author: Freedman, J.

text:
    JOSIAH C. REIFF v. THE WESTERN UNION TELEGRAPH Co., THE MUTUAL UNION TELEGRAPH Co., et al.

      Telegraph companies.— Consolidation i>y lease.—Laws 1870, ch. 568.—Injunc-tion.— Corporations.—Statutory construction.

    Upon a motion by a stockholder of the Western Union Telegraph Co., to continue a preliminary injunction against the consummation of an agreement for the acquirement by lease of ail the property, lines, etc., of the Mutual Union Telegraph Co., it appeared that prior to the service of the temporary injunction, the transaction had been consummated excepting only the payment of the consideration by the Western Union Co.

      Held, that as such a transaction between telegraph companies is authorized by Laws 1870, ch. 568, it cannot be enjoined as tending to create a monopoly and contrary to public policy.
    Said leas'e was intended to cover the property of the lessors in different states, but contained a.clause that it should not be construed to pass title to property in any state where such transaction would be illegal, and made provision for adjustment of consideration in such case. It appeared that the consolidation of telegraph companies was illegal in the state of Pennsylvania where certain of the properly of said Mutual Union Co. was situate,

      Held, no ground for an injunction; that it is doubtful whether the constitution and laws of a state can be enforced against companies formed under the Jaws of another state and having power to consolidate at home; that whether or not the provision in the lease intended to meet the above objection, is sufficient, the objection is of no force here,- for a partial failure of consideration contemplated by the contracting parties, and with reference to which the bargain was closed, does not justify a court to interfere.
    Defendant, further objected that the consolidation of the Western Union Co., with the Atlantic & Pacific Co., and the American Union Co., and the increase of stock to pay therefor, and for distribution among the stockholders of the former company, had been adjudged illegal.
    o Meld, that the decisions made, went only so far as to pronounce illegal the scheme involved in that consolidation, of gratuitously distributing among the stockholders about 15 millions of increased stock, which rendered that particular agreement null and void.
    It was also objected that the stock and bonds of the Mutual Union Co. referred to in the lease were illegal.

      Meld, immaterial, if true, since they merely furnish the measure for the agreed rental; that it can make no difference to the Western Union Co. or its stockholders whether the rental is paid to the Mutual Union Co. or its stockholders; that as to the bonds, the Western Union Co. is estopped from disputing their validity.

      Further, held, as to all of the above objections, that they fail to show want of power, and involve only matters of discretion affecting price and questions of policy, and courts cannot dictate the business policy to be pursued by a corporation, though such discretion may be unwisely, imprudently or even recklessly exercised by it.
    Daws, 1870, oh. 568, provides that no purchase, sale, lease or conveyance by any telegraph company, under said act, "shall be valid, until it shall have been ratified and approved by a three-fifths vote of its board of directors or trustees, and also by the consent thereto in writing, or.by vote, at a general meeting duly called for the purpose, of three-fifths in interest of the stockholders in such company, present or represented by proxy at such meeting. ” The scheme in question was duly ratified and approved by three-fifths of the board of directors of the Western Union Co., and three-fifths in interest of the stockholders consented thereto in writing.

      Meld, not a sufficient compliance with the statute, inasmuch as such consent of the stockholders was not given at a general meeting called for the purpose.

      Accordingly held, that plaintiff was entitled to an injunction against the consummation of the lease in question during the pendency of the action, with leave to the Western Union Co., to convene a general meeting of the stockholders for the purpose of procuring the proper statutory ratification thereof.
    The principles of the law of corporations and of statutory construction, stated and applied by the court.
    Before Freedman, J., at Special Term.

      Decided March 27, 1883.

      Motion for continuance of injunction.
    The facts appear in the opinion.

      Sterne & Thompson, attorneys; George Biddle, John A. Beall and Simon Sterne, of counsel for plaintiff.

      Dillon & Swayne, attorneys for the Western Union Telegraph Co., and the individual defendants.

      Alexander & Green, attorneys, for the Mutual Union Telegraph Co.

       See Williams v. Western Union Co., 48 Super. Ct. 349; 49 ld. 140; 93 N. Y. 163; ld. 640.

   Freedman, J.

—This is a motion to continue a preliminary injunction restraining the Western Union Telegraph Co., its directors, etc., from making, or taking any steps to make an agreement for the acquirement by lease of the lines of the Mutual Union Telegraph Co. and restraining all the defendants from consummating any such lease, etc.

The action is brought by the plaintiff in his right as a shareholder of the Western Union Co., and its object and purpose is to permanently restrain the making or the consummation of any such lease.

On the motion it was made to appear by affidavits read on behalf of the defendants, that before the order containing the preliminary injunction was served, the agreement had been entered into, the lease executed and delivered, and the Western Union Co. put in possession of most if not all, the lines, and that about the only thing of substance remaining to be done towards full completion, is for the Western Union Co. to pay the consideration. For the purpose of the motion I must assume that that is the true situation.

The question then is whether the plaintiff, as an aggrieved shareholder of the Western Union Co., has shown any ground upon which a court of equity can restrain the final consummation of the transaction.

It is argued thatinasmuch as the purpose of the lease is to create and maintain a monopoly of telegraphic business, the lease is contrary to public policy. If this question was. to be determined upon the general principles of philosophy or the rules of the common law, there would be great force in the argument. Bnt it is for the law-making power of a state to define what public policy upon a given point shall be, and, as shown by me in Williams v. The Western Union Telegraph Co., the legislature of the state of New York has done so in unmistakable language in respect to telegraph companies.. Power was given to every such company to increase its capital to any desired extent upon a compliance with certain formalities and conditions, and chapter 568 of the Laws of 1870 expressly provides that, in order to perfect and extend the connections of telegraph companies in this state, and promote their union with the telegraph system of other states, any telegraph company organized under1 the laws of this state, may lease, sell or convey its property, rights, privileges and franchises, or any interest therein, or any part thereof, to any telegraph company organized under or created by the laws of this or any other state, and may acquire by lease, purchase or conveyance, the property, rights, privileges and franchises, or any interest therein, or any part thereof, of any telegraph' company organized under or created by the laws of this or any other state, and may make payments therefor in its own stock, money or property, or receive payment therefor in the stock, money or property of the corporation, to which the same may be so sold, leased or conveyed, etc., etc.

This statute has been heretofore construed by Judges Barrett and Van Brunt of the supreme court, who, in well considered opinions came to the conclusion that the powers thereby granted were so comprehensive, and given in such clear and unmistakable language, that it is difficult to imagine what arrangements two telegraph companies could make in reference to the conduct of their business which would not come within the protection of the act. It was held that it was the intention of the legislature to give to telegraph companies the power to make any and ah arrangements for the conduct of their business, either jointly or separately, which natural persons could possibly enter into, provided the consent of the directors and the stockholders of every such corporation shall be obtained and expressed in a certain way. Upon careful consideration and due reflection 1 could find no reason for differing from the views expressed by the two learned judges referred to.

I must, therefore, hold that under the act of 1870, the Western Union Co. possesses power to lease the lines in question.

The next question then is, whether the lease, as made, calls for the interposition of the court. It was made by the Mutual Union Co. as lessor, to the Western Union Co. as lessee. By its terms the lessor grants and leases to the lessee all and singular the telegraph lines owned by the lessor in the United States, wherever the same may be located, together with all appurtenances, and including also all patent rights and interests in patent rights belonging to or held or controlled by said lessor, and all rights, easements and franchises of every description whatsoever appertaining thereto, saving and excepting only the charter and corporate franchises of .the lessor, except so far as may be necessary or convenient for the use and operation of the lines and property leased. The lease is for the term of 99 years, and thereafter for such further term as will make the full term of 999 years, provided the same may be lawfully done under any renewal or extension of the charter of the lessor, or under the charter of any company succeeding to the lessor’s franchises, or under the individual ownership of the capital stock of the lessor. It then further provides as follows, viz:

It is, however, expressly understood and agreed that nothing herein shall be construed as intended or effective, to pass any title to, or interest in, any property of the lessor, except so far as by the constitution or laws of any State in which the said property is situate it may be lawful to transfer the same, but any property or interest which by reason of such laws or constitution may not lawfully pass to the lessee, shall be and remain the property of the lessor and under its exclusive control as completely in all respects as if this instrument had not been executed, but every ■ such property and interest, upon demand of the lessee, shall by the lessor, its successors or assigns, be conveyed or transferred under any agreement permitted by the said constitution or laws, and the consideration therefor shall enure and belong to the lessee, but subject to be returned or accounted for to the lessor without interest or rental, otherwise than is herein provided for, upon the termination of this lease for any cause. “ This provision shall apply with like force to any property or interest which would otherwise be liable to forfeiture under any contract made by the lessor.

“It is further agreed by and between the parties hereto, that in the event of a threatened termination, by limitation, of the present charter or incorporation of either or both parties hereto, during the term of this lease, proper steps shall be taken, in advance thereof, to procure an extension or renewal of the said charter or charters, or a re-incorporation of either-or both of said parties, so as to cover the full term hereby created, and in such case the provisions hereof shall apply fully and in all respects to any such extension, renewal or re-incorporation.

“ And in consideration of the premises, the lessee hereby covenants and agrees for itself, its successors and assigns, to pay during each and every year of the term hereby created, the rents following, to wit:

“First. The sum of three hundred thousand dollars per annum, payable semi-annually, on the first days of May and November, being interest at six per centum per annum, from the fifteenth day of February, one thousand eight - hundred and eighty-three, upon the mortgage bonds of the lessor, to the amount of five millions of dollars, which said interest shall be paid directly to the holders of said bonds at the time and place or places covenanted therein, and in all respects as required by the tenor of said bonds, until the same shall be fully paid and discharged.

“Second. On the first day of May in each and every year, after the year eighteen hundred and eighty-five, the full sum of fifty thousand dollars, to be applied as a sinking fund for the redemption of said bonds, which sum shall be paid to the Central Trust Company, of New York, as trustee, or his successors in the trust created by an indenture made on the twenty-second day of May, eighteen hundred and eighty-two, by and between the lessor and the said Central Trust Company and the lessee shall assume and pay said bonds as and when they may become due, and all sums which in the meantime become due for interest and sinking fund, except interest accrued prior to the fifteenth day of February, one thousand eight hundred and eighty-three ; but the lessee shall not be liable to pay the-portion of the rent above stipulated, except as may be required for such payments, nor after said bonds have been paid. Provided-, that at or before the maturity of said bonds, the lessee may agree with the holders thereof for any extension or renewal thereof, or may demand and receive from the lessor new bonds of no greater amount than may then be outstanding of the bonds above mentioned, and bearing no higher rate of interest, to be used in substitution therefor. And in that case all payment s required by said substituted bonds, whether for principal, interest or sinking fund, shall be made by the lessee. The lessee covenants that it will, at the request of the holders of said now outstanding bonds, or any of them, endorse thereon in proper terms its covenant to pay the interest and principal thereof.

“Third. The further sum of one hundred and fifty thousand dollars per annum payable semi-annually, on the first days of January and July in each year during the continuance of this lease ; the said sum of one hundred and fifty thousand dollars to be paid to the lessor or its successor company until the first day of January, one thousand eight hundred and eighty-five, and thereafter to the stockholders of the lessor or its successor company, semi-annually, on such. days, pro rata according to their respective-holdings of such stock, and the lessee covenants that on and after the first day of January, one thousand eight hundred and eighty-five, or sooner, if the lessor or its successor shall so elect, and if the liabilities which the lessor herein covenants to meet and existing controversies as to the amount of capital which the lessor can lawfully put forth have been adjusted to the satisfaction of the lessee, then at the request of tire stockholders or any of them of the said lessor or its successor company, the lessee will endorse in proper terms on the certificates of stock of the lessor or its successor company, and each of the said certificates respectively, its covenant to pay directly to said stockholders pro rata, the said sum of one hundred and fifty thousand dollars aforesaid ; reserving, however, to the lessor and its successor corporation, the right to bring suit in its own name for or upon any default of the lessee in making any payment at the time specified herein.’ ’

The lease contains numerous other provisions which it is not necessary to mention here.

The plaintiff insists that the lease is void under the constitution and the laws of Pennsylvania, and the laws of two other states. Only the constitution and the laws of Pennsylvania were laid before me, and from them it does appear that the consolidation of telegraph companies is not lawful in that state. But the constitution and the statutes of a state can have no extraterritorial effect, and hence it is a grave question whether they can be enforced against companies organized under and in pursuance of the laws of any other state and having power to consolidate at home. That there may be some difficulty, seems to have occurred to the contracting parties, for they sought to overcome it by an express provision of the lease to which I have referred. W liether in this way the difficulty has really been overcome, it is not necessary to determine. Por the contracting parties concluded the bargain with the constitution and the laws of Pennsylvania and of the several states of the United States in plain view, and with reference to them, and hence, any difficulty that may hereafter arise from any such source, would at most only impair the consideration to be paid by the Western Union Co. But a partial failure of consideration which was contemplated by the parties as likely or possible to occur and ■with reference to which the bargain was closed, does not justify a court to interfere.

It therefore remains to be seen whether there was anything in the manner in which, and the circumstances under which, the lease was entered into, which gives to the plaintiff a standing in .court. He complains, among other things : (1.) That about two years.ago the Western Union Co. illegally consolidated with the Atlantic and Pacific Telegraph Co. and the American Union Telegraph Co.; that in consequence thereof the capital stock of the Western Union was illegally increased from about 40 to 80 millions of dollars; and that such consolidation and increase of stock have been adjudged illegal; and (2.) That there were illegalities in the issue of the stock and the bonds of the Mutual Union Co. referred to in the lease, in consequence of which proceedings were commenced by the attorney general to vacate the charter of the Mutual Union Co.

Upon these points the papers submitted on both sides present a sharp conflict of evidence. Much, if not most, of plaintiff’s case is made up of mere conclusions. The affidavits on the part of the defendants negative every' averment, of the complaint and the moving affidavits which has any appearance of materiality. Of these two points, therefore, It may be said that all the equities claimed by the plaintiff. have been fully met.

But beyond that, it is not true that the courts have; denied the power of the Western Union Co. to consolidate; with the two companies named or to increase its stock to 80 millions. The'decision made only went so far as to adjudge that the scheme involved in that consolidation of gratuitously distributing among the shareholders of the Western Union about 15 millions of stock, was illegal and. rendered the particular agreement for consolidation null and. void. If those 1-5 millions of stock have been illegally distributed, the statute gives a remedy to the corporation, against the directors who caused it to be done. Moreover it is not even pretended that the lease now complained of; in any way grew out of, or has any relation to, the said consolidation.

So in respect to the alleged illegality of the stock and. the bonds of the Mutual Union Co., it may be saiff that, even if the charge were true, it would be immaterial. They merely furnish the measure for the agreed rental, and it-can make no difference to the Western Union Co., or-to its stockholders, whether this rental is paid to the Mutual • Union Co. or to the holders of its bonds or its stock. Concerning the said bonds it may be further said that the Western Union Co. cannot dispute their validity any more than it could dispute the validity of a bond and mortgage for usury after it bought the mortgaged premises and assumed to pay the mortgage. This being so, the stockholders of the Western Union Co. are in no better position. Nor can any stockholder of that company champion the supposed rights of the stockholders of the Mutual Union Co., none of which has complained.

The points made by the plaintiff which have so far-been considered, fail to show want of power. They involve only matters of discretion affecting the price and questions-of policy. The discretion may have been unwisely, imprudently, or even recklessly, exercised, and the policy pursued may be questionable. But no court can dictate the-business policy to be pursued by a corporation, nor can a. court prevent a party capable of contracting from making-a bad bargain. Neither can an unprofitable bargain which in itself is not illegal or immoral, be set aside, when made, except upon proof of fraud or mistake of fact amounting-to at least a partial failure of consideration. There is no-pretense that any such element exists in this case, nor has-it been claimed that the directors of the Western Union Co. have any personal interest which conflicts with a proper and faithful discharge of their duties towards the stockholders.

Moreover, the defendants insist, and by affidavits have-shown that the lines of the Mutual Union Co. were ¡ needed for the more convenient and proper despatch of the business of the Western Union Co.; that they were leased upon the best terms attainable, and that they may be reasonably expected to yield a profit. These are matters which can be determined only by the directors and a certain proportion of the stockholders of the Western Union Co. in the manner prescribed by law, and if they were so determined the law has been satisfied and individual stockholders who are dissatisfied, must submit.

The only remaining question, therefore, is whether the forms of law have been complied with.

The act of 1870 herein before referred to expressly provides that no purchase, sale, lease or conveyance by any telegraph company of this state authorized by said act, “ shall be valid until it shall have been ratified and approved by a three-fifths vote of its board of directors or trustees, and also by the consent thereto in writing, or by vote, at a general meeting, duly called for the purpose, of three-fifths in interest of the stockholders in such company, present or represented by proxy, at such meeting.”

That the lease was duly ratified and approved by a three-fifths vote of the board of directors of the Western Union Co. fully appears. Furthermore the defendants allege in their affidavits that three-fifths in interest of the stockholders consented thereto in writing. This the plaintiff claims was not a sufficient compliance with the Statute, inasmuch as the said consent was not given at a general meeting called for the purpose. This is a new point which was not involved in any of the preceding cases.

There can be no doubt that the grammatical construction of the last clause of the act of 1870 supports plaintiff’s claim, and this is so whether regard be, or be not, had to punctuation. In the quotation made by me above, the punctuation strictly corresponds with that of the original act on file in the office of the secretary of state. By that construction the alternative of writing or voting their assent is given to the stockholders, but that alternative is only to be exercised at a general meeting duly called for the purpose. No other construction than this can be given to it without a highly questionable transposition of words.

Now it may be, and on the part of the defendants it has been, argued with great plausibility, that the legislature must have meant to make the assent in writing equivalent to a vote at a meeting, because the deliberation with which a stockholder would sign the written instrument, no matter where, may well be deemed equivalent, if not superior, to that with which he would cast his vote at a meeting.

If it could be clearly ascertained that such was the intention of the legislature,' effect should be given to it. in spite of the language used, for according to the rules applicable to the interpretation of statutes the intention clearly dedncible prevails over the literal sense of the words used. But the same rules also demand that, in order to get at the intention, recourse must first be had to the words used. The intention of an act is not to be presumed, but is to be gathered from its language, and if that can be done, the policy of the enactment is not to be. regarded. And all the words are to be construed together, and effect is to be given to every one of them, if it can be done without reaching absurd conclusions. It matters not what the consequences may be. A court is not at liberty to.speculate on the intention of the legislature when the words are clear, or to construe an act according to its own notions of what ought to have been enacted. To give it a construction contrary to, or different from, that which the words import, is not to interpret law, but to make it.

In view of these rules which are well settled, the fallacy of the argument advanced by the defendants, however plausible it may appear from the start, becomes apparent, fo'r it is impossible to ascertain from the act as a whole, the intent contended for. On the contrary, it appears that, if in point of fact the legislature did so intend, it not . only failed to give proper expression to it, but also employed language which leads to a different conclusion. Moreover, the grammatical construction leads to no absurd conclusions and may even be supported by substantial reasons.

It is a fundamental principle in the general law of corporations, in the absence of any specific enactment to the contrary in the charter, that all business requiring the assent of-stockholders must be transacted at a duly convened meeting of those constituting the body corporate, and the only legal concurrence of stockholders in measures upon which they are called upon to act, is to be expressed at such meeting, after full opportunity of discussion and debate, and full permission to those opposed to any measure favored by a majority, to attempt by persuasion to reverse the prevailing sentiment. As is said by Mr. Brice : “'More than this, they (the minority) can demand a fair hearing, and that their wishes and arguments should be listened to and duly weighed” (Green's Brice, p. 71). This being the general rule, and one of the most valuable privileges of the members of a corporation, it will never be assumed that the legislature intended to abolish the right except under stress of a clear and imperative enactment to that effect.

The terms and conditions upon which assent should be given to a scheme like the one under consideration, are pre-eminently matters for discussion and consideration by the stockholders at a general meeting duly called for that purpose, and such a meeting the statute contemplates.

The importance of the statutory requirement in the present case becomes still more apparent when the following circumstances are considered: The defendants say that three-fifths in interest of all the stockholders of the Western Union Co. on being privately appliéd to, consented in writing to the consummation of the lease. But they furnish no list and disclose no names. Now it so happens that for a considerable time prior thereto the transfer books were kept closed, but that nevertheless during that period transfers of vast numbers of shares of stock took place daily in Wall Street. This raises a necessity for scrutiny. It becomes important to be seen whether the alleged stockholders who signed the consent, were at the time actual bona fide stockholders. The most suitable occasion to determine in the first instance who is, or is not, such a stockholder, is a meeting duly convened for the purpose on notice to all.

My first conclusion, therefore, is that the true interpretation of the statute corresponds with its grammatical construction, that the failure of the Western Union Co. to obtain the consent of the requisite number of its stockholders at a general meeting duly called for that purpose, constitutes a defect, but the only defect, in the proceedings taken for the acquirement of the lines of the Mutual Union Co. ; and that in consequence thereof the plaintiff, as an aggrieved stockholder in the Western Union Co., is entitled to have the injunction against the consummation of the lease and the payment of the consideration, or any part thereof, continued during the pendency of the action. Leave, however, should expressly be granted to the defendant, the Western Union Co., to convene a general meetring of its stockholders for the purpose of procuring the consent to the lease of the requisite number of stockholders in the manner required by the statute, and, in the event that such consent should be duly obtained, the order should further provide that thereupon, on due proof of such fact, any of the defendants may at any time thereafter apply for the dissolution of the injunction.

Let an order to the foregoing effect be presented for settlement on notice.


source: Caselaw Access Project

author: Truax, J.

license: Public Domain

text:
    SUSAN EGAN v. JOSEPH LYNCH.

      Contempt.—Per fairy, in justification of sureties on undertaking.

    Where on an examination of the sureties to an undertaking given on the arrest of defendant, it appears that such sureties were entirely irresponsible, and knew themselves to be so at the time they justified, they will be held guilty of a-contempt of court.
    (Though they may thereafter be indicted for perjury, the court has power to attack and summarily punish them for their offense against its dignity, by imposing'a fine sufficient to indemnify plaintiff for the loss he has suffered, and by imprisonment for six months.and until the fine is paid.. ^

      If they are indicted for perjury, the court trying the indictment will in passing sentence, take into account the previous punishment.
    :Such a commitment is not in violation of Art. I, § 2 of the State Constitution, nor of Art V. Amendments TJ. S. Constitution.
    Before Truax, J., at Special Term.

      Decided April 16, 1883.
    Motion to commit sureties on undertaking, for contempt.
    Susan Egan sued Joseph Lynch, in the superior court, ■claiming$25,000damages foralleged breach of promiseof marriage. Lynch was arrested and held in $10,000 bail, Daniel Peixotto and Horatio M. Sadler being sureties upon the undertaking on which the order of arrest was granted. The ■court afterwards reduced the bail to $250, and an order was granted requiring P. W. Simonson, the plaintiff’s attorney, to show whether he was an attorney and counselor at law, and requiring the sureties to appear and be examined as to their pecuniary qualifications. When the case was subsequently called for trial there was no appearance for the plaintiff, and the complaint was dismissed, with an allowance of $750 to the defendant. On the examination of the sureties it appeared that they were entirely irresponsible. The sureties were fined for contempt of court in having falsely sworn to their pecuniary responsbility in the amount of the judgment recovered by the defendant and. ■directed to be imprisoned for six months and until the fine ■ was paid.

      Abraham, Kling, for the motion.

      Vanderpoel, Green & Cuming, opposed.
   Truax, J.

—The examination of the sureties shows that 'they were not worth the sum in which they justified, and. that they knew they were not worth that sum when they jnstified; that they became sureties for the purpose of enabling the attorney for the plaintiff to obtain the order of .arrest, and that their misconduct in so doing defeated ancL¡ impaired the rights and remedies of the defendant.

The defendant would not have'been arrested and held ta hail in the sum of $10,000 if Peixotto and Sadler or some one else had not acted as sureties for the plaintiff. The defendant was entitled to two responsible sureties upon the undertaking which was given upon obtaining the order sought. He lost this right by the fraudulent acts of this attorney for'the plaintiff, and the false swearing of the sureties. No plainer case of an attempt to pervert the course of justice and to impair and defeat the rights and remedies of a party cari be shown than the one now presented to this court. Perjury has always been held to be a great contempt of court (Stackhouse v. French, 1 Bing. 365).

It is true that the sureties may, and should be, indicted. for their perjury. But their indictment and conviction will'be a punishment for the offense that they have committed against the people of this state, and will not purge the contempt. Their offense against the court will still remain unpunished. That offense the court has power to punish by imposing upon them a tine sufficient to indemnify the defendant for the loss and injury he has sustained through their misconduct, and by imprisoning them for six months, and until the fine is paid (Code Civ. Proc. § 2285).

If they should happen to be indicted and convicted for their perjury, the court before which they are convicted will, in pronouncing its sentence, take into consideration the previous punishment -(Code Civ. Proc. § 2287).

It was suggested on the argument that this application could not be granted, because a commitment to prison would be a violation of that part of the constitution of this state which declares that “ the trial by jury in all cases in ■which it has been heretofore used, shall remain inviolate forever” (art. 1, sec. 2). This suggestion is untenable. Courts of justice have had the power of punishing contempt by summary proceedings from time immemorial. The process of attachment for contempt must necessarily he as ancient as the laws themselves—for laws without a ¡-competent authority to secure their .administration from disobedience and contempt would be vain and nugatory (4 Black. Com. 286). To punish for contempt was part of the common law of England when the constitution of 1777 was adopted. That constitution (art. 35) declared that the common law of England should be and continue the law of this state. The power to punish for a contempt is a branch of the common law which has been adopted and sanctioned by our State Constitution (Yates v. Lansing, 9 Johns. 416). Therefore, this is not one of the cases in which trial by jury “has been heretofore used.”

Nor is this proceeding within the prohibition of that portion of the constitution of the United States which provides that “no person shall be deprived of life, liberty, or property without due process of law.” This is a due process of law, and was recognized as such when the constitution of the United States was passed. It is not to be doubted, says Chancellor Kent, that the constitution and laws of the United States were made in reference to the existence of the common law. In many cases the language of the constitution and laws would be inexplicable without reference to the common law; and the existence of the common law is not only supposed by the constitution, but it is appealed to for the construction and interpretation of its powers (1 Kent Com. 336).

The actual loss which occurred by and through the misconduct of the sureties is the amount of the judgment which the defendant has recovered against the plaintiff, to wit, $772.52. The sureties are fined that amount. They will also be imprisoned for six months, and until the above fine is paid.


text:
    FREDERICK W. MUSER, et al., v. JULIA MILLER, et al.

      Ma/rried woman—when husband need not be joined in actions ,against her— for what tot'ts she may be arrested.

    Willful injury to property, does not mean, under § 553 Code Oiv. Pro., an injury merely to the thing itself, but also an injury to the owner’s right in and to the thing.
    A married woman may be arrested in an action for damages for willful injury to property, done by her in the management of her own separate business.
    The reason of the common law rule in regard to joinder- of the husband in actions against the wife, has ceased to exist and the rule itself has been abrogated, in cases of torts and contracts affecting the separate property of the wife, as connected with or arising from the management or control of her own business ; and the exemption of married women from ■arrest in such actions, which sprang solely from the reason of the rule, has ceased in all cases where the law in general terms allows a woman to be arrested.
    Before Freedman, J., at Special Term.

      Decided June 18, 1883.
    Motion to vacate order of arrest.
    Defendant was a married woman carrying on business as a dealer in laces, on her own account. The action was to recover $24,819, the value of certain laces, stolen from plaintiff, and alleged to have been purchased by defendant from the parties engaged in the theft, with knowledge that they were stolen. Defendant was arrested, and her husband was made a party to the action.
    Further facts appear in the opinion.

      Charles S. Spencer and James C. P. Robinson, for the motion.

      D. M. Porter and James M. Smith, opposed.
   Freedman, J.

—The plaintiffs have made, out a prima facie case against the defendant Julia Miller, which has not been overcome by the proofs adduced by her to such a degree that I can determine the merits. The testimony of James J. Madden, the thief, and- Fannie Lewis, the receiver, is corroborated in several particulars, and especially by the circumstance that some of the stolen goods have been shown beyond controversy to have been in the possession of the defendant. Her statement by affidavit that she paid a fair value for the goods she did purchase from the receiver, cannot overcome the case made against her, because from the fact that she was a dealer in laces since 1877, and a purchaser from leading merchants in Hew York and had even received goods on consignment from the plaintiffs in this action, the inference may be drawn that her statement is not true and that she knew at the time that she was getting the goods very much below their intrinsic as well as market value. Without going into particulars, it is sufficient to say that much of what the defendant shows, may be true and yet aprima facie case remains against her that she committed at least a willful injury to plaintiffs’ property within the meaning of § 553 of the Code of Civil Procedure. By the affirmance of the court of appeals (64 N. Y. 625), of Duncan v. Katen (6 Hun, 1), it is now settled that in such a case a willful injury to property does not mean an injury merely to the thing itself, but an injury to the owner’s right in and to the thing.

The case at bar, therefore, falls within that class of cases in which the rule prevails that the court will not try the merits upon affidavits. This being so, the order of arrest cannot be vacated unless the defendant’s point is well taken that, because she is a married woman, no order of arrest will lie against her under any circumstances.

At common law a married woman could not be held to bail in an action founded upon her personal tort, though the husband might be held and might be compelled to give bail for both (Grah. Pr. 127; Anonymous, 1 Duer, 613; Schaus v. Putscher, 16 Abb. Pr. 353, note). That the Code in force before the Code of Civil Procedure did not change the rule upon this point was distinctly held in Solomon v. Waas (2 Silt. 179).

The necessity for holding the husband, arose from the legal effect of the marriage relation. At common law the husband and wife by marriage became one person in law, that is, the very being, ór legal existence of the woman, was suspended during the marriage and incorporated or consolidated into that of the husband. But the necessity for such joinder was not, strictly speaking, because the husband was absolutely liable, but it grew out of the fact that a suit .could not be maintained against a wife alone during coverture (Bishop Mar. Women, § 254).

Under the statutes of this state any married woman may take and hold real, as well as personal property, separate and apart from her husband, and enjoy the same, and the rents, issues and profits thereof, in the same manner as if she were a single female ; and she has express authority to bargain, sell, assign and transfer her separate personal property, to carry on any trade or business, and perform any labor or services on her sole or separate account. The power thus conferred to carry on a trade or business includes the ability to make bargains and contracts in relation to it in almost any mode known to the law and in accordance with the practice of the commercial community, and such bargains and contracts have been held valid against her, notwithstanding her coverture, provided they were made in the course of her trade or business and as an incident to it. Upon any such bargain or contract she could, since 1860, sue and be sued in the same manner as if she were sole, and the same may be said generally concerning all matters having relation to her sole and separate property. It was held, however, that these changés by statute did not alter the common law liability of the husband for the mere personal torts of the wife, but that the rule was changed only in cases of torts committed in the management and control of her separate property (Baum v. Mullen, 47 N. Y. 579; Kowing v. Manly, 49 lb. 192). But even then the husband was held in some cases to be still a necessary party to the action.

Thus the rule as to the necessity of the joinder of the husband with the wife in a case of tort committed by the wife, remained until the enactment of the Code of Civil Procedure, section 450 of which, as originally enacted, read: ■“ In an action ... a married woman • appears, prosecutes or defends alone . . . as if she was single.” In his note Mr. Throop says, that that section was intended to sweep away all distinctions between a feme sole and a feme covert, in respect to suing and being sued; and in Janinski v. Heidelberg (21 Hun, 439), it was held by the general term of the supreme court that the language used was comprehensive enough to do it.

In 1879, section 450 was amended by adding at the end thereof the further express provision that in any action or special proceeding affecting the separate property of a married woman it is not necessary or proper to join her husband with her as a party. Since that amendment it was held in Fitzgerald v. Quann (1 Civ. Proc. [McCarty] 273), that it is now no longer necessary or proper to join the husband as a defendant in an action against the wife for her personal tort, though such tort was wholly unconnected with the wife’s separate estate or the management or control of her business, and that the reason of the rule in regard to the joinder had wholly ceased to exist. For the purpose of determining the motion before me it is not necessary to go quite so far. It is sufficient to hold that the reason of the rule in regard to the joinder has wholly ceased to exist and the rule itself has been abrogated in all cases, of torts as well as contracts, affecting the separate property of a married woman or connected with or arising from the management or control of her business. For it is conceded that the wrongful acts complained of in the case at bar were committed in the course of the defendant’s business as a dealer in laces. It follows then, that, if to the extent stated the reason of the rule has ceásed to exist, and the rule itself has been abrogated, the exemption of a married woman from an arrest which sprang solely from the reason of the rule, must cease, whenever the rule ceases, in all cases in which the law expressly authorizes the arrest of females in general terms. In looking for such authority it will be found that § 553 of the Code of Civil Procedure gives the right of arrest during the pendency of the action against any woman in an action to. recover damages for a willful injury to person, character or property.

Having already shown that the case made out against the defendant is one which falls within the class of cases specified in § 553, and it appearing that the wrongful acts charged against the defendant were committed by her in the management of her business, she is not entitled to have the order of arrest vacated, for the sole reason that she is a married woman.

From the examination so far made it appears that no ground whatever exists for the vacation of the order.

As to reducing the bail I have also failed to discover any ground upon which the defendant can be relieved. According to some of the testimony the defendant had all the goods which were stolen from the plaintiffs, and if the jury should, under all the circumstances, find such testimony worthy of belief, their verdict will be for an amount which, with interest and costs, will exceed the amount of bail .specified in the order. In view of such contingency the plaintiffs have a right to have the bail maintained as originally fixed

The only relief I can grant, is to order an immediate trial of the issues by jury on the ground of the actual imprisonment of the defendant. If she so elects, her case may be set down for trial for Wednesday of this week with a preference on the day calendar.

Motion to vacate order of arrest denied with $10 costs. Order to be settled on notice.


author: Freedman, J. Freedman, J.

text:
    MICHAEL GILMAN, as Administrator, Etc., v. HENRY McARDLE.

      Husband, and wife—right of formar to administer her estate—such right-passes to his administrator on his death.—Deposit of money for masses to be said after death.—Trusts, requisites of.

    Where G., a married woman, placed into the hands of the defendant, an undertaker, a certain sum of money with the direction and upon the-condition that the same should be used by the defendant, in the first instance, for the purpose of defraying the expenses of her funeral and of that of her husband and of the erection of a suitable monument to their memories, and, in the second place, to have masses said by a Roman Catholic priest for the repose ot their souls; and Mrs. G. thereupon died intestate and without issue; and subsequently the husband died intestate and without having taken out letters of administration upon her estate or , having reduced the money to possession; and thereafter the plaintiff, as administrator-of the estate of the husband brought an action to compel the defendant to account,

      Held, 1. That upon the death of the wife the surviving husband, at common law acquired the right to administer upon her estate for his benefit, subject only to the payment of her debts, and that this right has not been abridged by statute in the case of the death of a manied woman intestate and without issue.
    3. That by statute the husband, upon the death of the wife, became entitled to administration upon her estate in preference to any other person.
    3. That upon the death of the husband his rights passed to his legal representative, and the plaintiff, as tiie administrator of the husband’s estate, in bis representative capacity as such, might have had letters of admin is- . tration upon the estate of the wife, but such letters were not necessary to enable him to maintain the action.
    4. That the disposition made by Mrs. G. of her money, even if otherwise effectual, would, in so far as it relates in the saying of masses, be void according to the law of England as made for a superstitious use, but that this doctrine cannot prevail in the courts of the United States or of the several states thereof because it is contrary to the spirit of the constitutional provisions prohibiting discrimination on religious grounds.
    5. That the disposition of the money constituted neither a gift inter vivos nor a gift causa mortis, because there was no intention of parting with the title. .
    6. That, though Mrs. G. may have sought to create a trust for the uses specified, and though a trust relating solely to personal property may be created by parol, the disposition made of the money was not a trust which the law can recognize because no title passed, and, because, after the deaths of Mr. and Mrs. G., there was no longer any person in existence or capable of coming into existence who as beneficiary could call the trustee to account if the latter should refuse to execute the trust. The souls of Mr. and Mrs. G. cannot in law or equity be treated as beneficiaries.
    7. That, no title having passed by either a bequest or gift or legal trust, the disposition of the money amounted to a naked deposit into the hands of an agent with certain instructions. In such a case it is a fundamental principle of the law of this state that the principal may at any time revoke the instructions and recover his property, and that if he does not do so in his lifetime and dies intestate, his death revokes the authority of the agent, and that as the title must go somewhere, it goes to the administrator of the intestate.
    8. That the plaintiff is entitled to judgment directing the defendant to account and pay over; but upon the accounting the defendant is entitled ■ to protection for all acts done by him in good faith pursuant to the instructions received from Mrs. G. up to the time the plaintiff demanded the money.
    Before Freedman, J., at Special Term.

      Decided July 2, 1883.
    Trial of equitable action.

      John Brice, attorney, and William L. Snyder, of counsel, for the plaintiff.

      C. W. Bennett, attorney, and Richard L. Sweezy, of counsel, for the defendant.
   Freedman, J.

—This is an equitable action brought by Michael Gilman, as administrator of the estate of James Gilman, deceased, and its object is to have a certain trust declared null and void and to compel the defendant as the alleged trustee to account..

On August 23, 1882, Margaret Gilman, then about eighty-five years old, placed about $2,300 of money belonging to her into the hands of the defendant, with the direction and upon the condition that after the death of herself and her husband, who was then over ninety years of age, the defendant should use the money, in the first place, to pay funeral expenses and erect a suitable monument to. their memories, and in the second place, to have masses said by a B ornan Catholic priest for the repose of their souls. About eight days after the delivery of the money to the defendant, viz: September 1,1883, Margaret Gilman died intestate and without issue, and on October 13, following, James Gilman, the husband, also died intestate. The plaintiff as next of kin of James Gilman, took out letters of administration on the estate of James Gilman, and as such administrator demanded that the defendant account for and pay over the money received by him, and upon defendant’s refusal to do so brought this action. The theory of the action is that at least the second use or purpose of the trust is contrary to public policy and wholly illegal and void.'

The first question that presents itself, is whether the plaintiff has legal capacity to maintain the action. Its determination depends upon the correct solution of the further question whether the right of James Gilman to administer upon the estate of his deceased wife, conferred, upon the plaintiff as his legal representative the capacity to sue for a chose in action belonging to the wife at the time of her death, and not reduced to possession by the surviving husband in his lifetime.

At common law marriage was an absolute gift to the husband of the personal property of which the wife was actually possessed, and of such as came to her during coverture. As to choses in action, marriage was only a qualified gift, conditioned that the husband, reduce them to possession during the existence of the marriage relation. As to all personal property possessed by the wife at the time of the marriage and such as came to her during coverture, and also such choses in action as the husband reduced to possession during coverture, the title was vested in the husband, and upon his death such personal property and choses in action went to his representatives, and not to the wife ; and if the wife died first, they were his after, as they were before her death, and no administration was necessary. As to choses in action not reduced to possession during marriage, if the wife survived the husband, they went to her ; and upon her death, to her representatives; but if the husband survived he had the sole right to administer for his own benefit and enjoyment in preference to the next of kin.

These common law lights- to the husband, and the consequences flowing from .them, are still recognized in this-state in the case of a wife dying intestate leaving no-descendants and a husband surviving.

The statutes of this state give to the wife the control of her separate estate during her life and she may dispose of it by will. In case of a will the testamentary disposition stands. In the absence of a will, if there are descendants,, the succession is regulated by the statute of distribution. But in case a married woman dies intestate and leaves no-descendants, the common law right of the surviving husband to administer his deceased wife’s estate, and through such administration to acquire the title to her'personal property and dioses in action not reduced to possession during coverture, subject only to the payment of her debts, still exists. This has been expressly decided in Barnes v. Underwood (47 N. Y. 351). And in all cases, it is now provided by statute that in the case of a married, woman dying intestate, her husband shall be entitled to administration in preference to any other person (3 R. S. 6th Ed. 78, § 31, formerly § 27); that if he shall not take out letters of administration on her estate, he shall be presumed to have assets in his hands sufficient to satisfy her debts, and shall be liable therefor ; and that, if he shall die, leaving any assets of his wdfe unadministered, they shall pass to his executors or administrators as part- of his personal estate, but shall be liable for her debts to her creditors, in preference to the creditors of the husband (ld. § 33, formerly § 29).

From the foregoing it is clear that if, upon the death of Margaret Gilman, her husband, James Gilman, had taken out- letters of administration upon her estate, his right of action against the defendant now here, would, upon his death, have passed-to the present plaintiff as administrator. But as James Gilman did not do so, it is necessary to determine whether that omission affects the standing of the plaintiff in court. From what has been said in Squib v. Wyn (1 Peere Wms. 378); Elliot v. Collier (1 Wils. 169), and 2 Kent’s Com. 136, it would seem that it is not. At any rate, my judgment is that under the true construction of what formerly was the twenty-ninth section of the statute above referred to, it is not; because, above the conflict of judicial expression in the books as to whether the husband in a case like the present upon the death of his wife takes a chose in action not reduced to possession by him during coverture, as husband or as administrator, there stands forth the universally conceded fact that, in some way or other, he is entitled to the ultimate benefit to be derived therefrom because he sustains the relation of husband. . From this it follows as a logical and necessary sequence, that his right in this respect at least, by force of the statute, passes to his personal representatives. That in a case like the present the administrator or executor of the estate of the husband, in his representative capacity as such, may have letters of administration upon the estate of the wife, was decided in Matter of Harvey (3 Redf. 214), affirmed by the general term of the supreme court ; but that such letters are not necessary to enable him to maintain an action, was also decided in Roosevelt v. Ellithorp (10 Paige, 415), and Lockwood v. Stockholm (11 ld. 87).

Whether, therefore, the fund in suit be regarded, for the purposes of determining the question of plaintiff’s capacity to sue, as a chose in action, or as property legally in the wife’s possession at the time of her death (upon the theory that the possession by the defendant as the wife’s trustee or agent under a void trust was not adverse, but in the eye of the law was still her possession), the plaintiff, in either case, has legal capacity to sue for it. •

This brings me to the consideration of the second question, viz : the validity or invalidity in law of the disposition of the money made by Margaret Gilman. Such disposition constituted neither a gift inter vivos, nor a gift causa mortis, for the requisites of a gift were wanting. There was no intention of parting absolutely with the title and control, but specific uses were enumerated, to which, after the death of Mrs. Gilman and her husband, the money was to be appropriated. By such a disposition Mrs. Gilman sought to create a trust for the uses specified. In so far as the trust thus attempted to be created has been executed by the payment of funeral expenses and the erection of monuments, the plaintiff does not seek to hold the defendant liable. The controversy relates to that part of it which directs the saying of masses, and the discussion will hereafter be confined to that point.

In England this use would be held void as a superstitious one. In that country, when land is given, secured or appointed for or toward the maintenance of a priest or chaplain to say mass ; for the maintenance of a priest, or other man, to pray for the soul of any dead man ; to have and maintain perpetual obits, lamps, torches, etc., to be used at certain times to help to save the souls of men out of purgatory ; the king or queen, by force of certain statutes, is authorized to direct and appoint all such uses to such purposes as are truly charitable (23 Hen. VIII., ch. 10; 1 Edw. VI., ch. 14; Bac. Ab. Charitable Uses and Mortmain, D.; Duke on Char. Uses, 105). These statutes were aimed at such usages of the Roman Church as were condemned by the Protestant Reformation. There is no express. English statute, however, making superstitious uses, in general, void, and the 23 Hen. VIII., relates in terms only to assurances of land to churches and chapels. But although there is no present English statute rendering the disposition of personal property, or all dispositions of personal property, for superstitious uses, void, the courts of England have, nevertheless, in all such dispositions of property, whether real or personal, held the uses to be void upon general principles of public policy.

In the state of Hew York, and in all the states of the United States, where there is no established state religion, where all'religious opinions are free and the right to exercise them is secured to the people by constitutional guarantees, there is no such statute and no such policy, and I do not hesitate to say that the doctrine of superstitious uses as enforced by the courts of England is against the spirit of our institutions and should not be adopted by our courts. It is a fundamental principle of our law that a man may do with his own as he pleases, provided he does not violate the law nor devote his property to an immoral purpose. Similar views have been expressed by Judge Tuley, of Chicago, in Kehoe v. Kehoe, and by the surrogate of Kings county, N. Y., in the matter of the probate, etc., of the will of Maria Hagenmeyer, deceased. In these two cases, however, the question presented itself upon a testamentary disposition.

The question of policy having been disposed of, in so far as it rests upon religious grounds, it remains to be seen whether the trust sought to be created is invalid, for any reason known to law or equity as administered in this country. It clearly cannot be upheld as a trust for a charitable use. According to the English law, based upon certaip prerogatives of the crown and the statute of 43 Elizabeth, ch. 4, the court of chancery, in England, exercised a certain peculiar jurisdiction over charitable trusts, in determining and applying gifts to charity, where the donor had failed to define them, and in framing schemes of approximation near to or remote from the donor’s true design. Where, therefore, there was a gift for a general and indefinite charitable purpose, either the king, under his sign manual, or the court representing him, disposed of the subject donated. The statute of Elizabeth was repealed by the legislature of this state in 1788, and the prerogative of the Crown had, of course, no effect in this state ; but the powers and jurisdiction of the English court of chancery, as they existed in England at the time of the American revolution, were supposed to have followed and remained with courts of equity in this state, and the law of charities, it was claimed, independent of the statute of Elizabeth, was in force, prior to that statute, and continued after its abolition. In the consideration of this subject by the courts of this country, it was, however, determined that the English doctrine with respect to charitable trusts, as it existed at the time of the revolution, according to the common law, irrespective of statutory enactment, was only to be considered in forcé here so far as it was applicable to our circumstances and conformable to our institutions, and not repugnant to them. With this determination the power exercised by the English court of chancery to declare a trust void on the ground that it was for a superstitious use, and to direct the use to a purpose, truly charitable, wholly ceased to exist in this country.

But a charity must still be a gift, (1) either for the promotion of science or learning or useful knowledge ; (2) or for the relief of the sick, lame or infirm ; (3) or for the relief of the poor, or the relief or redemption of prisoners or captives ; (4) or for the building or repairing of bridges, ports, highways, churches or other public structures. In short, a charity is a gift for a general public use, extending to the poor as well as to the rich, which is free from any personal, private or selfish taint. The disposition made by Mrs. Gil-man of her money cannot be brought within this definition. Hor can it be said that such disposition created a trust for a pious use. Such a trust consists of a gift for the dissemination of moral or religious teaching or for the promotion of public worship or morality. All gifts falling within this description are regarded as pious uses, and by a broad and liberal construction are enforceable as such in equity. Since the Revolution pious uses have been upheld in this country without regard to sect or denominational distinction. The disposition made by Mrs. Gilman does not fall within this class of uses.

On the other hand it will be found, that the trust purpose of the trust sought to be established by Mrs. Gilman, is open to no legal objection, because the trust, if it is one, relates solely to personal property, and as such is not within the Statute oí Uses and Trusts of this State. A trust of personal estate may be created for any purpose which is not illegal, so far as relates to the mere vesting of the legal title to the property in the trustee (Gott v. Cook, 7 Paige, 521; Bucklin v. Bucklin, 1 Keyes, 141; Perry v. Foster, 62 How. 228.)

So if the trust were otherwise valid, it would not be a fatal objection that it was not declared in writing (Martin v. Funk, 75 N. Y. 134.)

But the difficulty with the defendant’s case is that the trust sought to be created by Mrs. Gilman, is no trust at all known to law or equity, because there is no beneficiary or cestui que trust in existence, or capable of coming into •existence, under the trust, and that, if for the reason stated, the trust fails, the disposition made of the money cannot stand, because it amounted neither to a gift nor to a disposition by last will and testament. Our statutes prescribe how the personal property of a person dying intestate, shall be distributed. They disclose a well defined policy upon that point. They apply to personal property and choses in action of every description not actually and finally disposed of by the intestate in his lifetime in some mode recognized by the law, and they permit no other disposition. Consequently, as there was no will nor a gift, unless a valid trust was created amounting to an actual and final disposition of the'money in suit, the law steps in and directs where the money shall go.

Now, as essential to the validity of every trust, there must be four things : (1) A subject matter; (2) A person competent to create it; (3) One capable of holding as a trustee ; and (4) One for whose benefit the trust is held. In the present case the first three exist, but the fourth does not. The trustee might be supplied if necessary, for it is a well settled principle in equity that a trust once properly created, shall never fail for want of a trustee, and that the court can always appoint a person to execute it. But the court cannot supply a beneficiary or cestui que trust. Beneficiaries may be natural or artificial persons, but they must be persons in existence or capable of coming into existence under the trust. If they answer that requirement and can be ascertained and identified, it is not necessary that they should be named specifically. In general, any person who is capable in law o£ taking any interest in property, may, to the extent of his legal capacity, and no further, become entitled to the benefit of the trust. In the case at bar the beneficiaries are both dead and beyond the reach of human law. Their souls are intended as beneficiaries and the money is tobe expended for masses for the repose of their souls. But the soul of one who has departed this life, is incapable of taking an interest in the property left behind, nor is it in any sense subject to the jurisdiction of any legal tribunal. A court of equity protects the rights of the living. It cannot extend its jurisdiction to beings which cannot be apprehended within the boundaries of the realm.

For. the reason stated the trust sought to be created failed for want of a beneficiary. That being so, and there having been neither a gift nor a testamentary disposition, a resulting trust,arises by implication of law, under the circumstances of this case, in favor of the plaintiff, as the legal representative of the husband of the donor, against the defendant, and the defendant must account.

The plaintiff is entitled to judgment declaring the invalidity.of the trust and adjudging the defendant liable to account for all moneys still in his hands. As to all payments made by the defendant in good faith, he is entitled to claim protection.

Upon the question of costs counsel may be heard at the time of the settlement of the findings.

A motion was thereupon made for the settlement of findings, an allowance of costs, and for interlocutory judgment. In passing upon these questions the following further opinion was filed.

Freedman, J.

—To correct misapprehension as to the scope of the opinion heretofore filed by me in this case, and to prevent misunderstanding hereafter, I re-state the position taken by me.

In entering upon the discussion of the questions relating to the validity of the disposition made by Mrs. Gilman of her money, I commenced by pointing out that according to the law of England every disposition of property, real and personal, for the purpose of having masses said, etc., though in form the title is passed, is held void by the courts of that country; namely, a disposition of real property by force of certain statutes directed against so called superstitious uses, and a disposition of personal property upon general principles of public policy enforced by the courts.

I then held that in the United States there is no such statute or policy, and that such a policy should not be adopted by the courts.

If, therefore, Mrs. Gilman" had made a will and bequeathed her money to her executor for the purpose of having masses said for the repose of her soul or that of her husband or both, or to a particular church or priest for such purpose, I "would certainly have upheld the bequest, because under the testamentary disposition the title would have passed. So if in her lifetime she had given the money absolutely to a particular church or priest with the request to have masses said, I should not have hesitated to uphold the gift, because the title would have passed. So if she had given the money to the defendant in this action in such a way that the title passed to him unconditionally and beyond recall, and merely requested him to have masses said, but left it to him whether he would do it or not, I would still have upheld the gift. But she did none of these things. She attempted to create a trust by parol instructions, and a bare delivery pursuant to such instructions, and yet retain the title to the money. The defendant, who is an undertaker, was to have no interest or benefit in it.

In discussing this supposed trust and noticing the points of counsel made in this connection, I showed that, though it was not a trust for a charitable use, nor a trust for a pious use, within the meaning of these terms as known to the law of trusts, the purpose of the trust,—viz., to have masses said, was nevertheless open to no legal objection, ,—but that" the difficulty was that th esupposed trust was no trust at all which the law can recognize, because there was no longer any person in existence or capable of coming info existence under the trust that could call the alleged trustee to an account in a legal tribunal, if he should refuse to execute the trust and convert the money to his own use. I should have added here as an additional reason why it was no trust at all, that there had been no gift or other disposition by which the title passed, for every trust must be founded upon such a gift or disposition. But as I had previously disposed of that question, I supposed the reiteration was unnecessary.

It therefore will be seen that the case really came down to this: No title passed by either a bequest or gift or legal trust. There was only a mere naked deposit of money into the hands of an agent with certain instructions concerning the employment and payment from time to time of a third person, namely, a Catholic priest, for services to be'rendered. In such a case it is a fundamental principle of the law of this state that the principal may at any .time revoke the instructions and recover his property, and that, if he does not do so in his lifetime and dies intestate, his death revokes the authority of the agent, and that, as the title must go somewhere, it goes to the administrator of the intestate. In such a case the character of the instructions is wholly immaterial. Prom the moment the administrator objects, the agent must cease "paying out. He can no more pay for the erection of monuments than he can pay for having masses said. But up to that time he will be protected for acts done in good faith.

Thus it will be seen that if, instead of calling for the saying of masses, the instructions of Mrs. Gilman had been that the defendant, as her agent, should from time to time, employ and pay a suitable person to hoist the American flag on the 4th day of July in each and every year over the house in which she died, I would have been bound to ren der precisely the same decision which I did render.

The findings submitted are settled in strict conformity with these views and the interlocutory judgment to be entered must also correspond therewith. As to all acts done by the defendant in good faith before the administrator demanded the money, he must be protected. But all questions arising in this connection should be determined upon the accounting.

As to costs, I can only decide at present that none are to be awarded against the defendant personally. Under the circumstances of the case, not only was he almost under a moral obligation to have his rights passed upon by á court of competent jurisdiction, but the question of plaintiffs legal capacity to sue was also a very complicated question. For these reasons, I deem it a wise exercise of the discretion vested in me not to inflict costs upon him. All other questions pertaining to costs to be paid out of the fund should stand over without prejudice until the coming in of the report upon the accounting.

In conclusion I wish to state yet that in consequence of the imperfect newspaper report which I had of the case before Judge Tuley, I referred to that case as one arising • under a will. I have since ascertained, though I have not been able to procure an authentic report, that it was a case of conveyance by deed absolute upon its face which passed the title as effectually as a will would have done.


author: Horace Russell, J.,

text:
    WILLIAM ZORNTLEIN, Respondent v. GEORGE A. BRAM, et al., Appellants

      Estates—tenancy by entirety does not exist.—Partition—finding that parties are tenants in common, a sufficient finding that plaintiff was in actual or constructive possesson.

    Before Sedgwick, Ch. J., Freedman and Russell, JJ.

      Decided December 30, 1882.
    ' Appeal by defendants from a judgment directing sale of certain real estate, as asked by the complaint and that proceeds be divided, an actual partition being impossible.
    The plaintiff claimed to be owner of an undivided half of the property and tenant in common with the defendants who were owners of the other undivided half as was alleged by the complaint. The plaintiff derived title by a deed of conveyance made by Babeta Bram on September 28, 1881. Babeta Bram was then the wife of Jacob Bram. Babeta Bram derived title from a deed of conveyance made on April 24, 1878, to the said Jacob Bram and Babeta his wife. On September 30, 1881, Jacob Bram and Babeta Bram, joined in a deed of conveyance of the whole of the premises to the defendant.
    The court directed judgment of sale and division of proceeds. The defendant appealed, claiming that Jacob Bram and his wife were tenants in entirety, with right of survivorship.
    The court at General Term said : “ In the light of the reasoning of the opinion of Judge Daheoeth in Meeker v. Wright (76 JV. Y. 262), the court below was correct in its judgment on this question. It should be passed on by the court of appeals.”

    It was asserted that there was no finding of the fact that the plaintiff was in actual or constructive possession.
    The court at General Term, said : “That is sufficiently found, by the first finding, which is that the parties to the action are tenants in common.”

      I. A. Englehart and A. J. Dittenhoefer, for appellant.

      H. M. Gescheidt, for respondent.

       That tenancy by the entirety still exists, see Bertles v. Nunan, 92 N. Y. 152; and Freel v. Buckly, Id. 634.

   Opinion by Sedgwick, Ch. J.; Freedman, J., concurred.

Judgment affirmed, with costs.

Horace Russell, J.,

wrote as follows: “I agree that the questions in this case ought to be passed on by the court of appeals. But in view of the facts that that part of Judge D atteobth’s opinion in Meeker v. Wright, which takes the ground that the married woman’s act of 1862, has in effect overthrown the doctrine, that when real estate is conveyed to husband and wife they take as tenants of the entirety with the right of survivorship, etc., was not concurred in by a majority of the court, I do nob think it a sufficient authority for a decision at variance with all the previous (and indeed subsequent) decisions of this state, and of other states having a similar statute.”


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    SARAH H. HAZEWELL, Appellant, v. GERSHON H. COURSEN, Respondent.

      Judge's charge—that plaintiff must maintain his case by “ uncontradicted evidence "—when not deemed error■—when specific objection to must be made.

    Before Sedgwick, Ch. J., Freedman and Russell, JJ.

      Decided December 30, 1882.
    Appeal by plaintiff from judgment dismissing complaint with costs entered upon a verdict, in favor of defendant, and also from an order denying her motion, upon the minutes for a new trial.
    Action to recover damages for the alleged conversion by the defendant of a contract for the sale and purchase of lands. The trial judge charged that “ the burden of proving the plaintiff’s case rests upon the plaintiff and she must establish that fact, by a preponderance of uncontradicted evidence,” to which plaintiff excepted generally.
    The court at General Term said, “ To sustain the exception, we must suppose that the judge conveyed the notion that if the case for the plaintiff were opposed by oral testimony or by circumstances or inferences, that the plaintiff could not in any event recover. This ground could not be taken, without it also being true, that the defendant’s case should not be sustained by the jury, if it were opposed in like manner. The result would be, that the judge would be of the opinion that neither party was entitled to a verdict on the merits of the respective cases, for certainly each was contradicted, in a narrow sense by the other. It is impossible to imagine that the counsel or jury took this to be the judge’s meaning or opinion.
    “ On the whole, it seems to me that it is a case where the general purport of the charge was correct and that inadvertently a phrase was used in a peculiar way.. A general exception was therefore not valid and did not call the attention of the court to the very point that is now taken. On such a point to make a valid exception, it should be necessary to state it specifically to the court.”

      Luther R. Marsh, for appellant.

      John E. Burrill, for respondent.
   Opinion by Sedgwick, Ch. J.; Freedman and Russell, JJ., concurred.

Judgment affirmed with costs and order appealed from affirmed, with $10 costs.


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    ANDERSON FOWLER, Respondent, v. JOEL O. STEVENS, Appellant.
    Lease.— Warranty that premises are habitable, when not to be deemed warranty that they will so continue.

    Before Freedman and Russell, JJ.

      Decided December 30, 1882.
    Exceptions ordered to be heard in the first instance at. the General Term, upon the direction of a verdict for the plaintiff.
    The action was for the recovery of rent, the answer alleged breach of the plaintiff’s warranty that the premises should be fit for habitation as a tenement for the defendant and his family; and counter-claimed for moneys alleged to have been expended by reason of sickness to the defendant and his family, incurred from the uninhabitable condition of the house. The defendant testified that in the spring of 1875, before he leased the house, he inquired of the plaintiff about it, and that the plaintiff said “it was a new house in perfect order and in every way in a habitable condition and that relying upon that statement he took it. The defendant’s evidence tended to show that in the latter part of the summer, he having gone into occupation of the house on the 1st of May, 1875, foul smells became very perceptible, and his wife was taken very ill, and that whenever there was a rain storm of any duration, the water would rise within three or four feet of the furnace with the register almost red hot, and that the walls of the rooms of the house were dripping with water. By another witness he showed that this house was built- upon made ground where there had formerly been a pond. A physician testified that the defendant’s illness and that of his wife, was •due to their living in this house.
    The court at General Term said, “The general proposition that the parol statement by the plaintiff or his agent that the house was ‘a new one in perfect order and in every way in a habitable condition’ amounted to a warranty, or -enough to permit a jury to find a warranty, may be conceded without disturbing the judgment in this case. It cannot be claimed that the warranty extended beyond the •condition of the house at the time of letting. It was not a warranty, as claimed in the complaint, that the house would continue habitable. All the evidence as to the uninhabitable condition of the house relates to a period long subsequent to the letting. Granting that the house was ■erected upon made land where a pond had formerly been, it does not appear that that fact, or any other, made it uninhabitable at the time the defendant went into possession. Nor does it appear with clearness that that fact can be .assigned as the reason why rlie premises became uninhabitable afterwards. That is to -say, the evidence does not exclude other causes for the effects shown. We are, therefore, of opinion that the defense and counter-claim was not sustained by the evidence and was properly dismissed.”

      A Kling, for appellants.

      W. F. McRae, for respondent.
   Opinion by Russell, J.; Freedman, J., concurred.

Exceptions overruled, judgment affirmed, with costs.


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    GEORGE W. VENABLE, Appellant, v. THE N. Y. BOWERY FIRE INSURANCE Co., Respondent.

      Interpleader—motions for depend upon same principles as actions for.— Attachment creditor not in position to attach title of assignee of his debtor to chose in action.

    Before Sedgwick, Ch. J., and Russell, J.

      Decided December 30, 1882.
    Appeal from an order granting an application made by the defendant to substitute one Schlessinger an attaching creditor in its place and discharge it from liability, upon payment into court of the sum claimed in the complaint.
    The action was brought to recover on a policy of insurance, covering furniture, &c., . in a house at Saratoga Springs, issued by the defendant to one Gustav B. Salfield. The loss occurred April 22, 1882. The policy of insurance, was assigned by the insured to Olga Salfield April 27, 1882. An order of attachment in a suit by Schlessinger against Gustav B. Salfield, was served on the defendant’s agent April 28 or 29,1882. Judgment in that action for $1,680.94-was recovered and docketed in Saratoga county on July 20, 1882. Olga Salfield assigned the policy of insurance to the plaintiffs on May 17, 1882, and on May 18, Gustav B. Salfield assigned to the plaintiff all causes of action and rights of action and all money due and to grow due on the policy.” This action was begun September 16, 1882. Before the time for answering expired, and on October 3, the defendant made this motion of interpleader. The motion was granted and the money has been paid into court.
    The court at General Term said : “ It is well established that motions for interpleader depend upon the same principles as actions of interpleader, and that where an action of interpleader could not be maintained an order ought not tobe made. "An attachment creditor is not in position to assail, in any form of action the title of an assignee of his debtor to choses in action. Only an execution creditor can do that. If any doubt remained in regard to this doctrine after its announcement in Thurber v. Blanck (50 JY. Y. 80), arising from the fact that the commission of appeals had at about the same time, reached a contrary conclusion (The Mechanics’ and Traders’ Bank v. Dakin, 51JY. Y. 519), that doubt has been set at rest by the decision in 8 Hun, 431, affirming a dismissal of the complaint in Mechanics’ Bank v. Dakin, on the ground that the decision of the court of appeals was controlling ; and by the re-affirmance of the doctrine of Thurber v. Blanck, in Castle v. Lewis (78 JY. Y. 131). These cases were not called to the attention of the learned judge who made the order appealed from.”

      A. R. Dyett, for appellant.

      M. S. Thompson, for respondent.

      J. Ullman, for Schlessinger.
   Opinion by Russell, J.; Sedgwick, Ch. J., concurred.

Order reversed, with costs.


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    THE NATIONAL ICE COMPANY, Appellant, v. WILLIAM I. PRESTON, Respondent.

      Agreement between A. and B. to supply B. malt to be manufactured into beer for A. ’s benefit, A’, to be paid with moneys realized from sales of beer; agreement accompanied by chattel mortgage on B.'s property; does not constitute agency as to third parties, e. g., persons who supplied ice to B. for use in business.—When such agreement not fraudulent, though chattel mortgage be not fled.

    Before Sedgwick, Ch. J., Arnoux, J.

      Decided December 30, 1882.
    Appeal from judgment discussing plaintiff’s complaint.
    Action to recover the value of certain ice sold and delivered by plaintiff to one Newman. Defendant and Newman had entered into a contract by which defendant supplied Newman with malt which he was to manufacture into beer and sell for defendant’s account and pay defendant from the moneys so realized for the materials furnished. Newman executed and delivered a chattel mortgage upon all his personal property to secure defendant. This mortgage was not filed until after plaintiff’s claim had accrued. Plaintiff claimed to recover herein against defendant as undisclosed principal, and as having conspired to cheat and defraud plaintiff.
    The court at General Term said: “It is perfectly well settled by numerous decisions that a contract of the character set forth in the complaint and above mentioned, does not establish the relation of principal and agent, as to third parties, or entitle a creditor of the manufacturer to make any claim against the owner of the supplies (Mallory -y. Willis, 4 N. Y. 76; Foster v. Pettibone, 7 Id. 133; Wood v. Orser, 25 Id. 348).”
    “If the complaint is viewed as stating a cause of action for fraud, the plaintiff has not succeeded in establishing a case. Fraud can never be presumed. It must be proven. There was no duty upon Newman to disclose his circumstances. If the plaintiff trusted him without inquiry it was at their own peril.
    “Nor was there any obligation on the defendants part as to plaintiff to file his chattel mortgage. Our statutes fix his liability for such neglect, and he took the risk that they impose. The complaint alleges that there was a fraudulent purpose to give Newman a fictitious credit and in pursuance thereof he purposely did not file his mortgage. In preparing this pleading the learned counsel for plaintiff recognized that the failure to record was not the fraud, but the agreement out of which this failure sprung he claims was a fraud.
    “ In this he is supported by authority, but the difficulty in his case is that he has failed to establish any such agreement.

      Blumenstiel & Hirsch, and A. J. Requier, for appellant.

      B. F. Tracy and Henry Brodhead, for respondent.
   Opinion by Arnoux, J.; Sedgwick, Ch. J., wrote : “ I am of opinion that plaintiff showed no cause of action, and concur with Judge Arnoux.”

Judgment affirmed, with costs.


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    HENRY CHAMBERLAIN, Respondent, v. ALFRED BRADY, Appellant.

      Meal estate.—Damages.—Architects' fees paid, when not proper damages for breach of contn'act to convey premises.—Verdict—when may be corrected by court.

    Before Sedgwick, Ch. J., and Russell, J.

      Decided December 30, 1882.
    Appeal by defendant from judgment entered on a verdict directed for plaintiff at trial term.
    Appeal by defendant, from order amending the verdict directed, by increasing the amount of it.
    This suit was instituted by the plaintiff to recover $5,000 paid by him to the defendant February 3, 1881, upon (and to obtain) a contract for a conveyance, to be delivered upon the fifth of the following May, of certain real property in this city, the expenses of searching title ($58.55) and $600 expense incurred for architect’s plan of a building proposed to be erected by plaintiff upon the premises in question; with interest upon the several items, defendant having been guilty of a breach of the contract on his part.-
    As part of the damages, the plaintiff was allowed $659, as the amount due by him to an architect whom he had employed to make plans for a building to be erected on the premises to be conveyed by defendant under the' contract and in anticipation of the performance of the contract.

      The court at General Term said: “The contract did not contemplate that the plaintiff should prepare to build as if he were owner before he became owner. It left him, until its promised performance, without the title or power or interests of owner. The expense, therefore, was not within the contemplation of the parties, at the time of making the contract. Nor was the expense an ordinary or anticipated consequence of the making of the contract. This amount should therefore be deducted from the amount of the verdict and the judgment should be modified in accordance. As modified the judgment should be affirmed without costs of the appeal to either party.
    “ As the jury gave the amount of the verdict directed as a formal matter it was within the power of the court after-wards to correct the error in the addition, that had been made at the time of the verdict. The order appealed from should be affirmed with $10 costs.”

      George H. Forster, for appellant.

      Stanlay & Clark and Edwin B. Smith, for respondent.
   Opinion Per Curiam.


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    THE TWENTY-THIRD STREET RAILWAY Co., Respondent, v. THE BAY RIDGE FERRY Co., Appellant.

      Pleading.-—Valse representations.—Statements as to thing sold Tcnown to loth parties—effect of.

    Before Sedgwick, Truax and O’Gorman, JJ.

      Decided February 5, 1883.
    Appeal by defendant, from j udgment in favor of plaintiff, entered upon a verdict directed by court upon the pleadings. The complaint alleged that the plaintiff agreed to let a certain dock to the defendant, for a certain season, in consideration of the sum of one thousand dollars, and the defendant agreed to hire said dock and to pay therefor the sum of one thousand dollars, and that the defendant took possession of said dock and had not paid the said sum of one thousand dollars, although often requested, etc. The answer admitted the making of the agreement, but alleged that the dock was of no use to the defendant for reasons alleged in the answer. The answer further alleged that defendant had not taken possession of and used said dock, in pursuance of the agreement, as averred by the complaint. By way of counter-claim, it further alleged, that at and before the making of the agreement the plaintiff, by its agents represented that the dock was in all respects easy of access and a desirable dock for the defendant, and that the same could readily and easily be used by the defendant, in its business, which was known to the plaintiff, of receiving and landing passengers by steamers named “Norwalk” and “Martin;” that in fact the defendant was unable to e ' use the dock, as plaintiff’s agent had represented it could be used, and said dock was not desirable, as plaintiff’s agent had represented it was, and it was not a dock from which defendant could receive and land passengers by said steamers. The reply denied the allegation of the counter-claim.
    The court at General Term, said: “The action was in substance upon a promise to pay one thousand dollars. The answer did not show that this promise was not binding for want of consideration. It was immaterial whether the defendant took or did not take possession of the dock. If it did not, it chose not to enjoy an advantage which the agreement gave. As shown by Judge Febedmau, on the trial, the answer did not state any case fór a recoupment of damages, or for false representations. The alleged representations concerned the opinion of plaintiff’s agents t as to the bearing of facts, the existence or non-existence of which, was known or to be learned, by both parties equally.”

      Alfred C. Chapin, for appellant.

      Robinson, Scribner & Bright, for respondent.
   Opinion by Sedgwick, Ch. J.; Truax and O’Gorman, JJ., concurred.

Judgment affirmed, with costs.


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    IN THE MATTER of ROBERT E. DUNHAM.

      Costs—in sound discretion of court in special proceedings—Code Civ. Pro„ §§ 3230, 8240.
    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.

      Decided February 5, 1883.
    This is an appeal taken by the New England Mutual Life Insurance Company from so much of an order as denied costs to appellant, on denying prayer of petitioner.
    In September, 1881, the Odd Fellows’ Hall Association in the city of New York sold out all their property real and personal, and ceased to transact any business.
    Dunham, a stockholder in the association, petitioned that he be paid his distributive share of the assets of the association out of its funds in the trust company on giving a bond for its return should the contingency arise of a certain mortgage (its only liability) being foreclosed and a deíiciéncy remain which the association might be called on to meet. The association demurred to the petition and the New England Mutual Life Insurance Co. answered it. The court gave the petitioner liberty to withdraw his petition or if he elected, the petition might be denied, but without costs. As an order was entered denying the petition without costs and from that part of the order the New England Mutual Life Insurance Company appeals.
    The court at General Term said: “The sections of the Code of Civil Procedure, 3230 and 3240 leave the question of awarding or denying costs in proceedings of this nature to the discretion of the court. The discretion contemplated by the law is not a mere unreflecting caprice exercised in violation of right but a judicial discretion to be used ac-a cording to the rules of law and equity. We do not find that this principle of law has been violated by the order, appealed from in this case.”

      Roger Foster, for appellant.

      Charles A. Jackson, for respondent.
   Opinion by O’Gorman, J.; Sedgwick, Ch. J., and Truax, J., concurred.

Order affirmed, without costs.


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    HERMAN ROSENBERG, et al., Respondents, v. HUGO BLOCK, et al., Appellants.

      Agents.—Arrest.—Commission merchants not liable for conversion for failure to turn over specific proceeds.

    Before Sedgwick, Ch. J., and O’Gorman, J.

      Decided February 5, 1883.
    Appeal from order denying a motion to vacate an order of arrest.
    Action for conversion; the ground of arrest was the same. The papers showed that the'defendants, commission merchants in the city of New York, received from the plaintiffs merchandise upon the agreement that defendants would sell the same as agents for the plaintiffs and remit the proceeds of sales to them; that the defendants did sell said merchandise to the amount of about $800, but did not remit the proceeds, but refuse to pay the same.
    The court at General Term, said : “The allegation in the complaint that the defendants “ unlawfully and wrongfully and with intent to defraud the plaintiffs, converted the ■ same to their own use,” cannot be regarded as a statement of facts of the truth of which plaintiffs could have knowledge, but rather as a legal conclusion from the facts which .they had averred (Greentree v. Rosenstock, 61 A7. 7. 583).
    “The mere fact, that the defendant was an agent to sell and receive the proceeds does not make him liable for a tort, in case he does not pay over the proceeds on demand, after those proceeds have passed from the specific form in which they were received, and have been commingled with/ the agents own money. The duty of an agent for sale is to account for the proceeds of his principal’s property ; but he is not guilty of a conversion, if he does not deliver the specific proceeds to his principal (Robbins v. Falconer, 43 Super. Ot. 363).”

      S. W. Weiss, for appellants.

      Theron G. Strong, for respondents.
   Opinion by O’Gorman, J. —Order appealed from reversed with $10 costs, and the order of arrest vacated with $10 costs.

Sedgwick, Ch. J. —“I concur on the ground that the papers did not show that the defendants had received the proceeds of the goods or how much they were.”


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    THOMAS MURTHA, Respondent, v. MICHAEL CURLEY, Impleaded, &c., Appellant.

      Costs.—Where plaintiff on entry of judgment is entitled to costs, and general term reverses judgment, “costs to appellant to abide event," and court of appeals affirms original judgment ‘ ‘ with costs, ” such latter phrase refers only to costs in court of appeals.

    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.

      Decided February 5, 1883.
    Appeal from an order directing the clerk to tax certain costs.
    The plaintiff obtained on the trial of the action a judgment against the defendants for a certain sum of money. From this judgment the defendant Curley appealed to the ° general term of this court, which reversed the judgment of the court below with costs of appeal to the appellant to abide the event of a new trial. The plaintiff appealed to the court of appeals.
    The order of the general term of this court was reversed by the court of appeals and the judgment of the trial term was affirmed with costs to the plaintiff. The plaintiff then presented his bill of costs for taxation to the clerk, who refused to tax the costs of the general, term in favor of the plaintiff. The plaintiff then moved at special term for a re-taxation of said costs, and the special term made an order directing the clerk to allow to the plaintiff the costs of the general term.
    The court at General Term, said: “The order of the general term limited the recovery of the costs of the general term to the defendant Curley,- who was the successful party on the appeal to the general term, and he was to recover the costs of the general term only in the event that he should finally succeed in the action. The general term had the power to reverse the judgment with costs to abide the event, in which event, the party finally succeeding in the action should have been entitled to tax the costs of an appeal or trial at which we had been beaten (First Natl. Bk. •y. Fourth Natl. Bk., 84 If. Y. 469). The costs to be awarded upon the granting of a new trial are in the discretion of the general term, and may be awarded to either party absolutely, or to abide the event {Code Civ. Proo. § 3238). In this case, the genera] term saw fit to award the costs of the appeal to the defendant Curley. It did not award them to the plaintiff. The plaintiff could not have them in any event because he did not maintain the judgment in his favor (Howell v. Van Siclin, 8 Bun, 524). It is true that the court of appeals reversed the judgment of the general term “ with costs,” but the words “with costs” in the order of the court of appeals mean, the costs in that court (Sisters of Charity v. Kelly, 68 N. Y. 628).

      Starr & Hooker, for appellant.

      A. D. Pape and H. D. Burnett, for respondent.

       Reversed, 92 N. Y. 359.

   Opinion by Truax, J.; Sedgwick, Ch. J., and O’Gorman, J., concurred.

Order of special term reversed with $10 costs, and taxation of the clerk affirmed.