author: Miller, P. J.:

text:
    JUD SMITH, Sheriff, etc., Appellant, v. WILLIAM T. POST, Respondent.

      Chattel mortgage — when fraud of mortgagor does not affect lights of mortgagee — given to two persons to secure separate debts — when void as to one mortgagee, and good as to the other.

    Where property covered by a chattel mortgage is in the possession of a third person, an immediate delivery thereof is not necessary.
    The mortgage provided that in case of default in payment, or in case the mortgagees should at any time deem themselves unsafe, they might take possession of the property and sell the same. Held, that this provision was for the benefit of the mortgagees, and authorized therp. to take possession when, in their judgment, they deemed it best for the safety of their demands so to do, and that no proof was required to show that they considered themselves unsafe, as the legal presumption would be that such was the fact, when possession was taken before the mortgage was due.
    The fraud of the mortgagor will not affect the rights of the mortgagee to the property mortgaged, unless he was a party or privy to it, and received the mortgage with the intent to hinder, delay or defraud the creditors of the mortgagor.
    Where a mortgage is made to two persons, to secure separate and distinct debts, the knowledge and fraudulent intent of one of them, will not affect the rights therein of the other. The mortgage will he void as to the one and good as to the other.

      Goodwin v. Kelly (42 Barb., 194) followed.
    Appeal from a judgment in favor of the defendant, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the judge’s minutes.
    The action was brought by the plaintiff to recover personal property, which he had levied upon by virtue of an execution against one Thomas Merritt, and which had been sold by virtue of a chattel mortgage in favor of the defendant and one Catharine McCutchen. The mortgage was executed July 30, 1869, and delivered soon afterward. On the fifth of August, the mortgage was filed, and the defendant claims that he took actual possession. The cause was tried at the Chemung Circuit, before Justice Mubbay and a jury, and resulted in a verdict in favor of thedefendant.
    The defendant interposed two defenses. First, he claimed title to the property, under the chattel mortgage; and second, he denied that he had interfered with the property in any way, and claimed, that, before it was attached for the claim under which the plaintiff sought to hold the property, and, to secure which, it was attached, he had released all his interest in it, to Mrs. McCutchen, and that the sale was by her alone.
    The principal question litigated upon the trial, was the good faith of the mortgage. The evidence showed that in July, 1869, the said Merritt was the owner of a farm and of a large amount of personal property thereon, and that, on the twenty-ninth of that month, the wife of said Merritt, having learned that her husband was in Boston, in trouble and needing money, came with a neighbor to the defendant and wanted to borrow some money and give the farm as security. The defendant declined to loan money upon the farm, but offered to buy it, which offer was subsequently accepted. The defendant, having learned of the existence of several debts, in Elmira, against Merritt, and it being claimed that he owed his mother-in-law, Mrs. McCutchen, $1,800, it was further agreed that the defendant should assume the payment of all the Elmira debts, provided that Merritt execute a chattel mortgage- to the defendant and Mrs. McCutchen, -upon a portion of the personal property on the place, to secure their respective debts.

      Mrs. Merritt went to Boston and brought back the deed and chattel mortgage, executed by Merritt, and delivered them to the defendant. Various exceptions were taken, and decisions made on the trial, which are discussed in the opinion.

      P/rasfms P. Hart, for the appellant.

      D. B. Hill, for the respondent.
   Miller, P. J.:

The question whether there was an immediate delivery, and an actual and continued change of possession of the mortgaged property, was a question of fact, and properly submitted to the consideration of the jury, upon the trial. There was proof to show that an actual, formal possession was taken, and that the defendant assumed control, and gave directions concerning it, and exercised a general oversight over it. The question of fraud having been submitted to the jury, and they having found against the plaintiff, the verdict is conclusive on the point made. It may also be remarked, that the mortgaged property being at the time in the possession of a third person, an immediate delivery was not necessary. ■ The provision in the mortgage, that in case of default in payment, or in case the mortgagees should, at any time, deem themselves unsafe, they might take possession of the property and sell the same, was for the benefit of the mortgagees, and authorized them to take possession, when there was a default, or when, in their judgment, they deemed it best for the safety of their demand; and no proof was required to show that they so considered themselves unsafe, as the legal presumption would be, that such was the fact, when possession was taken before it was due. Especially does such a presumption arise, when no distinct point was made upon the trial, that there was a failure of proofs in this respect.

There was, I think, no error in the charge of the judge, in holding, substantially, that the defendant was not, nor were his rights to the mortgaged property, affected by the fraud of the mortgagor, unless he was a party or privy to it, and received the mortgage, with the intent to hinder, delay, or defraud the creditors of the mortgagor. And also, that to make the mortgage void, as to the defendant and Mrs. McCutchen both, they must have received the mortgage for the same fraudulent purpose, or, in effect, that even if Mrs. McCutchen knew of such fraudulent intent of the mortgagor, her knowledge could not affect the defendant, and he might be protected, while she would not. There appears to be no good reason why an innocent mortgagor should suffer for the fraudulent intent of his associate, of which he had no knowledge, and in which he did not participate. He stands in the same position, as if he had taken a separate mortgage to himself, and the fact that the same mortgage provides for his separate debt, does not infect the amount secured, with the fraud that taints the portion secured to another party. There are virtually two mortgagees instead of one, whose interests are distinct, and the fraud which vitiates the mortgage, relates to the substance and the subject-matter of the mortgage, and not to the parties. And even this general rule, as to the subject-matter, is not without exception, and it is held, .that if part of a mortgage is proved to have been a subsisting debt, at the time of its execution, the mortgage is valid to the extent of such debt. It may be valid as to part of the property described in it, and it is not rendered void, by reason of its professing to mortgage other property, as to which it is inoperative. So long as there was no original intention of the mortgagor, to hinder, delay and defraud creditors, within Russell v. Winne, or a fraudulent purpose, it can be upheld, as a valid and lawful security. Although two parties are secured separately, in one instrument, it must be considered as a transfer, separate and distinct, which enables each one to hold the property independently of the other, in proportion to the debt secured. The same rules apply to conveyances of real estate; also to the assignments of property.

It is said that the defendant did not take the mortgage for any debt, past or present, due or owing to him, and was merely a trustee for Merritt, and the property mortgaged to secure debts which were named, and, in this view, was in the condition of an assignee, or trustee for the benefit of creditors, and his title was affected by the fraud of the mortgagor. I think that this position is erroneous, and the assumption of the payment of the debts by the defendant, rendered him liable for the same. It was, in fact, an absolute promise to pay, on his part: He was not to take the property, sell and dispose of the same, and apply the proceeds towards the payment of the debts, but was obligated to pay them, without regard to the property, or the amount realized upon any sale thereof. It was a promise made by an individual to a third person, for a valid consideration, to pay money to such person, by virtue of which, an action can be sustained by the latter, in his own name, against the promissor. It matters not, that the defendant did not pay before the attachment was levied, and it is sufficient, I think, that he was liable to pay, to uphold the amount secured by the mortgage to him.

I think there was no error in the charge of the judge to the jury, that in case they found the mortgage valid, under the rules laid down by him, then the verdict should be for the defendant, without going further. The judge had presented a statement of the leading features of the case, and the first defense interposed, which was that the defendant and Mrs. McGutchen had a mortgage, executed upon this same property, under which he was protected in taking the property, if he took it at all, and I am unable to discover-any ground, upon which it can fairly be claimed that this proposition was not a sound one. The argument of the plaintiff’s counsel, as I understand it, is, that it mattered not whether the mortgage was valid or otherwise, if. the defendant released all his right, or title, or interest,in the mortgaged property, under his mortgage, and gave it up to Mrs. McGutchen, and consented she might take it and dispose of it, without reference to the debt, and that his case was the same as if there was no mortgage at all. I see no good reason why the defendant could not justify himself, under his interest in the mortgage, if it was a valid one, as the judge charged; and the subsequent portions of the charge, were not inconsistent with this view, or liable to exception. Nor was there any error in any of the refusals to charge as requested.

There was- no valid objection to the evidence given, as to the amount of the treasury check, payable to the order of Mrs. McOutchen, in the hands of Merritt, which was all that the judge allowed to stand as testimony, when the motion was first made to strike out the same, and the subsequent evidence given, relating to the same matter, was, I think, competent. But even if incompetent, the error was cured by the charge of the com’t to the jury, that there was no sufficient evidence of indebtedness in the case to Mrs. McOutchen.

The evidence of Thomas Merritt’s declarations, as to what had been done with his property, was also competent, for the purpose of establishing a ratification of the act of his wife. It was also proper for the defendant’s counsel to read the balance of the motion papers, and, as held by the judge, such portions of them, as would qualify and explain anything that had been read. The other questions made, and exceptions taken, do not require examination.

After a careful examination, I am satisfied that there was no error upon the trial, and that, therefore, a new trial must be denied, and the judgment and order affirmed, with costs.

       Butler v. Miller, 1 Coms., 496.

       Goodwin v. Kelly, 42 Barb., 194.

       Wescott v. Gunn, 4 Duer., 107.

       Gardner v. McEwen, 19 N. Y., 123.

       37 N. Y., 591.

       Bump on Fraudulent Conveyances, 472.

       Prince v. Shepard, 9 Pick., 176.

       Lawrence v. Fox, 20 N. Y., 268; Hall v. Robbins, 61 Barb. 33; Hale v. Boardman, 27 Barb., 82.


source: Caselaw Access Project

author: Miller, P. J. :

license: Public Domain

text:
    WILLIAM T. POST, Plaintiff, v. FLAVEL H. DOREMUS, Survivor of Theron S. Doremus.

      Undertaking on appeal—liability under Gode, § 334—extra allowance — costs of appeals, from what orders, secwred by the undertaking.

    The plaintiff brought an action against one Hathom, which resulted in a verdict for the defendant. Plaintiff appealed to the General Term, where a new trial was granted. Upon an appeal from the order of the General Term, granting the new trial, the defendant and another executed an undertaking, which provided, 1st. For the payment of all costs and damages which might be awarded against the appellant on said appeal, not exceeding §500; 2d. For the amount directed to be paid if the judgment appealed from, or any part thereof, should be affirmed; and 3d. For the payment of all damages and costs which should be awarded against the appellant on said appeal. The Court of Appeals affirmed the order of the General Term, and ordered judgment absolute for the plaintiff.

      Held,, that the first part of the undertaking restricted the amount, secured by it, to a sum certain, which is specified; that the second was entirely inapplicable to the order appealed from, and should be considered stricken out as surplusage ; that the third part was unrestricted in its terms, and, fairly interpreted, was broad and comprehensive enough to embrace all costs and damages which might, finally, be awarded against the appellant, and necessarily included the full amount of the judgment awarded by the Court of Appeals.
    The undertaking required to be given by section 334 of the Code, does not of itself stay the proceedings in the court below; and the only way in which they can be stayed, after an order for a new trial has been made, is by a motion directly to the court for that purpose, where the proper terms can be imposed as to security.
    As the action of the plaintiff in accepting the undertaking in suit instead of proceeding with the case, was for the benefit of the appellant, who was thereby relieved from the necessity of making a motion to the court, it was held, that this furnished a sufficient consideration to support the undertaking.
    At the time of entering the judgment in the original action, an extra allowance was granted to the plaintiff. Held, that he was entitled to recover the same from defendant in this action.
    At the same time that the appeal was taken from the order granting a new trial, appeals were taken from two other orders in the action. Held, that the costs of those appeals were not included in the undertaking.
    Case submitted upon an agreed statement of facts.
    The plaintiff brought an action in the Supreme Court against one Hathorn, impleaded with one Robertson, which resulted in a verdict for the defendant. A motion was made at Special Term for a new trial, which was denied, and, upon an appeal from the order to the General Term, it was reversed, and a new trial granted, with cost to abide the event. Hathorn appealed to the Court of Appeals, and filed a stipulation that if the order was affirmed, judgment absolute might be rendered against him, and, upon such appeal, filed an undertaking, which is as follows:
    “IN" THE COURT OF APPEALS.

    “Whereas, on the third Tuesday of November, 1867, in the Supreme Court, at the General Term of the sixth judicial district of the State of New York, an order was made reversing the order of the Special Term in this action (denying the plaintiff’s motion for a new trial), and granting the said respondent’s motion for a new trial.

      “ And the above-named appellant, feeling aggrieved thereby, intends to appeal therefrom to the Court of Appeals.
    “ Now, therefore, we Theron J. Doremus, of No. 1 Erie Buildings, Reade street, in the city of New York, and F. H. Doremus, of No. 7 Erie Buildings, Reade street, in said city, do hereby, pursuant to the statute in such case made and provided, undertake that the said appellant will pay all costs and damages which may be awarded against him on said appeal,'not exceeding $500; and do also undertake that if the said judgment, so appealed from, or any part thereof, be affirmed or the appeal be dismissed, the said appellant will pay the amount directed to be paid by the said judgment, or the part of such amount as to which the said judgment shall be affirmed, if it be affirmed only in part, and all damages and costs which shall be awarded against said appellant on said appeal.
    “ Dated December 3, 1867.
    “THERON S. DOREMUS.
    “ F. HARRY DOREMUS.”
    To the said undertaking, was annexed an affidavit of each of the sureties, that he was a householder, and worth the sum of $1,000, and the same was duly acknowledged.
    The Court of Appeals affirmed the order, and judgment absolute was ordered in pursuance of the stipulation, with costs. The proceedings were remitted to the Supreme Court, where the plaintiff’s damages were assessed, costs adjusted upon notice, and without objection, and judgment entered, on the 11th day of August, 1873, for $4,887.02, damages and costs. The plaintiff proposed to move for an extra allowance, and Hathorn’s attorney stipulated that it should be granted, and it was included in the costs.
    During the litigation, two several orders were made at Special Term, in relation to matters of practice in the case, which were appealed from to the General Term by Hathorn, and, being affirmed, they were appealed from to the Court of Appeals, which appeals were heard at the same time as the appeal from the order granting a new trial, and the orders affirmed, with costs. The defendant, in the case submitted, was the survivor of the two sureties named in the undertaking.

      L). B. Hill, for the plaintiff,
    cited Rogers v. Kneeland (10 Wend., 218); Wiser v. Blachly (1 John. Ch., 607) ; Farley v. McConnell (52 N. Y., 630); Ex parte Eastabrooks (5 Cow., 27); McMahon v. Allen (22 How., 193) ; Valton v. The Nat. Loan Fund Life As. (19 How., 515); Clark v. Brooks (2 Abb. [N. S.], 399); Tiers v. Carnahan (3 Abb., 69); Von Keller v. Schulting (45 How., 139); Beals v. Benjamin (29 How., 101).
    (7. jfcf. Marsh, for the defendant,
    cited Griswold v. Fowler (15 Abb., 368, note); Thompson v. Blanchard (3 N. Y., 335); Halsey v. Flint (15 Abb. Pr., 367); Hall v. Cushing (9 Pick., 395); Poppenhusen v. Seeley (41 Barb., 450); S. C. (3 Keyes, 150) ; Onderdonk v. Emmons (9 Abb., 187).
   Miller, P. J. :

The undertaking executed by the defendants, upon the appeal taken to the Court of Appeals, provided, first, for the payment of all costs and damages which might be awarded against the appellant on said appeal, not exceeding $500; second, for the the amount directed to be paid, if the judgment appealed from or any part thereof be affirmed, or the appeal be dismissed, or the part of such amount as to which the said judgment should be affirmed, if it be affirmed only in part; and third, to pay all damages and costs which shall be awarded against the appellant on said appeal. The first part restricts the amount to a sum certain, which is specified. The second provides for the payment of a judgment, or such part thereof as may be affirmed, when there was no judgment appealed from, and is entirely inapplicable to the order from which the appeal was taken. It may, I think, be regarded as redundant and superfluous, and considered stricken out as surplusage. The third part is unrestricted in its terms, and, fairly interpreted, includes all costs and damages arising to the plaintiff by reason of the appeal. This is a legitimate and rational construction from the terms and language of the undertaking, and I think, in judgment of law, is contained in it.

It may, I think, be considered either as ' a continuation of the first part, which extends the obligation beyond the $500 therein specified, or as an independent and distinct clause, which has precisely the same effect. In either point of view, it is, I think, broad and comprehensive enough, to embrace all costs and damages, which might finally be awarded against the appellant, which necessarily would include the full amount of the judgment awarded by the Court of Appeals. It is no objection to an undertaking, that the penalty is for more than the amount required, nor, in my opinion, that it is broader in its terms, than was actually necessary. Hence it cannot be urged that this instrument was too comprehensive, and, unless it was not embraced within some rule of law, it cannot, I think, be avoided.

It is objected, that it was for more than was required by section 334 of the Code, which limits such an undertaking to the costs of the appeal, not exceeding $500, and which is the only undertaking required upon such an appeal. It is true, that the first part of the undertaking embraces an appeal from an order, under this section, but it does not of itself stay the proceedings in the court below ; and the only way in which the proceedings in the court below can be stayed, after an order for a new trial has been made, -is by a motion directly to the court, for that purpose, where the proper terms can be imposed as to security, so as to protect the respondent against loss, if the Court of Appeals should have affirmed the order, or, as in this case, directed a judgment in his favor, The undertaking, therefore, under section 334, would not have stayed the plaintiff’s proceedings, and the plaintiff would have been authorized to disregard the appeal, and could have proceeded, under the order granting a new trial, the same as if no appeal had been' taken. Ho motion appears to have been made in the case, or any order specifying the terms on which a stay would be granted, but the bond was executed voluntarily, and perhaps for the very purpose of rendering any such motion unnecessary. It contained a provision, which, I think, covered all costs and damages, and was amply sufficient for such a purpose. It was all which could have been required, and no further proceedings were taken by the plaintiff in the court below, after it was executed, until the judgment of the Court of Appeals, some six years thereafter. Although the undertaking was not given in pursuance of an order of the court, yet, inasmuch as it was for the benefit of the appellant, and he chose thus to avoid the necessity of making a motion for a stay, and the plaintiff accepted the undertaking instead of proceeding with the case, as he had a perfect right to do, I am not able to discover any valid, legal ground which will relieve the defendant from liability. It is no answer to say that the undertaking derives its entire force from the statute under which it is given, because there is no provision of the Code, which provides distinctly for an undertaking upon a stay, or the mode or terms by which proceedings shall be stayed by the court. It is enough that it included all that it is required to cover—the final judgment in the case—to render it valid and binding.

The provision of section 341 of the Code, that an undertaking shall be of no effect, unless it be accompanied by an affidavit of the sureties that they are each worth double the amount, cannot affect the validity of the undertaking, because it has been strictly carried out by the affidavit of the sureties, so far as any amount is specified.

As the undertaking in question, clearly included the judgment absolute rendered by the Court of Appeals, under section 11, subdivision 2, of the Code, against the appellant, upon affirming an order, the plaintiff is entitled to a judgment for that amount, with legal costs. As to the costs, I think that the plaintiff is entitled to the extra allowance. The costs, on the other appeals from orders, are not included in the undertaking, as they are neither costs nor damages, awarded against the appellant, upon the appeal. ■

As the case stands, the plaintiff is entitled to a judgment for the full amount claimed, deducting $180, for costs on affirmance of two orders, in the Court of Appeals, with costs.

Present—Miller, P. J., Boardman and James, JJ.

James, J., dissented.

Judgment ordered for plaintiff, with costs.

       Rogers v. Kneeland, 10 Wend., 218.

         Ex parte Eastabrooks, 5 Cow., 27.

       See McMahon v. Allen, 22 How., 193.

       See Beals v. Benjamin, 29 How., 101; Clarke v. The City of Rochester, id., 97.


text:
    HENRY M. TRAIN, Appellant, v. THE HOLLAND PURCHASE INSURANCE COMPANY, Respondent.

      Policy of insurance — delivery of, iy agent after loss—Premium not paid—effect of.

    Plaintiff applied to defendant’s agents to change his insurance. The agents agreed to obtain what they could, on the return of plaintiff’s policy of insurance in the Andes Insurance Company, and to give plaintiff credit for this amount on insurance in another company, the defendant not being distinctly named as such other company, and neither party having in view the continuance of both policies at the same time.
    The Andes company refused to pay the return premium, and the plaintiff was informed of this. He said nothing more about a new insurance, and gave notice of loss to the Andes company. No rate of insurance was agreed upon between the plaintiff and defendant’s agents, nor did plaintiff agree to accept the policy of insurance, which was forwarded to defendant’s agents at their request. After the fire, the policy of insurance was received by the plaintiff, but no premium was paid defendant’s agents. The policy contained the following condition: “If the premium of insurance shall not have been paid such insurance shall be void.” Held, that the proposal to insure, came from the company, by then sending the insurance policy to their agents; that such proposal had never been accepted by plaintiff by a compliance with its terms or conditions, the policy not having been delivered and accepted, and no premium having been paid; that the delivery of the policy to the plaintiff, after the fire had taken place, was unauthorized, and did not create a contract of insurance. Even if it were otherwise, the premium of insurance not having been paid, the insurance was void, according to the terms of the policy.
    Appeal from a judgment at the Circuit, dismissing plaintiff’s complaint.
    At the close of the testimony, the defendant moved for a dismissal of the complaint, and the motion was granted. From the judgment entered, the plaintiff appealed.

      J. A. Vance, for the appellant.

      Q-eorge Bowen, for the respondent.
   Opinion by Miller, P. J.

Present—Miller, P. J., and Boardman, J.

Judgment affirmed.


text:
    PETER PHILLIP, Respondent, v. JOSETTE GALLANT, Appellant.

      üontraat—misund&rstcmding of provisions of, try one party to — not sufficient to anoid it—What OMthorkes reformation of written instrument.

    The defendant, who did not understand English perfectly, was informed of the contents of a contract by a scrivener’s clerk, who was present at the time the contract was read and executed. In an action brought by the assignee of the other party, to recover the amount due on the contract, she set up as a defense that she had been misinformed as to the provisions of the contract. It appeared that the contract was carefully read over twice to the defendant, and was executed by the parties in good faith. Held, that the plaintiff was not responsible for the error or ignorance of the interpreter; that the defendant was in fault for trusting to an incompetent person to explain the agreement, and was not entitled to claim that there was no valid contract.
    To authorize a reformation of a written -instrument, solemnly executed, there must not only be a plain mistake, but it must be shown that the part omitted or inserted in the same, was omitted or inserted, contrary to the intention of the parties, and under a mutual mistake.

      Beckwith <6 Bóbie, for the appellant.

      H. JE. Barnard, for the-respondent.

       Nevius v. Dunlap, 33 N. Y., 676.

   Opinion by Miller, P. J.

Present—Miller, P. J., Boardman and James, JJ.

Judgment affirmed, with costs.


text:
    MILES KENT, ALBERT C. ROSE and AMBROSE KENT, Appellants, v. HECTOR S. KENT and others, Respondents.

      Judgment against administrator—not evidence against heirs and grantees—Statute of frauds.

    A judgment recovered against an administrator is not evidence of a debt due by the intestate, as against his heirs or grantees.
    An agreement by which A. is to perform work for B., for which, payment is to bo made after the death of B., is valid under the statute of frauds.

      Dresser v. Dresser (35 Barb., 573) followed.
    Appeal from a judgment dismissing plaintiffs’ complaint.

      John W. Dininny, for the appellants.

      John J. Van Allen, for the respondents.
   Opinion by Boardman, J.

Present—Miller, P. J., Boardman and James, JJ.

Judgment affirmed, with costs.


text:
    THE PEOPLE ex rel. ASA FOOTE v. RALPH S. DEWEY.

      Venae viewers—question of jurisdiction only, considered on certioi-ari—presumption against jurisdiction, net indulged—proportion of fence to he maintained hy each, party.

    The provisions of the Bevised Statutes  make the decision of the fence viewers final, and, on certiorari, the court is restricted to the consideration of the question of jurisdiction, and will not presume facts to exist, which take away their jurisdiction. The law  does not require each party to build one-half the fence, but a “ just and equal proportion of the division fence; ”
       that is, just and equal with reference to the cost of construction and maintenance.
    Certiorari to the fence viewers and town clerk of the town of Sidney, Delaware county, to review proceedings for the decision of a line between relator and defendant Dewey.

      Belknap db Edson, for the relator.

      F. B. Arnold, for the defendant.

       1 R. S., 320, § 35.

       1 R. S., p. 353, as amended by chap. 540 of the Laws of 1866.

         Section 30, supra; see also sections 31, 32, 43.

   Opinion by Boardman, J.

Present—Miller, P. J., Boardman and James, JJ.

Proceedings affirmed, with costs.


text:
    THE PEOPLE ex rel. HARVEY MILLER and others, v. JAMES R. COMES and others, Referees.
    Certiorari to review the proceedings of referees, appointed by. the county judge of Madison county, affirming the order of commissioners of highways, laying out a highway.
    The only question discussed by the court, was, whether or not the road was laid out through the barn, court or door-yard of the relator, without his consent, in violation of the ■ statute which declares that no road “ shall be laid out through any buildings, or any fixtures or erections for the purposes of trade or manufactures ; or any yards or in closures necessary to the use and enjoyment thereof, without the consent of the owner.”

    The court, after citing with approval the rule laid down by Chancellor Walworth, in Lansing v. Caswell,  decided that the evidence in the case, was' not sufficient to authorize a reversal of the order of the referees, and affirmed the proceedings.

      B. T. Chapman, for the relator.

      M. J. Shoeoraft, for the respondent.

       1 Rev. St., 514, § 57.

       4 Paige, 519-523.

   Opinion by Miller, P. J.

Present—Miller, P. J., Boardman and James, JJ.

Proceedings affirmed, with costs.


text:
    Two Cases. GEORGE E. MORSE, Administrator, etc., Appellant, v. SAMUEL WHITE and others, Respondents. SAMUEL WHITE, Respondent, v. GEORGE E. MORSE, Administrator, etc., and others, Appellants.
    Appeals from judgments in favor of the respondents, entered upon the report of a referee.
    The following extract from the careful and exhaustive opinion of Mr. Justice Boceles, shows the character of the questions passed upon by the court: “It has not been found necessary to cite authorities, or even here to refer, by way of particular notice and comment, to the many cases cited in the elaborate and able briefs submitted by the learned counsel who argued the appeal. The difficulties in the case have arisen mainly, if not entirely, out of a disagreement as to the facts. If the facts certified by the referee be well proved, the case is relieved, as it seems to me, from all perplexity on the law.”
   Opinion by Boceles, J.

Present—Miller, P. J., Bocees and Boardman, JJ.

Judgments affirmed, with costs.


author: Hollín, P. J.:

text:
    JOSEPH FIRMENICH, Appellant, v. LORENZO J. BOVEE and LEWIS KELSEY, Respondents.

      Attorney.—Lien of, for costs—roMi subyeet to right of set-off by opposite pairty.

    The lien of an attorney for his costs, on the judgment recovered, is subject to the right of set-off, in a proper action against the client for that purpose. When, however, the client assigns the judgment, or the costs accrued and to accrue in the action, to his attorney, as security for his costs, the opposite party loses his right of set-off, as the assignment becomes operative before the right of set-off attaches.
    The right of set-off does not attach'until the judgment sought to be set off has been actually recovered.
    Appeal from an order of Special Term, overruling a demurrer to defendants’ answer.
    John H. Yought and Albert Sherwood, who were copartners in business, on October 26th, 1866, recovered a judgment against the defendant, Bovee, for $2,480.35, damages and costs. Sherwood died, and thereafter, and on August 5, 1872, Yought, as survivor, assigned the judgment to the plaintiff, Joseph Eirmenich. On the 23d day of June, 1872, the défendant, Bovee, recovered a judgment against Eirmenich, the plaintiff, for $346.57, damages and costs. Eirmenich appealed from the judgment to the General Term, where it was affirmed, and judgment entered for Bovee for $53.91, costs of appeal.
    The complaint alleges the insolvency of Bovee, and asks that the judgments be set off against each other. It further alleges that Lewis Kelsey claims some ownership in the judgment in favor of the defendant, Bovee, and against the plaintiff, but denies that he has any ownership or interest therein.
    The answer, among other things, sets forth, first, that on the recovery by Bovee of the judgment of June 21, 1872, it was agreed between him and Heddon, his attorney, that Heddon should have a lien on such judgment, for costs, disbursements and services in said action, for $150, and that one Randolph Ballard, who acted as counsel for Bovee on the trial, should have a lien thereon for $20, for his services; and that o.n July 13, 1872, for a valuable consideration, Bovee sold the judgment, subject to the liens aforesaid, to the defendant, Lewis Kelsey. Second, that on the appeal, the judgment was for costs and disbursements, which had been wholly earned and made by Thomas P. Heddon, Bovee’s attorney. The plaintiff demurred to the defense, first above stated, on the ground that it did not state facts constituting a defense to the said action.
    ■ The court, at Special Term, gave judgment for the defendant on the demurrer, with leave to the plaintiff to withdraw it.

      Hamilton B. Squier, for the appellant.

      T. P. Heddon, for the respondents.
   Hollín, P. J.:

On the 26th of October, 1866, Albert Sherwood and another recovered a judgment in this court against the above-named defendant, for the sum of $2,354.11 damages, and $126.24, costs, in an action on contract. On the 5th August, 1872, Sherwood, one of the plaintiffs in said judgment, died; and Vought, the survivor of said plaintiff, for a valuable consideration, sold and assigned said judgment to the above-named plaintiff. Execution was issued on said judgment and returned wholly unsatisfied. After plaintiff became the owner of said judgment, and on the 15th August, 1872, the defendant was notified of the assignment of said judgment to the plaintiff. On the 21st June, 1872, the defendant recovered a judgment in this court against the plaintiff, in an action on contract, for the sum of $346.57, for damages and costs. The plaintiff appealed from said judgment to the General Term, and that court affirmed it, and judgment of affirmance was entered on the 17th January, 1873, with $53.91 costs.

This action was brought to compel a set-off of the judgment recovered by defendant, against the judgment recovered by the plaintiff, upon the ground of the total insolvency of Bovee. The plaintiff alleged in his complaint, that Lewis Kelsey claimed .ownership of the judgment in favor of Bovee against the plaintiff, or some interest therein, which claim is unfounded. Kelsey is made a party defendant.

The answer of the defendants contains, first, a general denial of the matters charged in the complaint.

For a further defense, it is alleged that Thomas P. Heddon was the attorney for the defendant, Bovee, in the action in favor of defendant against the plaintiff, and immediately on the recovery of said judgment, it was agreed between Bovee and Heddon, that the latter should have a lien on said judgment for his costs, disbursements and services in said action, for the sum of $150, which lien still subsists', and that no part of such costs, etc., have been paid. That Bovee agreed with one Ballard, an attorney of this court, that he should have a lien on said judgment for twenty dollars, counsel fees, for aiding in the trial of said cause, which lien still subsists. That on the 13th of July, 1872, Bovee, for a valuable consideration, sold and assigned said judgment to the defendant, Kelsey, subject to the liens aforesaid, and he is now the legal owner and holder thereof and entitled to the money due- thereon.

The third defense is, that Heddon was attorney for Bovee in the appeal by plaintiff to the General Term, from the judgment recovered by Bovee against him, and thus the judgment for costs and disbursements in that case, belonged wholly to Heddon, he having earned all of the costs and made all the disbursements therein; and that no part of said costs or disbursements have been paid said Heddon, and he his entitled to the same.

To the second defense, the plaintiff* demurs, on the ground that it does not state facts sufficient to constitute a defense. The Special Term ordered judgment for defendants, on the demurrer, with costs, with leave to plaintiff to withdraw the demurrer.

In the case of Niooll v. Nicoll, a bill was filed in chancery to set off a judgment in favor of the plaintiff, and to restrain defendant from enforcing his judgment. An injunction issued, which was vacated by the vice-chancellor, on the application of the defendant’s attorney in the action at law in which the judgment was recovered, on the ground that he had a lien thereon for his costs. The chancellor affirmed the order of the vice-chancellor. The Court of Errors reversed the order of the chancellor and remitted the proceedings, with directions to allow the set-off. Cowes, J., delivered the opinion of the court. After stating the practice in the various courts in England and in this State, as to recognizing and enforcing the lien of an attorney on a judgment recovered by him, for his costs, and that, on motion to set off judgments against each other, it was discretionary whether to grant or refuse the relief asked, he says: But when we come to a bill filed or a trial at law, there is no discretion. On motion the courts proceed without the statute; on a bill filed or a trial at law, they are within it, and must obey it. No authority can be produced, where the attorney’s lien was ever recognized on a trial at law as barring a set-off, the right to which would be otherwise perfect * * No case can be produced, where on a bill filed this lien has been let in to obstruct a set-off, until Grisley v. Garrison, decided by the present chancellor. * * * Rules of practice are many times arbitrary, but when a statute comes in, there is a common principle by which all courts' must abide; and which, I think, has been departed from by this decree.”

An attorney, recovering a judgment, has, by law, a lien upon it for his costs. An express agreement that he shall have a lien, is of no greater force than the lien given by law, and hence the lien, in whichever way it is created, is subject to the right of set-off, in a proper action against the client for that purpose. When, however, the client assigns the judgment, or the costs accrued, and to accrue, in the action, to his attorney as security for his costs, the opposite party loses his right of set-off, as the assignment becomes operative before the right of set-off attaches. It follows that the lien of Heddon and Ballard cannot prevent the set-off of the judgment, if otherwise admissible. The right of set-off does not attach, until a judgment, sought to be set off, has been actually recovered. The judgment in favor of defendant against plaintiff, was recovered the 21st June, 1872, but he could not have a right of set-off of the judgment against defendant, until he got an assignment of it, on the 5th August, 1872. The assignment of the judgment by Bovee to Kelsey, was on 13th July, 1872, and before plaintiff had any right to demand a set-off. Unless, therefore, a notice from Kelsey to plaintiff, of the assignment of the judgment against him, was essential, in order to defeat plaintiffs right of set-off, the plaintiff had no such right, and the demurrer was properly overruled. Notice of the assignment of the judgment against Bovee to the plaintiff, is alleged to have been known to Bovee. But notice could not have been given to plaintiff, of the assignment of the judgment of Bovee against plaintiff, as plaintiff was an assignee of the judgment, and the fact of the assignment not disclosed.

The plaintiffs in the judgment against Bovee, had no right of offset, and hence, plaintiff acquired none from them. Having had none at the time of the assignment by Bovee to Kelsey, that assignment was a bar to the right of offset of the judgment for damages and costs.

But if I am right in holding that the plaintiff had a right to a set-off of the judgment in favor of Bovee for costs, notwithstanding the lien of his attorneys, the order must be reversed as to that item, and affirmed as to the judgment assigned to Kelsey, without costs of the appeal to either party.

Ordered accordingly.

       16 Wend., 446.

       Roon v. Second Avenue R. R. Co., 18 N. Y., 368.

       Perry v. Chester, 53 N. Y., 240.


author: Mtjllin, P. J.:

text:
    GEORGE VAN ALSTYNE, Respondent, v. SAMUEL E. NORTON and CARSO CRANE, Appellants.

      Answer — demurrer to — when overruled.

    Where an answer in an action for fraud, contains a denial of the fraud, and a statement of facts which tend to prove the absence of an intent to defraud, a demurrer to it should be overruled, even though the pleading is wholly defective, and ought on motion to be stricken out.
    Appeal from an order, sustaining a demurrer to a portion of the defendants’ answer. The facts appear in the opinion.

      William H. Adams, for the appellants.

      J. W. Stebbms, for the respondent.
   Mtjllin, P. J.:

This action is brought to recover of the defendants, who were bankers at Phelps, in the county of Ontario, $770, alleged to have been obtained from the plaintiff, by false and fraudulent representations. The facts alleged in the complaint, are, that on the 6th January, 1872, the day the money was received by defendants from the plaintiff, they were insolvent, and proceedings were pending against them, instituted by their creditors, to have them declared bankrupts, in which proceedings an injunction had been issued by the Court in Bankruptcy, restraining them from doing any further business. The defendants concealed these facts, and opened their banking-house, on said sixth of January, and continued business as usual, with intent to cheat and defraud their creditors. The plaintiff, relying upon their appearances, and in ignorance of their condition, deposited with them $770, and received from them a draft on Henry Clews & Co., of New York, for that sum. It is further alleged, that defendants had, at that time, no funds in the hands of Clews & Co. The draft was presented to Clews & Co., and payment refused.

The defendants put in an answer containing two defenses. One, a denial of most of the facts alleged in the complaint; the other, after admitting the receipt of money from plaintiff, and the delivery of the draft, alleges that, when the draft was delivered to plaintiff, the defendants had on deposit with Clews & Co., funds or securities, against which they had been accustomed and permitted to draw, to an amount much larger than that called for by the draft; that plaintiff or his transferrees held said draft, and it was not presented until a number of days after it was drawn, and that drafts drawn subsequent to that of the plaintiffj were duly paid. It is further alleged, that the proceedings in bankruptcy were commenced against them, on or about the sixth of January, by the service of an order to show cause and an injunction; that the service was made by a young man, who stated that the proceedings had been instituted for the purpose of bringing about the consummation of an agreement between defendants and their creditors, to extend time for payment of their liabilities, and requesting defendants to go to Syracuse the following Monday, and an arrangement would be completed, by which the proceedings in bankruptcy would be terminated; that defendants went to Syracuse, leaving the sons of defendant Norton, in charge of the bank, instructing them to open the bank, but not to transact any business, or, if any was transacted, to keep it separate, so that it could be canceled in the event that an arrangement was not completed at Syracuse; that a meeting was held, and an agreement prepared and signed by most of defendants’ creditors; and a full settlement was considered so certain by Norton and the creditors, that, by the advice and consent of a number of his creditors, he, Norton, returned home and continued business as before, until and including the thirteenth January, when negotiations for a settlement suddenly terminated, and the bank was closed. That the receipt of the plaintiff’s money and the sale of the draft were in good faith.

Subsequently, a petition, setting forth the facts, was presented to the Court in Bankruptcy, and an order was made, authorizing the assignee to pay to all persons being creditors after the sixth of January, upon their proving their debts and accepting the samé in satisfaction of their claims.

The plaintiff demurred to this defense, as not constituting a defense to the action. The Special Term sustained the demurrer, and gave leave to defendants to answer within twenty days, on payment of costs. From this order, the defendants appeal.

In stating a cause of action or defense in a pleading, facts, and not the evidence of facts, must be set forth. This was the rule at common law, and it is the rule that common sense requires to be applied, in determining the sufficiency of a pleading.

The ground on which a recovery is sought in this action, is fraud; and the facts constituting the fraud, are alleged in the complaint. A denial of the fraud, as charged, puts the plaintiff on proof of it, and entitles the defendants to prove all such facts as they are able to produce, disproving the fraud charged.

In Moak's Van Santvoord's Pleadings, it is said, there are matters of defense that need not be set up in the answer-, but may be introduced under a mere denial, as, for example, matters which go to the essence of the cause of action or contract, showing that no sufficient contract in fact was ever made, or no cause of action ever existed, and, generally, all such matters as go to disprove any material allegation in the complaint.

There is no doubt that the matter’s set up in the defense demurred to, could have been proved under the denial in the first defense.

At common law, almost all defenses were admissible in the action of assumpsit, and in case for torts, under the plea of the general issue. But the defendant was nevertheless at liberty to plead specially any matters of defense, not amounting to the general issue, that admitted that a contract, for example, was made, but that it was void, or voidable, for arry cause which, in law, rendered it void or voidable. It is not necessary to consider whether such a mode of pleading is, or is not, admissible under the Code. Certain it is, that a defense, denying fraud, which is the gravamen of this complaint, amounts to a denial of the whole cause of action, and would not have been admissible as a special plea.

There is a constantly increasing tendency to prolixity in pleadings, and, when to this mischief is added that of setting up in answers, matters wholly unnecessary, thereby increasing largely the costs to suitors and the labors of the court, it is time the practice was stopped, and counsel required to conform to the rules of pleading, which would render impossible these abuses.

I do not propose to affirm the order of the Special Term on this ground; and perhaps the defects in the pleading cannot be reached by demurrer. I shall not consider that question. The defense was demurred to, because it did not constitute a defense to the action. The defense is a denial of the fraud charged, and a statement of facts which tend to prove the absence of intent to defraud. These allegations, If established by evidence, would be a defense to the action, assuming them to be well pleaded. The court could consider no facts, other than those stated in the part of the answer demurred to, and which were admitted by the demurrer. He however goes back to the complaint, and assumes the facts, therein stated, to be true. He comes to the conclusion that the defendants were, upon the complaint and answer, guilty of fraud. This I think the court below had no right to do.

While I entertain no doubt that the pleading demurred to, is wholly defective, and ought to be stricken out, yet, I think it constitutes a defense to the action. The order of the Special Term should be reversed.'

Order reversed.

       Boyce v. Brown, 7 Barb., 80; Russell v. Clapp, 7 id., 482; Pattison v. Taylor, 8 id., 250; Talman v. The Rochester City Bank, 18 Barb., 123.

       3 Ed., 507.

         1 Chitty Pl., 474.


author: Mmmrtf, P. J.:

text:
    FRANKLIN A. SLOAN, Plaintiff, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Defendant.

      Common cairier—Negligence—Bight of husband to recover for injuries to wife— Excessive damages.

    Where a wife is injured by the negligence of a common carrier of passengers, the husband is entitled to recover for the loss of her'services resulting therefrom.
    Proof of her pain and suffering is admissible, to prove the extent of the injury and the duration of the loss of service.
    In an action of tort, the court cannot reduce the verdict of a jmy, because it is deemed excessive. The only remedy, in such a case, is to set it aside and order a new trial.
    Motion for a new trial, on exceptions ordered to be heard in the first instance at General Term.
    The plaintiff’s wife was injured while riding in the defendant’s cars; and, for the loss of her services occasioned thereby, the plaintiff brought this action.
    After the opening of the cause at the trial, the defendant moved for a nonsuit, on the ground that the plaintiff’s wife had recovered a judgment in the Supreme Court for the sum of $14,000, for the same inj ury to her, described in the pleadings in this cause, which judgment had been paid. The motion was'j opposed on the ground that the plaintiff was entitled to a separate action for his damages.
    The court denied the motion, and the defendant excepted.
    The defendant’s counsel asked the court to charge, that, “ under the recent acts of the legislature, the wife alone can maintain an action for her own injuries, and all the consequences to her in all relations, as well to her husband and children, as to herself.”
    The court declined to so charge, remarking: “ I hold that the wife may sustain an action for her personal injuries of a physical character, but not in regard to her husband’s injury in the loss of her services.”
    The defendant excepted.
    Defendant further requested the court to charge, that, “ in so far as the consequences to her are shared by her husband, the legislature has given us no dividing line by which to distinguish what is recoverable by her, and what by him, and the jury, having the fact of the former recovery by her, are bound to render their verdict for the defendant.”
    The court refused the request, remarking, in reference to it, that “ the wife is not entitled to recover anything that belongs to the husband; what particularly relates to the husband can be recovered by him; and the husband cannot recover anything that belongs to the wife.”
    The defendant excepted.
    The defendant then asked the court to charge, that “ the wife has a right under our laws to retain and enjoy the commercial value of her own services, with or without the consent of her husband, and he has no right to compel such services for his own benefit, or to recover here for their value.”
    The court declined to so charge, and said that “ the proposition has nothing to do with this case.” The defendant excepted.
    The jury found a verdict of $10,500 for the plaintiff.

      Thereupon, the defendant moved to set aside the verdict, on the grounds that it was contrary to the evidence; that the evidence was insufficient; and that the damages were excessive.
    The motion was denied, and the defendant excepted.
    The exceptions were ordered to be heard, in the first instance, at the General Term.

      John U. Ma/rtindale, for the plaintiff.

      James B. Cox, for the defendant.
   Mmmrtf, P. J.:

The Court of Appeals, in the case of Filer v. The N. Y. Central R. R. Co., decided that a husband is entitled to recover for the loss of service of his wife, resulting from injuries caused by the negligence of a carrier of passengers. This question is therefore at rest, and cannot be permitted to be again discussed. It is doubtless true, that a husband is not entitled to recover for the pain and suffering endured by his wife, but proof of this pain and suffering is, or may be, not unfrequently admissible, to prove the extent of the injury and the consequent duration of the loss of service.

The court cannot, in an action of tort, reduce the verdict of a jury, because it is deemed excessive. The only remedy in such a case, is to set it aside and order a new trial. The damages awarded by the jury are large, but not excessive. It is impossible to lay down any rule, by which to determine when a verdict is excessive. Every case must be decided upon its own facts, and the jury are much the best judges of what amount of damages will be given to the injured party in redress for the wrong suffered, and, unless it is so large as to excite suspicion at its injustice, the court ought not to interfere.

The wife of the plaintiff was thirty-two years of age at the time of the injury. If the plaintiff’s wife should live until she was of the age of three, score years and ten, the plaintiff would receive her services for thirty-eight years, if she retained her mental and physical powers; and her services in the home of him and his household, would not be extravagantly paid, by an allowance of $500 per year, including her support. It is true that a servant could be employed for a much smaller sum, but the services of the hireling would fall far short of being of the value of those of an affectionate, intelligent and prudent wife. By the annuity tables, her life would be estimated as continuing for about twelve years. This verdict would allow the husband $1,000 per year, out of which he must support her, and furnish her such care and assistance, and medical aid, as she may require, and be deprived wholly of any services from her. I cannot, in view of these considerations, say that the jury have awarded the plaintiff an unreasonable measure of damages.

This case is one of several, to which my attention has been recently drawn, in which the jury, at a second trial, have awarded a much larger amount of damages than upon the first, and it is becoming quite important to defendants, to ascertain what induces this action on the part of juries. Does the resistance of defendants to a recovery, by repeated appeals, excite the prejudices of the jury, and lead them to punish the offender by an increase of the verdict ? If this should prove to be the explanation, it would be a new and alarming phase of trial by jury, and cannot fail to bring it into disrepute. It is unnecessary to say that a jury have no right to inquire into the character, condition or motives of a defendant, in an action before them, unless it comes before them legitimately on the trial.

The court cannot assume that the jury have violated their duty, because, in a few instances, the verdict on a second trial is larger than upon the first, even when the evidence in each is substantially the same; but it behooves the' court to scrutinize the action of juries in cases of tort, when satisfied that injustice has been done, to protect defendants against it.

I do not think the ruling on the trial, or the charge of the court, makes it proper for us to set aside the verdict.

A new trial is denied, and judgment ordered for the plaintiff on the verdict.

New trial denied, and judgment ordered for plaintiff.

       49 N. Y., 42. [See, also, Brooks v. Schwerin, 54 N. Y., 343.—Rep.]


author: Mullin, P. J.:

text:
    THE PEOPLE ex rel. SAMUEL TOMPKINS v. WILLIAM LANDRETH and others, Commissioners of Highways of the Town of Niagara, and others.

      Commissioners of highways— Certiorari to review proceedings of—when quashed— Bight of one whose land is taken, to act as commissioner 3 assess damages.

    Where nearly two years had elapsed since the filing of an order of the commissioners of highways laying out a road, and where the report of the commissioners appointed to assess the damages of those whose lands were taken had been filed, and such damages had been assessed upon the town and paid over to the commissioners of highways,—held, that the court would, in its discretion, quash a certiorari, issued to review such order.

      Semble, that a commissioner of highways is not disqualified, because he owns lands, over which he unites with other commissioners in laying out a road.
    Certiorari to review proceedings of the commissioners of highways, of the town of Niagara, in the county of Niagara, and of the commissioners for assessing damages for the laying out the same.
    Two applications were made to the commissioners of said town, to lay out a road. . On the 25th March, 1872, the said commissioners made an order, laying out said road, and the order was filed in the town clerk’s office, on the same day. The commissioners applied to the County Court, for the appointment of commissioners, to assess the damages of the owners of the land taken for said highway. Commissioners were appointed for that purpose, on the 10th day of March, 1873. On the 12th August, 1873, said commissioners, after hearing the parties in interest, made and filed their award of the damages of the several owners. On the 2d January, 1874, the said commissioners filed in the town clerk’s office, what they call an amended appraisal, made necessary, as they claim, by reason of one of the persons, to whom damages were awarded, having died before the first appraisal was made, and the land, on account of which the damages were assessed, belonged to the heir-at-law of such deceased person. The commissioners of highways further return, that the supervisors assessed said damages on the town of Niagara, in the fall of 1873, and directed the same to he paid to the commissioners of highways, and that the said moneys have been collected and paid over, accordingly.

      Piper & Porter, for the relator.

      3. N. Griffith, for the defendants.
   Mullin, P. J.:

The relator seeks to review, not only the proceedings of the commissioners to assess damages, but also, those of the commissioners of highways, in laying out the road. The order laying out the road was recorded and filed in March, 1872. Nearly two years had elapsed from the filing of the order, before the writ was applied for, a delay which, under the circumstances of this case, makes it proper for us to quash the writ.

A party ought not to lie by, and impose upon the town the expense of appraising, assessing and collecting damages, and then attempt by certiorari, to annul the proceedings in laying out the road. He should have applied for the writ promptly, or, what was the most appropriate remedy, he should have appealed from the order laying out the road. For these reasons, the writ should be quashed, so far as relates to laying out the road.

As to the assessment of damages, laches are not imputable to the relator, but his objections to them are sq technical, as to be almost frivolous. The only one worthy of consideration, is, that one of the commissioners of highways, who applied for the assessment of damages, was himself one of those, whose lands had been taken for the road. My recollection is, that this General Term has ruled that a commissioner of highways is not disqualified, because he owns lands, over which he unites with other commissioners in laying out a highway. Commissioners of highways, like assessors, must act in matters in which they have a pecuniary interest. Hoads must be laid out, and taxes must be assessed; and the injustice that may be done, must be borne, or roads cease to be laid out and taxes assessed. The law permits towns to elect one highway commissioner. If the public interest demands a highway laid out over his land, how is it to be done, if he cannot act ? The statute makes no provision for substituting any other oificer or person in his place. If, however, we are' wrong in this, still, it is in our discretion, whether we will grant the relief sought by this writ; and we think mischief, instead of good, would result from setting aside the proceeding of either set of commissioners.

The writ of certiorari is quashed, with costs to be paid by the relator.

Writ quashed, with costs to be paid by the relator.


text:
    WILLIAM CANDEE, Respondent, v. S. ANGELINE BURKE AND OTHERS, APPELLANTS.

      Foi'edosure by advertisement—Notice of sale—Surplus money — Effect of receipt of, by mortgagor — Foreclosure sale —purchaser at, necessary party to am, action to home it declm'ed void.

    In foreclosure by advertisement, if the notice of sale gives to the public the means of ascertaining the facts, required to be stated in the notice of sale, by accurate reference to the record of the mortgage in the clerk’s office, it is enough; and a strict conformity to the provisions of the statute, is not essential to the validity of the foreclosure. '
    The receipt of surplus money on a foreclosure sale by the mortgagor or his representatives, does not estop the party from questioning the validity of the sale, though it is evidence to be considered in passing on the question of the regularity of the proceedings.
    The purchaser at a foreclosure sale is a necessary party to any action to have the sale declared void.
    Appeal from a judgment entered on the verdict of a jury at the Onondaga circuit. The action was in ejectment to recover possession of four parcels of land situated in Onondaga county. The defense interposed is set forth in the opinion.

      J. O. Hunt, for the appellants.

      William O. Huger, for the respondent.
   Mullin, P. J.:

This appeal is in the same action in which the judgment on the demurrer has just been affirmed; this being an appeal from the judgment, on the merits.

It becomes necessary to state more fully the defenses set up by the defendant in his answer, than was done in deciding the appeal from the judgment on the demurrer.

The first defense denies the complaint, except two or three allegations.

The second, third and fourth defenses set up an adverse possession of the one hundred acres, secondly described in the complaint, by Enos Burke, the husband, S. Angeline Burke, and the father of the other defendants, and, since his death, for more than twenty years prior to bringing the action.

In the fifth defense, it is alleged that S. Angeline was married to Enos Burke, in 1839, and that, during the time they lived together as husband and wife, he became seized in fee of said one hundred acres, secondly described in the complaint. That Burke died in 1862, leaving said Angeline, him surviving; that she had not joined him in any conveyance of said land, and that she is entitled to possession, etc., of one-third part of said land, as for her dower therein.

In the sixth defense, it is alleged that, in August, 1842, Burke and said S. Angeline mortgaged said one hundred acres, secondly described in the complaint, to one Remington, for $1,800 ; that in 1844, said premises were sold on foreclosure of said mortgage, and bid in by one Worden. That S. Angeline was not a party to said foreclosure. That Burke remained in possession, claiming title, and the defendants have been in possession since his death, claiming title under Enos; and that her right of dower has not been barred, and she is now entitled to dower therein, and to redeem the same.

The seventh and eighth defenses set up adverse possession to the one hundred acres, just described in said complaint.

In the ninth defense, Mary Burke alleges title to one-third of one-seventh of the parcel, thirdly described in said complaint.

In the tenth defense, the defendants allege that, in August, 1844, an arrangement was made between Enos Burke and the plaintiff, and Daniel Oandee, by which, Burke was to convey to them the one hundred acres firstly described in the complaint, and caused the other one hundred acres to be conveyed to them by Hicks Worden, in order to defraud said Burke’s creditors; and that the conveyance was made accordingly.

The eleventh defense is a like defense of fraud, as to the other parcels of land described in the complaint.

Defendants put in an amended answer in addition to the former answer, in which they alleged the said several parcels of land were conveyed to the plaintiff as security, and subject to their right to redeem,- and alleging that the whole amount advanced by the defendant had been paid, and praying an accounting and conveyance.

The defense set up in this answer, and such of the defenses in the former answer as set up a counter-claim, were replied to, setting up a former suit for the same cause of action, in bar, in which the judgment was for the defendant.

After the entering of judgment on the,,demurrer, the parties went down to trial on the issues of fact. The plaintiff gave in evidence, deeds to himself and Daniel Can dee, of the two hundred acres described in the complaint, and a deed from Ruth Graham and others, to plaintiff, of the remaining parcels. He also put in evidence the mortgage from Burke and wife to Remington, above mentioned, and offered the proceedings to foreclose said mortgage by advertisement, which evidence was objected to by defendant’s counsel, on the ground that the mortgage had not been legally foreclosed.

The objections to the proceedings were,

First: That S. Angeline Burke was not served with notice of the sale, and her right of redemption remained, and that, as to her interest, there could be no recovery.

Second: That the same right of redemption extends to the heirs of Burke who are in possession with her.

Third: The foreclosure was absolutely void, because the notice of sale did not contain the name of the mortgagee.

In order to meet and remove the objection to the foreclosure, the plaintiff put in evidence a receipt from Burke for the surplus moneys arising from said sale: also the evidence of one Edwards, taken on a former trial, that the surplus money was received by Burke and Worden.” It would seem to have been the opinion of the plaintiff’s counsel, as well as of the court, that the receipt of the surplus moneys estopped Burke, and those claiming under him, from questioning the regularity of the foreclosure. It was said by the chancellor, in Wood v. Jackson that the receipt of the surplus moneys, arising from a sale of land on execution, did not preclude the owners from questioning the validity of the sale, as they had done nothing to encourage the purchasers to bid. I am unable to perceive any reason why the same principle should not be applied to the receipt by the mortgagor or his representatives, of surplus money arising on the sale of the mortgaged premises. Although the receipt of the surplus may not estop the party, it would seem to be evidence to be considered in passing on the question of the regularity of the proceedings. If the owner retain the surplus money, no court would set aside the foreclosure, without requiring him to refund what he had received.

The question recurs, was the foreclosure void, because Mrs. Burke was not made a party, or because the mortgagee’s name was not inserted in the notice % The only effect of omitting to serve on Mrs. B., was to leave her right of redemption unforeclosed, which she may assert at any time; it does not render invalid the foreclosure as to the other parties properly served. Had the name of the mortgagee been altogether omitted from the notice, there would perhaps be some ground for holding the foreclosure irregular, as not complying with the requirements of the statute. But his name is signed to the notice of sale, and the mortgage is in all other respects correctly described.

If the legislature, in prescribing the contents of the notice, intended to secure to the public, accurate information as to the mortgage, and. description of the premises, and not strict compliance with its provisions, the notice in question gives effect to the intention. If any person desired to know who the mortgagee was, who was not fully satisfied that the person signing the notice was such, could readily inform himself, by reference to the book in the clerk’s office, mentioned in the notice.

The case of Judd v. O’Brien is authority for holding, that, if the notice of sale gives to the public the means of ascertaining the facts, required to be stated in the notice of sale, by accurate reference to the record of the mortgage in the clerk’s office, it is enough; and a strict conformity to the provisions of the statute, is not essential to the valdity of the foreclosure. There is, however, another and more conclusive answer to the objection of defendants’ counsel, and that is, that the sale cannot be declared void, except in a proceeding, to which the purchaser Hicks Worden is a party. He is not a party to this suit. Worden may have conveyed with covenants; to declare the sale void, is to divest him and his grantor of the title, and to subject him to liability on his covenants. This, surely, should not be done, without affording him an opportunity to be heard.

The defendants’ counsel objected, on various grounds, to the admission in evidence of the judgment record in the former suit, and which was set up in plaintiff’s reply, as a bar to the relief demanded in such former suit.

It is unnecessary to consider these objections, as the judgment on the demurrer, that defendants ’ counsel permitted to be entered against his client, instead of asking him to withdraw his demurrer, which, if done, would have left the reply denied, rendered unnecessary any proof of the former action, as they were admitted, for all purposes of the action, by the demurrer.

The will of Daniel Candee was properly received in evidence. The plaintiff took under a conditional estate in fee, and, until a breach of the condition, he could maintain an action of ejectment.

The defendants’ counsel claimed the right to give evidence in support of his defenses, setting up adverse possession by the defendants and their ancestors, for more than twenty years before suit was brought. The court refused to permit such evidence to be given, holding that the judgment in the former action, was a bar to the defense of adverse possession. To which ruling, the defendants’ counsel excepted. The only subject for inquiry, is, whether the question of adverse possession was involved or decided in the former action; if it was, the judgment in that .case, forbids an investigation of that subject in this action. Ho such allegation is made in the complaints in the former action, nor is there any adjudication on that question. Indeed, a claim of adverse possession in that action, would have been inconsistent with the claim for redemption, resulting from. the relation of mortgagor to mortgagee. I entertain no doubt but that the defendant was entitled to give evidence on the trial, under his defense of adverse possession.

The defendants connot he permitted to set up the alleged combination between Enos Burke and Daniel Candee, and the defendants, to defraud the creditors of said Burke; with that question they have nothing whatever to do. Burke could not set up any such defense, and his heirs are estopped, as well as himself.

If the defendant Mary Burke is entitled to any share of said lands, the share can be ascertained on the next trial.

The judgment must be reversed, costs to abide event.

Judgment reversed, costs to abide event.

       8 Wend., 9, 31.

       21 N. Y., 186.

       Cutler v. Wright, 22 N. Y., 472.

       4 Kent’s Com., 123, 540; Olmsted v. Harvey, 1 Barb., S. C., 102.


author: Mulliit, P. J.:

text:
    WILLIAM N. BURT , Respondent, v. URIAH SAXTON, Impleaded with others, Appellants.

      Sealed instrument — time of payment of may be extended by parol.

    The defendant was desirous of purchasing premises, upon which the plaintiff held a mortgage. Being unable to make the payments at the times specified in said mortgage, he called upon the plaintiff, who agreed, by parol, that if the defendant would purchase the premises, pay $200 the ensuing spring, and interest on all sums remaining unpaid annually thereafter, and would make certain improvements on them, he would extend the time of payment of the mortgage for twenty years. The defendant purchased the premises, assuming, by his deed, the payment of the mortgage, paid the $200, and made the specified improvements, but failed for two years to pay the interest.
    In an action brought to foreclose the mortgage, held, that the time of payment was extended by the verbal contract, and that there was no default in the payment of the principal; that the payment of the interest was a condition which the defendant must .perform, but that its non-payment was not such a breach of the condition as made the whole principal due.
    Appeal from a judgment of foreclosure and sale, in favor of the plaintiff, entered upon the report of a referee.
    In May, 1867, one Seth H. Bills executed and delivered to the plaintiff, his bond, in the penal sum of $4,000, conditioned to pay $2,000, as follows, viz.: $500 on the 1st September, 1867, and the remainder in three equal annual payments from said last-mentioned day, with annual interest. To secure the payment of this bond, Bills and wife executed and delivered to plaintiff, a mortgage on certain real estate in the town of Castile, county of Wyoming. This action was brought to foreclose this mortgage.
    The defendant, Saxton, before- the action was commenced, and in February, 1868, purchased the premises covered by the mortgage of Bills, and assumed the payment of the same as part of the price.
    Saxton, only, appeared and answered. He set up, by way of defense, that, being desirous to purchase said premises, he applied to Bills, and he consented to sell; but as he (S.) could not make the payments at the times specified in the bond, he called on the plaintiff and informed him of his wish to purchase. Plaintiff told him he wished he would purchase; that, otherwise, he might be compelled to take back the property, which he did not wish to do; and, upon being told that he (S.) could not pay according to the conditions of Bills’ bond, the plaintiff told him if he would pay the then ensuing spring, $200 on the mortgage, and interest, annually, on the whole sum unpaid, and, upon the condition that he (S.) would perform said agreement, and would make such improvements on the premises as would make the mortgage a first-class security, he would extend the time as long as he (S.) desired, not exceeding twenty years; and S. might, at his option, pay any part of the principal at any time within twenty years. At the time of this verbal agreement, there were due on the mortgage, $500 of principal, and about fifty dollars of interest. In pursuance of this agreement, S. purchased said premises of Bills, and, by a covenant inserted in the deed thereof from Bills to him, he assumed to pay said bond to the plaintiff; went into possession; paid $200 on the principal 5 and, during the two years then next ensuing, he made improvements on the premises, to the amount of about $2,000.
    The issues were referred for trial, and the referee found the facts aforesaid, and that defendant had not paid any interest on said bond and mortgage, save the payment of $200, but did pay $400 of principal; and that the premises had been increased in value by the defendants from $2,100, when he bought them, to $6,000, their value at the time of the trial.
    This action was commenced in 1870, and after the whole mortgage debt had become due, according to the condition of Bills’ bond.

      The referee held, as a conclusion of law, that the verbal agreement above mentioned, including the acts of the parties under it, did not operate to extend the time of payment, as originally stipulated in the mortgage, and he ordered judgment of foreclosure and sale, with costs.

      E. E, Fa/rman, for the appellant.
    The parol agreement operated to exend the time of payment of the mortgage. (Dodge v. Crandall, 30 N. Y., 294; Townsend v. Empire Stone Dressing Co., 6 Duer, 208; Lattimore v. Harsen, 14 John., 330; Delacroix v. Bulkley, 13 Wend., 71.)

      Thomas Corlett, for the respondent.
    A specialty, before breach, cannot be changed by parol. (Mitchell v. Hawley, 4 Denio, 414; Kuhn v. Stevens, 36 How., 275; Clough v. Murray, 3 Robt., 7.) The agreement was void by the statute of frauds. (Wilson v. Lester, 64 Barb., 431; Smith v. Devlin, 23 N. Y., 367.)
   Mulliit, P. J.:

It is well settled in this" State, whatever the rule may be elsewhere, that the time of performance of a contract under seal, may be extended by parol.

The court, in Clark v. Dales, adopted the ruling of the Supreme Court of Pennsylvania, that a new consideration is not necessary to give validity to an agreement to extend the time of performance; the waiver is enough for this purpose. It is said by the learned judge, in is opinion in the case cited, that the effect of an agreement to enlarge the time, is to substitute or adopt the extended time, for the time specified in the original contract. It then stands as a new agreement, whenever the mutual promises furnish a good consideration. If a consideration was essential to the agreement to extend the time of payment, the assumption of the mortgage debt by the defendant, Saxton, is sufficient to bind the plaintiff, and the extension is ample to bind the defendants. It is not intimated in any of the cases that hold that time of performance of a sealed or written contract may be extended by parol, is in conflict with the general rule that a written contract cannot be varied or modified by parol. We must hold, then, that the time of payment was extended by the verbal contract, and that there was no default in the payment of the principal of the indebtedness. Interest was unpaid at the commencement of the action, for which there might have been a foreclosure, but not for the whole debt. The payment of interest is a condition which the debtor must perform, but its non-payment is not such a breach of the condition as makes the whole principal due. But if the whole principal became due upon default to pay the interest, this case was not tried nor decided upon that theory. The defendant was- precluded from having his defense considered by the referee, and a new trial becomes indispensable.

The judgment must be reversed and a new trial granted ; costs to abide event.

Judgment reversed and new trial granted, costs to abide event.

       Fleming v. Gilbert, 3 J. R., 528; Keating v. Price, 1 J.’s Cases, 22; Esmond v. Vanbenschoten, 12 Barb., 369; Clark v. Dales, 20 id., 42; Stone v. Sprague, id., 509; Flynn v. McKeon, 6 Duer, 203; Meehan v. Williams, 2 Daley, 367; Newton v. Wales, 3 Robt., 453.

       Supra.

         14 Serg. & Rawle, 241.


author: E. Dab win Smith, J.:

text:
    ORRIS MARSH, Respondent, v. THE TOWN OF LITTLE VALLEY, Appellant.

      Towns—when action will lie against—Bonds of— rights of bona fide purchases' of— Effect of repeal of act authorising the issue bf town bonds.

    Town bonds, payable to bearer, and which appear on their face to be issued-in pursuance of the express authority of the legislature, are not, when in the hands of a bona fide purchaser for value, open to any defense in respect to their validity.

      St. Joseph Township v. Rogers (16 Wall., 644) followed.
    The holder of such bonds may maintain an action at law against the town, and is not compelled to resort to mandamus.
    No action at law will lie against a town in respect to all that class of claims, accounts or demands, which come within the scope of the powers and duties, conferred upon the board of town auditors, to examine, settle,adjust and allow; certainly not until they become fixed, recognized and admitted debts. But this rule does not apply to settled and admitted debts, resting on bond, or upon other adjusted admission or obligation, binding on the town.
    The doctrine laid down in Bell v. The Town of Esopus (49 Barb., 506) limited.

      The rights of a Iona fide purchaser of such bonds, cannot be taken away or affected by the subsequent repeal of the act under which they were issued.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this case before the court, without a jury.
    This action is upon three town bonds, given by the defendant for bounties to soldiers, mustered into the service of the United States, upon the call of the President, in 1864, and issued under chapter 590, of the Laws of 1869, legalizing the acts of the town meetings of said town, in August, 1864, under which, said bounties were authorized.
    The cause was tried, by a judge at the circuit, without a jury, who rendered judgment for the plaintiff, for $1,073.31, the amount of said bonds, holding them to be legal and valid bonds, and enforceable by action against the town.

      Henderson c& Wentworth, for the appellant.

      Gary <& Jewell, for the respondent.
   E. Dab win Smith, J.:

The circuit judge, we think, correctly held that the bonds in suit were valid obligations against the defendants. These bonds were payable to bearer and are valid commercial instruments, and, it appearing that the plaintiff was a bona fide holder of them, for value, and, as they appeared on their face to be issued in pursuance of the express authority of the legislature, they were not open to any defense in respect to their validity, within the case of St. Joseph Township v. Rogers.

As it is stated in the points of the appellant’s counsel, that neither the town, nor officers, nor the board of supervisors, controverted or disputed this claim, nothing is really presented for our consideration, but the single question whether the remedy of the plaintiff for the recovery of said bonds, was by action or mandamus. The judge at Special Term, held that the plaintiff could maintain this action, and gave judgment therein, accordingly.

The towns of this State are invested, to a certain extent, with the rights and duties of a corporation, and may sue and be sued in the manner prescribed by law.

They may sue to enforce corporate rights, and be sued for the enforcement of their corporate liabilities, when the assertion of such rights, or the enforcement of such duties, shall require such a proceeding. It is undoubtedly true, that, in respect to all that class of claims, accounts or demands against a town, which come within the scope of the powers and duties conferred upon the board of town auditors, to examine, settle, adjust and allow, no action at law will lie against the town; certainly not until they become fixed, recognized and admitted debts. The case of Bell v. The Town of Esopus asserts this doctrine, and I think the court in that case did not intend to assert any other. That case should be limited to the large class of unliquidated charges against towns, which rest in claim and demand, until passed upon, audited and adjusted by some lawful authority. All such claims may be properly termed claims arising upon contract, and for which an action will not lie, within the intent and meaning of that case. But, clearly, the rule of that case does not apply to settled and admitted debts, resting on bond or upon other adjusted, liquidated admission or obligation binding on the towns. In such cases, the preliminary stages, as in this, of dispute, contestation and settlement and adjustment, have all been duly passed.

The bonds in this action are the clear, undisputed, liquidated debts of the town, and we have no doubt that the action was properly brought thereupon, as held by the judge at the circuit, and was rightfully sustained, within the cases of Brown v. The Town of Canton, Hathaway v. The Town of Homer, St. Joseph Township v. Rogers and Northrup v. Town of Pittsfield.

The repeal of the act of 1869, by chapter 21 of the Laws of 1873, could not take away or affect the plaintiff’s vested rights, as a Iona fide purchaser of these bonds.

The judgment should be affirmed.

Present—Mullht, P. J., Smith and Gilbert, JJ.

Judgment affirmed.

       16 Wallace, 644.

       1 Rev. Stat., 337, sec. 1.

       Lorrilard v. Town of Monroe, 11 N. Y., 394.

       49 Barb., 506.

         4 Lansing, 418.

       5 Lansing, 273.

       16 Wallace, 645.

       2 N. Y Sup. Ct., 108.


author: E. Darwin Smith, J.:

text:
    HOSEA CRANDALL, Appellant, v. ALBERT W. SCHROEPPEL, Respondent.

      Promissory note — real party in interest—right of party paying, to lime note surrendered or canceled.

    This action was brought on a promissory note; made by the defendant, payable to the plaintiff or bearer. At the trial, the note was produced by a witness, who claimed to own it as administrator of an estate, while the plaintiff testified that ne owned the note, and that it had never been transferred or paid. Held, that the plaintiff was not entitled to recover, as he had not possession of the note, and it was not lost.
    A party paying a promissory note, or negotiable bill, is entitled to the delivery of such note or bill, on payment, or its production, that it may be discharged or destroyed in his presence.

      Van Alstyne v. The National Commercial Bank of Albany (7 Transcript Appeals, 241) followed.
    Appeal from a judgment of the County Court of Onondaga county, reversing a judgment of a justice of the peace, in favor of the plaintiff.
    The action was upon a promissory note, made by defendant to plaintiff as payee or bearer. At the trial, the note was produced by a witness, who claipied to own it as administrator of an estate, and plaintiff then testified that he owned the note, had never transferred it, and that it had not been paid. The justice gave judgment for the plaintiff, for the amount remaining unpaid on the note, and the defendant appealed to the County Court, where the judgment was reversed.

      I. D. Garfield, for the appellant.

      William G. Ruger, for the respondent.
   E. Darwin Smith, J.:

None of the grounds of error, stated in the notice of appeal served upon the justice, are sufficient to raise any question for review, according to the cases of Delong v. Brainard and Nolan v. Page, except the ground that the justice erred in denying the motion for a nonsuit, made by the defendant at the trial.

This specification was, I think, sufficient to raise the question presented on the motion for a nonsuit before the justice. The ground of error, thus stated, must be deemed to refer to the grounds stated and urged on the motion for the nonsuit. One ground stated for such motion, was, that the note, upon which the action was brought, is now held by the administrators of Charles Crandall, deceased, and they claimed to own the same, and, from the facts proved, they are the owners.

The County Court doubtless reversed the judgment of the justice on tins ground, it appearing that the note was negotiable, being payable to the plaintiff or bearer, and was in the hands of the administrators named, who claimed title to it, and produced it at the trial under protest, claiming to own it. Upon these facts appearing, I think the plaintiff should have been nonsuited. He had not possession of the note, and it was not lost. A party paying a promissory note, or negotiable bill, is entitled to the delivery of such note or bill, on payment, or its production, that it may be discharged or destroyed in his presence.

It was held in Freeman v. Boynton that a demand of payment of a promissory note of the maker, with the view to charge the indorser, was not good, because the person” making the demand, had not the note with him to deliver it up on receiving payment. Judge Parker, in the opinion, said: “ The debtor may well refuse to pay, on the ground that he has a right to have his obligation or contract, or to see it canceled, when he is called upon to discharge it; and this rule should especially apply to negotiable securities.”

The judgment rendered by the justice, did not necessarily extinguish this note, for the plaintiff could not produce it to the justice for cancellation, or give a valid discharge of it, which would have protected the defendant from another suit, and judgment upon it, by the holder ; nor would the payment of the judgment, rendered by the justice, have that effect. The title to the note could not be judicially settled in this suit, because the administrators of Charles Crandall are not parties to the action, and could not be bound by any decision of the justice on that point; nor could the plaintiff by his own testimony establish his title to the note, as against such administrators.

The case of Van Alstyne v. The National Commercial Bank of Albany, in principle, I think, settles this question.

That was an action upon a draft, against the drawers, held adversely, as with the note in this case. The Court of Appeals held that the plaintiff could not recover without the .production of the draft at the trial, and could not. throw upon the bank the burden of litigation between the conflicting parties claiming such draft, and could not recover upon it as a lost draft.

The judgment of the County Court, reversing that of the justice, should be affirmed.

Present—Mullin, P. J., Smith and Gilbert, JJ.

Judgment affirmed.

       1 N. Y. Supreme Court, 1.

       Addenda in N. Y. Sup. Ct. R., p. 2.

         Bank of Utica v. Smith, 18 Johns., 240.

       7 Mass., 486.

       7 Transcript Reports of the Court of Appeals, p. 241.


author: E. Daewin- Smith, J.:.

text:
    ENOS T. SIMPSON and another, Executors, etc., Respondents, v. ESTHER ENGLISH and others, Appellants.

      WiU — comto'uction of— Accumulation — dweetions for — when void.

    The ninth clause of the will of the plaintiff’s testator, was as follows: “I further bequeath to my children, after paying all the above legacies and my just debts, all interest that may accrue on the balance of my estate, to be divided between them at the age of forty years, to hold for their natural lives and then to be divided between their heirs.” Held, that the provision for the accumulation of the income of the estate was void, as it extended beyond the minority of the children; and held further, that the provision could not be held void in so far as it required the accumulation to extend beyond the minorities of the respective children, and effect be given to the residue, for the reason that it provided for a suspension of the power of alienation' for more than two lives in being at the time of the creation of the estate.
    Appeal from a judgment, entered upon the trial of this action at Special Term.

      The action was brought by the executors of Myron J. English, deceased, to obtain a judicial construction of his will. The only question before the court, was as to the validity of the ninth item of the will, which is given in full in the opinion of the court.

      JET. B. Selden, for the appellants.

      Holmes, Thompson & Spencer, for the respondents.
   E. Daewin- Smith, J.:.

The cardinal rule in the construction of wills, is to seek the intention of the testator, and give effect to such intention, if not inconsistent with the rules of law.

The difficulty and doubt in respect to the will of the testator in this case, relates to the section or provision of said will, numbered therein as ninthly, which is as follows : “ I further bequeath to my children, after paying all the above legacies and my just debts, all interest that may accrue on the balance of my estate, to be divided between them at the age of forty years, to hold for their natural lives and then to be divided between their heirs.” The testator left three children, which, at his decease, were under age, all of whom appear and answer in this action, by guardian ad litem,, by answer dated May 3d, 1873. The learned judge who tried this cause at Special Term, held, that all the residuary estate and interest, remaining after paying debts, annuities, legacies and bequests, referred to in said ninth clause of the will, vested in the said testator’s said three children, upon his death, as tenants in common, each having an undivided third part thereof, for his or her natural life, and no more, with remainders over to the heirs-at-law of such children, respectively. If this be so, and these children took any present estate under said will, it was subject to a power in trust in the executors, to control the property and receive the rents and profits thereof, and to accumulate' the same till the said children should arrive at the age of forty years, when the amount or balance of such increased accumulation, was to be divided between them, and they were thereafter to' receive such increase during their natural lives, and, upon their decease, the remainder was to go to their heirs, and was to be divided between them. This was the clear intent of this provision of the will. This provision for the accumulation of the income of such estate, was clearly void beyond the majority of said children, respectively, under the provisions of sections 37 and 38, of article 1st, chapter 1, part 2, of the Revised Statutes, page 726. This provision for the accumulation of the income of the estate, might be held void after the said children respectively arrived at their majority, and effect given to the residue of the will, except that the suspension of the power of alienation of said estate, would then be for more than two lives in being at the time of the creation of such estate, which would make this clause of the will void, within the provisions of sections 13, Id and 15, of said title and chapter of said statute, and the absolute ownership of such estate, if personal, within section 1, title d of said statute, page 773. This provision of the will was therefore clearly void, and must be so declared, and the judgment at Special Term, so far as it holds otherwise, should be reversed. Regarding this residuary clause of the will as void, there is nothing in the will to charge upon the real estate, embraced in such residuary clause, the payment of the legacies contained therein. The personal estate is the proper fund for the payment of debts and legacies, and no power can be implied in the executors to sell the real estate.

The judgment of the Special Term should therefore be modified in conformity with these views.

Present—Mullin, P. J., Smith and Gilbert, JJ.

Judgment modified accordingly.

       Parks v. Parks, 9 Paige, 117.

       Knox v. Jones, 47 N. Y., 390.

       Myers v. Eddy, 47 Barb., 263; Lupton v. Lupton, 2 John. Ch., 614.

        Vide Matter of the Will of Fox, 52 N. Y., 530.