of one Catherine L. Wolfe. The premises in question were part of the estate of Peter Lorillard, who died on the 23d of May, 1843, in possession thereof, leaving a last will and testament, dated the 24th of February, 1843. By this will Peter Lorillard directed his residuary real estate to be divided into five shares, one of which he .devised absolutely to his daughter, Dorothea A. L. Wolfe, with full power to grant and devise the same without the concurrence of her husband. The testator also empowered his executors to appoiut commissioners to divide and partition the residuary estate. Such commissioners were duly appointed and made such division by deed dated July 1, 1843, and the premises in question with others were thereby conveyed to Dorothea A. L. Wolfe. Dorothea A. L. Wolfe died in possession of the premises in question, leaving a last will and testament bearing date the 27th of June, 1865, which will was duly admitted to probate and recorded on the 12th of June, 1866. By the third clause of her will the said Dorothea A. L.Wolfe devised to trustees all the real estate devised to her by her father in fee, for the benefit of her husband and daughter during their lives, and that of the survivor, giving to the daughter power to appoint the said real estate to and among her descendants, if any, in such lawful manner or proportions as she might think proper, and in default of such appointment the said Dorothea A. L. Wolfe devised said estate to the descendants of her said daughter. The said will further provided that in case of the decease of the testatrix’s daughter without leaving issue her surviving, said real estate should go to her nephews and nieces, children of her brothers and sisters living at her daughter’s decease, as tenants in common in equal shares. But by said will the daughter was authorized and empowered, nevertheless, in the event of her so dying leaving no child or other descendant, to limit and appoint said real estate by will executed without the concurrence of any husband to and among the descendants of the brothers and sisters of said testatrix in such manner and in such proportions as her said daughter in her discretion might think proper.

The said will further provided as follows: “And should the said trust estate, upon the termination of said trusts, go or belong, under the provisions of this my will, to more than one person, then I emjxower and direct the said trustees to cause an equitable partition thereof to be made, under their direction, to and among the parties so entitled ; and for that purpose do nominate and appoint, under their hands and seals, three suitable persons” as commissioners to appraise, allot and set apart, in such manner as may be just and equitable, the respective shares of such estate to the parties entitled thereto.

Catherine L. Wolfe, the daughter of the testatrix referred to in. the above will, died in 1887, never having been married, leaving a last Avill and testament, bearing date the 14th of February, 1884, and a codicil bearing date the 24th of March, 1885, which Avere duly admitted to probate. By this will Catherine L. Wolfe appointed the estate, real and personal, held in trust pursuant to the proAÚsions of her mother’s aat.11, to certain nepheAvs and nieces, and the sumATng children of a deceased niece, and a deceased nephew of Dorothea A. L. Wolfe, upon the death of said Catherine L. Wolfe. The persons acting- as trustees under the will of Dorothea A. L. Wolfe appointed commissioners, who partitioned the real estate Avliich had been held in trust for said Catherine under the third clause of the Avill of said Dorothea A. L. Wolfe, betAveen the devisees and appointees thereof under the will of Catherine L. Wolfe, and deeds were executed conveying the shares to the persons to Avhom they were allotted, and • the grantees in said deeds went into possession of the same. The premises in question were allotted to Alfred R. Conlding, Howard Conlding and Laura R. Conlding, as tenants in common, and subsequently said Alfred R. Conkling and Laura R. Conlding conveyed the premises in question to the plaintiff.

It is urged that there is no px-oof that commissioners Avere appointed under the Avill of Peter Lorillard, the former ownex-, and that if' Dorothea A. L. Wolfe ever secui-ed title she vested the right to devise the same in her daughter, subject to conditions, the chief being that it should eAmntually go to the children of her brothers axxd sisters; that Cathei-ine L. Wolfe devised the property to her cousins, but there is no proof that some of them Avere not children of her father’s brothers and sisters, and that the partition of the property was made by commissioners appointed under the will of her mother, Dorothea A. L. Wolfe, such appointment being void since the power vested in Catherine L. Wolfe, the daughter, was exercised by her, and that there was no proof that there were not other children of the brothers and sisters who did not share in this partition, and who have not released their rights in this property to the plaintiff, and that no releases or quit claims were given by any of the devisees taking under either will to the property involved in this action.

As far as the objection in reference to the failure of evidence as to whether the cousins were the children of the brothers and sisters of Dorothea A. L. Wolfe, or of her husband,'is concerned, it does not appear from the record that any such objection was raised upon tiie trial, or any attention called to this 'defect of proof, which might then easily have been supplied, and it cannot now be urged at the General Term for the first time.

As to the objection that there is no proof that commissioners were appointed under the will of Peter Lorillard, it is sufficient to say that a deed from commissioners claiming to be appointed under the will of Peter Lorillard was offered in evidence, and it appeared that possession had been had of the premises under such partition from 1843 down to the death of Dorothea A. L. Wolfe, which was sufficient to establish, at least, presumptive evidence of title.

The objection to the deed in the last partition does not seem to be well taken. The commissioners were properly appointed under the will of Dorothea A. L. Wolfe. The property devised descended under the will of Dorothea A. L. Wolfe, although the appointment to the particular devisees was made in the will of Catherine L. Wolfe, pursuant to a power conferred by the will of her mother. It is a familiar principle that upon the execution of a power the devise takes effect as though it was contained in the will containing the power, and it is not deemed to descend by virtue of the appointment contained in a will executed pursuant to a power of appointment contained in a previous will.

And, furthermore, it may be said that whether there was any power to partition or not, it appearing from the evidence that this partition had been made, that the parties had received their deeds and that it had been acted upon, it would be held valid and effectual even though there were some irregularities in the proceedings for partition, which, however, we do not by any means intend to assert. It would seem, therefore, that the plaintiff had acquired a good title to the premises in question and was entitled to maintain this action for the interference with the easements which were appurtenant thereto.

In respect to the damages which have been awarded by the court below, we see no reason to interfere with the conclusion arrived at. It is true that various findings were refused by the court, but we think all the findings the defendant could demand have been found by the court, and there is no reason for disturbing the judgment.

Judgment should be affirmed, with costs.

Follett and O’Brien, J J., concurred.

Judgment affirmed, with costs.


text:
    James A. Merritt, Plaintiff, v. John A. Fowler, Impleaded with Eben Haviland, Defendants.

      Judgment — action maintainable thereon — when leave to sue unnecessary.

    Prior to the inhibition of the statute requiring leave to sue upon a judgment in New York State, immediately upon the recovery of a judgment an action might be maintained thereon and another judgment recovered, and so on ad infinitum.

    The recovery of a judgment is a new contract between the parties, and an action may be maintained thereon as upon a contract.
    Upon the trial of an action brought upon a judgment recovered in the Supreme Court of the State of New Jersey, it was shown that the Now Jersey judgment was recovered upon a judgment rendered in the Supreme Court of the State oD New York between the same parties, which was the original cause of action.
    No leave was granted to the plaintiff to sue upon the recovery of the first New York judgment, and more than twenty years had elapsed since the recovery thereof.

      Held, that, there being no inhibition against suing upon a New Jersey judgment, and no requirement that the leave of the court should be obtained in such a case, the action was maintainable.
    Motion by the defendant, John A. Fowler, for a new trial on a case containing exceptions ordered to be heard at the General Term in the first instance, after a verdict for $905.71 in favor of the plaintiff, rendered by direction of the court after a trial at the New York Circuit before the court and a jury.

      I. N. Miller, for the motion.

      W. H. Beam, opposed.
   Van Brunt, P. J.:

This action was brought upon a judgment recovered in the Supreme Court of the State of New Jersey in February, 1887. The defendants set up as an answer that the plaintiff recovered a judgment against the defendants in this action in March, 1871, in the Supreme Court of this State in Putnam county, which was the original cause of action upon which, in March, 1887, the plaintiff recovered the judgment in New Jersey referred to in the complaint. The answer further alleged that on the 17th of May, 1887, one Martin was appointed receiver in proceedings supplementary to execution under said judgment recovered in this State, and that said receiver sold at public auction all the right, title and interest of the defendant Fowler in and to certain real estate, and delivered a conveyance thereof to the purchaser, the defendant being ignorant of the amount realized upon said sale. The answer further alleges that the said receiver claims that there is vested in him as such receiver all the right, title and interest of said defendant Fowler in and to the said premises, and that said right, title and interest is of a value far in excess of the amount of said judgment, and more than sufficient to satisfy the same. The answer further alleges that no leave was granted to the plaintiff to sue upon the recovery in, Putnam county, and that more than twenty years have elapsed since the recovery of said judgment, this action having been commenced in June, 1893.

Upon the trial the plaintiff introduced an exemplified copy of the judgment roll in the action in New Jersey, wherein the plaintiff herein was plaintiff, and the defendant John A. Fowler was defendant ; and it appeared that said action was based upon said judgment recovered in Putnam county.

The defendant offered in evidence an order of the Supreme Court, filed in the office of the clerk of Putnam*county, appointing a receiver of all the real estate, debts, property, equitable interest and things in action of the defendant in an action in which the present plaintiff was plaintiff, and the present defendants were defendants; but what was the foundation of that order does not appear. The defendant also offered in evidence an order directing said receiver to sell all the right, title and interest of the defendant Fowler in certain real estate. The parties having rested the court directed a verdict in favor of the plaintiff, to which the defendant duly excepted, and the court ordered the exceptions to be heard in the first instance at the General Term.

The claim made upon the part of the defendant upon this motion is that the judgment between the same parties for the same original cause of action in the Supreme Court in Putnam county was a bar to this, action. And various authorities are cited to the effect that an action between the same parties for the same cause is a bar to a new action, in respect to which there is no dispute. The difficulty with the defendants’ contention, however, is that this action is not for the same cause of action for which the action in Putnam county was brought, this action being upon a New Jersey judgment which is a contract in itself, and to recover upon the implied promise arising from the recovery of such judgment.

It is matter of history that prior to the inhibition of the statute requiring leave to sue upon a judgment in this State, immediately upon the recovery of a judgment an action might be maintained thereon and another judgment recovered, and so on ad infi/n-itnm, and thus costs be heaped up to an extortionate extent. And to prevent this abuse legislation was had by which in respect to a domestic judgment a suit could not be brought thereon except by leave of the court. The language of the Code is explicit in limiting this requirement to cases of judgments recovered in a court, of equity of this State.

If there was any doubt in regard to this proposition it seems to he set at rest by the case of the Gutta Percha & Rubber Mfg. Co. v. Mayor (108 N. Y. 276) where it is held that a judgment even of a foreign state obtained for a cause of action ex delictu becomes a debt, and the plaintiff is entitled to the same remedies as in an action upon contract, and it was decided that the plaintiff was entitled to maintain an attachment. So in the case of Taylor v. Root (4 Keyes, 335), in which it was held that in an action upon contract, a judgment obtained by the defendant against the plaintiff in an action of slander, might be set up as a counterclaim,' these cases holding that the recovery of a judgment is a new contract between the parties, and an action may be maintained thereon as upon a contract. There being, therefore, no inhibition against suing upon this New Jersey judgment- — this New Jersey contract — and no requirement for obtaining leave of the court in such a case, there does not seem to be any reason why the plaintiff cannot maintain this action.

It is suggested that if this action is maintained the plaintiff may immediately, upon recovering, sue thereon in New Jersey a second time, return here and sue a third time, and so on indefinitely, augmenting the costs and evading our statutes against suing without leave. If our Legislature has riot provided against such a hardship, if any such exists, it is not for the court to supply the deficiency. They have legislated to prevent such abuses in respect to domestic judgments, and they are not to be feared in respect to those obtained in a foreign jurisdiction.

The exceptions should be overruled and judgment upon the verdict ordered for the plaintiff, with costs.

Eollett and Parker, JJ., concurred.

Exceptions overruled and judgment ordered on verdict for nlaintiff, with costs.


author: Per Curiam :

text:
    Ellen R. Randall and Others, as Executors, etc., of Mary Pettigrew, Respondents, v. The New York Elevated Railroad Company and Another, Appellants.

      Appeal — statement that the record “contains all the testimony,’’ insufficient — when a judgment will not be reversed — evidence.
    A statement in the record upon an appeal from a judgment that the same “ contains all the testimony taken upon the trial in this action,” is not equivalent to the statement that the case contains all the evidence, and in the absence of the latter statement, the General Term is precluded from reviewing questions of fact.
    Where it can bo clearly seen from the opinion of a referee and from his findings, and conclusions, that no harm has resulted to the appellants from a judgment rendered against them, such judgment should not be reversed.
    Upon the trial of an action, the plaintiff introduced evidence, over the defendant’s, objection, as to the rental value of a certain bank building. The defendant asked one of its experts, “ Is it a fact that apartments in bank buildings bring-a higher figure then they do in others ? ” This question plaintiff’s counsel objected to as immaterial and irrelevant, and specifically upon the ground that evidence as to bank buildings was incompetent; the objection was sustained.

      Held, that the question was a proper one, and that the ruling was erroneous.
    Appeal by the defendants, The New York Elevated Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 21st day of August, 1893, upon the report of a referee.

      R. L. Maynard, for the appellants..

      Eugene X). Hcmlcvns, for the respondents.
   Per Curiam :

This is the. usual action brought by a property owner to obtain an injunction nisi. There is no statement in the case on appeal that it contains all the evidence, the nearest approach thereto being one that it “ contains all the testimony taken upon the trial of this •action.” That the latter expression is not the equivalent of the former has been many times held, and lately in the case of Koehler v. Hughes (73 Hun, 167), where the authorities are reviewed, and wherein, as repeatedly before^ it was held, that where the case does not contain all the evidence this court is precluded from reviewing questions of fact.

The only questions of law urged upon our attention are those having reference to the admission and exclusion of evidence, and ■twb motions made to dismiss the complaint, one at the end of plaintiffs’ case, and again when both sides had rested.

In the light of the exhaustive opinion of the referee, which shows that he neither misapprehended nor misapplied the law bearing upon the questions involved in this class of litigation, his findings of ■fact and conclusions of law seem to us to require no further comment, justifying as they do his decision.

Hpon the evidence, the only serious question relates to the exclusion of a question asked of one of defendants’ expert witnesses, as follows: “ Is it a fact that apartments in bank buildings bring a Iiigher figure than they do in others ? ” Notwithstanding the fact ■that the plaintiffs had adduced evidence, over defendants’ objection, as to the íental history of a bank building on the corner of Forty-seventh street and Third avenue, the plaintiffs’ counsel objected to this question as immaterial and irrelevant, and then specifically upon the ground that evidence as to bank buildings was incompetent. This objection was sustained, and we think erroneously; and if there were other similar errors appearing in this record, from which we could see that they in any way affected the judgment, it would be our duty to reverse it. It always comes with poor grace from counsel, who themselves have got in evidence of a particular kind, over-objection, to attempt to exclude the introduction of similar testimony when offered on their adversary’s behalf to explain or offset that first admitted. Where, however, as here, it can be clearly seen from the opinion of the referee, and the findings and conclusions-made by him, that no harm has resulted to defendants, then should the principle be applied which is so well expressed in the Steubing Case (138 N. Y. 658), as follows: “ There is considerable difficulty attending the trial of this class of cases, and a judgment should not be reversed if, upon the whole record, we can see that no harmful error was committed, and that the proper principles of law were, not misapprehended or misapplied.”

Our conclusion is that the judgment appealed from should be affirmed, with costs.

Present — Yan Brunt, P. J., O’Brien and Follett, JJ.

Judgment affirmed, with costs.