author: Learned, P. J.: Landon, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. PETER CLARK, Jr., Appellant.

      Third cousins cure related in the eighth degree — incompetent as jurors — Code of Criminal Procedure, sec. 377.
    Third cousins are related in the eighth degree; and as consanguinity within the ninth degree is ground of challenge to a juror, a juror is not competent to sit upon a jury in a criminal case in which his third cousin is the complainant.
    Appeal by the defendant Peter Clark, Jr., from a judgment of the Washington County Court of Sessions, entered in the clerk’s office of said county on the 13th day of April, 1891, affirming a judgment convicting him, upon the verdict of a jury in a Justice’s Court, of selling intoxicating liquors without a license.

      A. D. Arnold, for the appellant.

      Edgar Hull and W. Ma/rUn Jones, for the respondent.
   Learned, P. J.:

A juror when called was challenged for implied bias. (Code of Criminal Procedure, § 377.) Being sworn he testified that he was related to the complainant, but was not nearer than third or fourth cousin.

Consanguinity with the complainant within the ninth deegree is a good ground for challenge. The children of brothers and sisters are first cousins to each other, otherwise called cousins-german or simply cousins. The children of first cousins are second cousins to each other. The children of second cousins are third cousins to each other. The child of a first cousin is a first cousin once removed to his father’s (or mother’s) cousin. So the child of a second cousin is a second cousin once removed to his father’s (or mother’s cousin). But the child of a first cousin is sometimes loosely called a second cousin to his father’s (or mother’s) cousin. This is accurately stated in the Century Dictionary sub voce cousin.

In the civil law first cousins were consobrini oonsobrinm; second cousins, sobrini sobrinm. (Dirksen Mcmuale, Latinitatis Fontium.) The son or daughter of a first cousin was proprior sobrino, jproprior sobrinm; nearer than a second cousin, the exact equivalent being a first cousin once removed. (Just. Inst, by Sanders, III, 6,5.) Third cousins, then, have a common great' great grandfather. The mode of computation of degrees used by the civilians, not by the canonists, is to count from one person up to the common ancestor and down to the other. Of course the person from whom the count begins is not counted, and he in whom it ends is. (See 2 Blackstone’s Comm, p. 207, note 6, and table of consanguinity.) The rule given in section 46, Code of Civil Procedure, although differently expressed, is the same in result.' It will be seen, therefore, that third cousins are in the eighth degree to each other. For although, as to inheritance, the common law adopted the rule of the canon law (2 Black. Comm.), yet the rule of the civilians prevailed in ecclesiastical law and in the matter of distribution of estates, (Sweezey v. Willis, 1 Bradf., 495.)

The judgment and conviction should be reversed.

Landon, J.:

Concurring in the opinion of the presiding justice, I desire to add that the recent provision of the Code of Civil Procedure, prescribing the method of computing the degrees of consanguinity and affinity of judges and jurors in civil cases, sections 46, 1166, was doubtless intended to dispel an existing obscurity in that respect, and although it does not in terms apply to criminal cases, yet we may adopt a familiar rule applicable to remedial legislation and extend its provisions to like cases within its spirit and intention, although not strictly within its letter, and thus apply this method of computation to criminal cases. In this view my brethren concur. The judgment must be reversed. We might order a new trial (Code of Criminal Procedure, §§ 76í, 772), but we doubt whether it would be useful in this case.

Mayham, J., concurred.

Judgment and conviction reversed.


source: Caselaw Access Project

author: Learned, P. J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. NELLIE A. CRONIN, Respondent, v. JAMES W. COFFEY, Comptroller of the City of Troy, Appellant.

      Public schools in the city of Troy — salary of teachers — ■ the hom'd of school commissioners nmy employ its appropriation as it deems best- — -Laws of 1873, chap. 126, sec. 14; Laws of 1887, chap. 6, sea. 4.
    It is provided by the Laws of 1887 (chap. 6, § 4) that it shall not be lawful for any officer, board or department in the city of Troy to make a contract for work or supplies, which by its terms involves an expenditure in excess of the amount which has been estimated and allowed said board in the annual estimates, nor shall its board of school commissioners enter into any contract to hire school teachers which by its terms is not lo be performed within the fiscal year.
    A board of school commissioners employed teachers for one year at a salary, larger than that contemplated by the city estimates, by a resolution which read: ‘ ‘ Provided there be sufficient money properly set apart to pay them for that period;, and if there be not sufficient money for that purpose for such portion of that period, as the money so set apart shall be sufficient.”
    Upon an application made by a teacher for a peremptory mandamus to compel payment of her salary:

      Held, that the mandamus should issue.
    That the statute of 1887 had left it discretionary with the board how it should employ its funds; and that even if the payment of a higher salary might shorten the teacher’s time of service and result in an earlier closing of the school, this was a matter which the city comptroller could not regulate.
    That it was error, therefore, for him to refuse to countersign the order for such a salary.
    Appeal by the defendant James W- Coffey, comptroller of the city of Troy, from an order, entered in tlie office of the clerk of tbe county of Rensselaer on the 3d day of July, 1891, directing that a writ of peremptory mandamus issue directed to him and requiring liim to countersign a draft or order upon the chamberlain of said city for the payment to the relator of her salary as a school teacher of said city for one month.

      William, J. Boche, for the appellant.

      Warren, Patterson & Gambell, for the respondent.
   Learned, P. J.:

This is an appeal from an order directing the issue of a peremptory mandamus.

At the regular meeting-of the school commissioners of Troy, held February 27, 1891, a resolution was passed that certain teachers,, naming them, be elected from March 1, 1891, to March 1, 1892,, “ provided there be sufficient money -properly set apart to pay them for that period, a'nd if there be not sufficient money for that purpose, for such portion of that period as the money so set apart shall be sufficient.” Under that resolution the relator was appointed third assistant in the intermediate department of School No. 10. Her salary was, at thé same meeting, made sixty dollars per month. She served as such assistant the month of April, and duly presented lier bill for payment. This was properly audited by the board, and a draft on the chamberlain for the amount was duly issued. It is necessary that the comptroller should countersign the warrant, and this he refuses to do.

The ground of his refusal is as follows: On the 5th of February, 1891, the common council, having previously received the comptroller’s estimate of the amount of money necessary to carry on the city government for the ensuing year, made the regular appropriations. Among these the common council appropriated for the board of school commissioners, among other specific items, “for salaries of superintendent, clerk, messenger and teachers, and allowance to orphan asylums, in addition to income from non-resident pupils, $105,350.” ’

In making up this estimate, thus adopted by the common council, the comptroller had estimated "the various salaries at the amount paid the previous year, as for a full school year. The board of school commissioners, at the aforesaid meeting, increased many of these salaries, among them that of the office held by the relator, which the board increased from fifty dollars to sixty dollars. If such increased salaries should be paid for the full school year, they would be in excess of the amount appropriated as above stated. The board, it is claimed, is prohibited from incurring debts beyond that amount. Hence it is said that it would be necessary to close the schools when the appropriation should be exhausted, and that that would be before the end of the ordinary school terms. The total increase thus made by the board is about eleven thousand •dollars.

There are two questions of importance in this case which might be considered. The first is whether the Board of school commissioners is limited in making its contracts so that it may not exceed the amount previously appropriated by the common council.

The second is, if the board does not exceed that amount, whether it may make contracts for teachers, etc., at its discretion, etc., provided they are to be performed within the current fiscal year.

We will consider the second question, because that only is necessarily presented here. The board of school commissioners has not as yet exceeded the amount appropriated by* the common council. Nor does it necessarily follow from its action in respect to the relator that it will do so. Its action contained a proviso that there should be sufficient money set apart to pay the teachers for the whole year, and if not, then the appointment was only for such ptortion of the time as the money was sufficient for.

It is not disunited that this board has the authority to contract with teachers and employ them and to pay their wages. (Laws of 1873, chap. 126, § 14.) A restriction is, perhaps, placed on the board by the Laws of 1887 (chajo. 6, § 4). That restriction, assuming that it applies, forbids the board from exceeding the amount “ estimated and allowed ” by the board of estimate. But the resolution of the board under consideration seems to have regard to that resolution and to avoid violating it.

Within that restriction it seems to us that the statute has left the matter discretionary with the board. If the board decides that it is best to use the money which is within its control by employing teachers at higher wages and for a shorter term than had been in the previous year, it cannot be that the comptroller may reverse their action. His position is, that, inasmuch as the estimate made by him, and adopted by the common council, was made on the basis of so many teachers for so many weeks at such salaries, therefore, the board of school commissioners could not contract for fewer weeks and for higher prices. This would give the comptroller power to regulate the action of the board.

The comptroller argues forcibly that if this board can lawfully act as they have done, then the fire commissioners might so increase the salaries of their employees, that the money set apart for the fire department would be exhausted in ten months and the city left defenseless against fire for the remaining two of the year. There are, undoubtedly, some difficulties which may arise under the plan • of government of the city of Troy. When money has been appropriated in a general way for salaries, or for any other class of expenses, it seems necessary that some officer or some board should make the specific application. -That duty is not intrusted to the comptroller. In this branch of the government it is intrusted to this board. Hntil they attempt to draw drafts beyond the amount appropriated, or to apply the money to unlawful purposes, it seems necessary that the board should use its discretion. We cannot remedy any suggested difficulties by depriving the board of school commissioners of the power given them to make contracts for teachers. This power necessarily means that they may agree upon the salaries. And when the. teacher has done the work under such agreement he is entitled to his pay. That is the case before us. And, unless we deny the power of the board, the relator has earned the salary agreed upon.

The position taken by the comptroller, if sustained, would authorize him to refuse to countersign any draft, on the ground that, if •other drafts to a large enough amount should be issued, the money appropriated would be- exhausted. For that is really his position now. He says: If the board shall continue to issue drafts of the same amount with this and other similar drafts for the full fiscal year, there will be no money to pay them all; and, therefore, he refuses to countersign this.

As there is money in the city treasury appropriated to the payment of the salaries of teachers, we think it is not for the comptroller to say liow the board of school commissioners shall make contracts payable therefrom.

The order is affirmed, with costs.

Labdon and Mayham, JJ., concurred.

Order affirmed, with costs.


text:
    ISAAC McCONIHE, Appellant, v. GEORGE M. DERBY and Others, Respondents.

      Fraudulent convey ames — vendors, after a sale, dealing with property as their own — when the fraudulent vendee is liable to creditor's.

    The sons of one George M. Derby, being apprehensive that they were about to fail in a hotel business which they were conducting, gave to their father, to whom they were indebted at the time, a bill of sale of their stock in trade under an agreement that they might remain in possession of the property, dispose of it at, their pleasure, continue their business, and from its profits and the. sale of said property pay their creditors, other than George M.
    A few months later George 3VI. took possession under his bill of sale of what property remained, and subsequently disposed of most of it.
    In an action brought by a judgment-creditor of the sons, whose debt existed at. the time the bill of sale was executed, to set aside the same as fraudulent:

      Held, that the agreement of George M. with his sons was fraudulent as to the-creditors of the sons.
    That as George M. had taken possession of the remaining property, and sold most. of it, he was liable to that extent to the creditors of his sons.

      Semble, that if it had been agreed that the moneys received by the sons upon any sales, made by them should beat once applied upon their debt to their father, the agreement might have been valid, although such moneys were not paid over to him.
    Appeal by the plaintiff Isaac McConihe from a judgment, entered,, upon the verdict of a jury, in the office of the clerk of Clinton county on the 12th day of February, 1890, dismissing the complaint, as to the defendants, George M. and Charles C. Derby, separately, with costs to each, after a trial at the Clinton Circuit before the court and a jury, with notice of an intention to bring up for review upon such appeal the order directing the entry of such judgment.

      Riley c& Oonway, for the appellant.
    Beckwith, Barnard c6 Wheeler and W. L. Rattison, for the respondent Charles C. Derby.

      O. II. Beckwith, for George M. Derby, respondent.
   Learned, P. J.:

This is an appeal by the plaintiff from a judgment in favor of the defendants. The action was brought by a judgment-creditor to set aside a bill of sale of personal property as fraudulent and void. The case came on for trial at-a Circuit Court and a jury wasimpanneled. The court submitted to the jury the question whether the bill of sale was made with intent to defraud creditors. The jury answered in the negative and the court adopted the finding' and found other facts.

Charles and Frank Derby were carrying on a hotel on the 10th of July, 1886, and were in possession of goods and chattels consisting generally of the hotel, furniture, table articles, liquors, cigars, provisions, horses and wagons, worth about $1,400. They Owed the plaintiff about $252, and their father George M. Derby about-$1,400, and he was their indorser for about $1,000. At this time they were threatened with insolvency and they executed to their father a bill of sale of all the said goods and chattels and gave him a mortgage on real estate for $500. At the time of executing said bill of sale it was agreed between George M. and said Charles and Frank that they, Charles and Frank, should remain in the possession and management of said property, and sell and dispose of it at their pleasure, and continue the hotel business, and -from the avails of sales and profits of the hotel business they should pay on their’ indebtedness, other than such as they owed said George M. The said Charles and Frank did continue in possession of this present property, handling it as part of the hotel business, down to the time of the auction sale in October, and sold to whom they chose any part of it. This was with the consent of George M. George M. took the bill of sale as security, and because he was afraid his sons could not pull through as he states. He made no assertion of ownership until the time of the auction sale. On August 6, 1886, Frank sold out to Charles, and Charles continued the business until the auction sale. On the 6th of October, 1886, George M. took possession of the property, or such of it as remained, and caused it, or the principal part of it, to be sold at auction. According to the testimony of Charles everything wras sold at the auction sale, except the whisky, the cigars and the horse. In one part of his testimony he says, also, that the pool table w^as not sold at the auction. But evidently George M. took possession of everything which remained. The whisky was rolled over to Mr. Stackpole’s store, on storage, after the auction, and some' of it was afterwards taken from that place by Charles.

The plaintiff recovered a judgment against Charles and Frank January 22, 1888, for the aforesaid indebtedness,. existing at the time of the bill of sale, and issued execution thereon, which was returned unsatisfied June 9, 1888.

¥e suppose the principle is settled that where, at the time of the execution of a chattel mortgage, it is agreed between the parties that the mortgagor may go on and sell the stock and use the proceeds generally in his business, the transaction is fraudulent in law as against creditors of the mortgagor. (Southard v. Benner, 72 N. Y., 424.) And such an agreement may be inferred from the acts of the mortgagor in selling the property and applying the avails to his use with knowledge of the mortgagee. (Potts v. Hart, 99 N. Y., 168.) It is true, as held in Brackett v. Harvey (91 N. Y., 214), that an agreement that the mortgagor may sell the property and apply the avails on the mortgage debt is valid. But that was not the agreement in this case. It was not understood that the avails of the goods sold should be applied on George M. Derby’s debt. If that had been the agreement, then such avails would have been deemed to have been received by the mortgagee and would be applied on his debt, although they were not actually paid over to him. (Conkling v. Shelley, 28 N. Y., 360, and Brackett v. Harvey, ut supra.)

But where the agreement is that the mortgagoi’s shall go on with their business, selling as they choose, and paying debts as they choose, there, plainly, the transaction is a fraud on creditors. And in this case there is the additional fact that there was no change of possession, but Charles and Frank continued to manage and control the business as before.

In this case the defendants claim that the bill of sale was valid, because the agreement was that the vendors should sell the property in their ordinary business and pay debts other than that of the vendors. But that agreement cannot be upheld. If the agreement had been that the avails of sales were to be applied on the debts of George M., then every sale would have reduced his debt so much, whether he had received the avails or not. (Conkling v. Shelley, ut supra.) But not so as to other creditors. They had not made the vendors their agents to sell the property. And this bill of sale prevented these creditor^ from collecting their debts out of the property. In fact, it was a complete'scheme to permit Charles and Frank to do business without paying their debts, and to put their property where no creditor could reach It, whether or not the parties understood its effect.

Defendants claim that plaintiff cannot recover because he did not show that some of the property or its proceeds was in the possession of George M. when plaintiff recovered judgment. They rely on the principle that when there has been a sale, fraudulent as to creditors, the vendee may return to the vendor the property, and thus escape any liability thereafter. (Cramer v. Blood, 51 Barb., 155.) The case of Murphy v. Briggs (89 N. Y., 419) turns largely on the recording statute. -

There may be cases where this principle and others analogous will apply. For instance, if a general assignment for the benefit of creditors is declared fraudulent, the assignee would be credited for payments made by him prior to the action in which the fraud is declared. But the present case is quite different. Here there was no change of possession. The bill of sale is, therefore, presumed fraudulent. On the facts proven, it must be held that that presumption was not overcome. (’2 R..S., m. p. 136, § 5 ; Southard v. Benner, ut supra.) The creditors include all persons who are creditors at any time while the goods were in the assignor’s possession. (Sec. 6.) But such creditors cannot bring an action to set aside the bill of sale until after judgment and execution. Therefore, this plaintiff is a defrauded creditor and may pursue this property. George M. Derby was a party to the fraud. He has never relinquished the rights he claimed to get by the bill of sale. He has never rescinded that bill of sale, or surrendered to the vendors his rights under it. He took possession of the residue of the property by virtue of such bill of sale, and sold part of it by the same authority. He applied the avails on his own debt owing from Charles and Frank, or in payment of money borrowed by him and lent to them. He cannot be permitted to retain the benefit of his illegal t2’ansaction. (Stimson v. Wrigley, 86 N. Y., 337; Dutcher v. Swartwood, 15 Hun, 34; Goold Co. v. Maheady, 38 id., 294 ; Murtha v. Curley, 90 N. Y., 372; Loos v. Wilkinson, 113 id., 485.)

There are some articles which it is said that Charles and Frank ■did not own, because they were purchased conditionally and had not been paid for, and it is stated that these were taken by the persons who sold them. If this is so, of course George M. would not be liable for these. But as to all the property of Charles and Frank, of which George M. took possession about the time of the •■auction sale, we think he is liable and should account, whether he has sold the same or not.

The judgment should be reversed, new trial granted, costs to .abide event.

Landon and Math am, JJ., concurred.

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


author: Learned, P. J.;

text:
    THOMAS J. HAGADORN, Appellant, v. JOHN W. HART, as Sheriff of the County of Albany, and Others, Respondents.

      Equity — a deficiency judgment cannot be used to the injw'y of qyi'ior judgment-creditors —set-off by an executoragainst a devisee, of a debt due his testator — a debt not in judgment cannot, as against creditors of the devisee, be so set off.

    •One Jolm Hagadorn died in 1885 and left a will by which he devised certain prem_ ises to his wife and two minor children. By the residuary clause of the will he left the rest of his property to his two sons, Thomas J. and Wilbur S.
    'The testator, at the time of his death, held four mortgages on property in Schuyler county belonging to Wilbur S., upon the first one of which only Wilbur S. was personally liable.
    John Hagadorn had no debts. His executor foreclosed these mortgages, and although the proceeds of sale would have satisfied the first mortgage they were, in fact, applied to the payment of the others, and the executor obtained a deficiency judgment upon the first mortgage, und'er which he sold to Thomas J. lands in Albany county which had passed to Wilbur S. under the residuary clause of his father’s will. Judgment-creditors of Wilbur S., prior in time to the deficiency judgment, having attempted to sell the interest of Wilbur S. in the Albany county lands, this action was brought by Thomas J. to restrain them from so doing.

      Held, that the action could not be maintained.

      That the judgments of the creditors of Wilbur S. had a preference both in law and in equity.
    That whatever might be the reason for applying the proceeds of the sale realized upon the foreclosure of the four mortgages in the manner stated, neither Wilbur S. nor the executor of John Hagadorn could use the deficiency judgment to defeat the claims of the creditors of Wilbur S,
    That as John Hagadorn had no debts one-half of the four mortgages would have passed under the will to Wilbur S., and hence no reason existed for the foreclosure.
    That the case was not similar to the position of an executor who attempts to set off a debt due his testator against a legacy under his will; that if the executor had such a right, he had not transferred it to Thomas J.
    That a debt, not in judgment, due to a testator at his death from a devisee, was not a lien on the land devised as against a judgment recovered against such devisee.
    Appeal by the plaintiff Thomas J. Hagadorn from a judgment of the Supreme Court, entered in the office of the clerk of Albany county on the 6th day of February, 1891, dismissing the complaint and dissolving a preliminary injunction after a trial at the Albany Circuit by the court, with notice 'of an intention to bring up for review upon such appeal the exceptions to the findings of fact, the exceptions to refusals to find facts, the exceptions to the findings of law, and the exceptions to refusals to find conclusions of law.

      J. H. Glute, for the appellant.
    TT. L. Norton, for the respondents.
   Learned, P. J.;

This is an appeal by the plaintiff from a judgment dismissing the complaint on the merits upon a trial before the court without a jury. The action was brought to restrain the sale of certain premises under two executions against Wilbur S. Hagadorn, in the hands of the defendant Hart, as sheriff of Albany county. The plaintiffs in the judgments in which the executions were issued are parties defendant.

John Hagadorn died March 8, 1885, having previously made his will. By this will, after a devise to his wife for her use and for the benefit of two minor children, he gave and devised all the rest of his property, after payment of debts, to his two sons, Wilbur S. .Hagadorn and Thomas J. Hagadorn, the present plaintiff, to be equally divided between them, share and share alike. The testator was seized in fee at Ms death of the premises described in the complaint situated in Albany county. These are not the premises devised to the wife. They passed under the residuary clause above-mentioned to Wilbur S. and Thomas J. The two judgments above-mentioned were duly recovered and were docketed in Albany county, one on February 19, 1886, the other on February 23, 1886.

John Hagadorn at the time of his death held four mortgages on a farm belonging to Wilbur S. Hagadorn in Schuyler county. These were foreclosed by Tanner, the executor of John Hagadorn’s will, and a judgment of foreclosure was entered June 22, 1886, for $20,002.75. The premises were sold under that judgment October 15, 1886, for $7,250. Wilbur S. was personally liable only on the first of these four mortgages, and a judgment for deficiency was entered against him in that action in favor of the executor for $6,823.25 the amount of that first mortgage, which judgment was docketed in Albany county November 22, 1886. Thus the avails of the foreclosure sale must have been, in some unexplained way, applied to the mortgages other than the first. No reason for this is given. On that judgment for deficiency the executor issued an execution, and by virtue thereof the sheriff of Albany county on the 13th of January, 1887, sold the interest of Wilbur S. in the premises described in the complaint for about $3,000 to Thomas J. Hagadorn, the present plaintiff. A. sheriff’s deed of the interest of Wilbur S. in said premises was duly executed to the present plaintiff, and was recorded July 7, 1888, and the present plaintiff went into possession. The sheriff returned said execution satisfied as to $3,008.4:5 and unsatisfied as to $3,814:.85, which last sum remains unpaid. The present plaintiff now seeks to prevent the judgment-creditors aforesaid of Wilbur S. from selling the interest of Wilbur S. in said premises on their execution, although their judgments were docketed several months prior to the docketing of the judgment under which he obtained his title. The plaintiff’s claim is that the judgment in favor of the executor of John Hagadorn had a preference in equity, so far as effects any property which came to Wilbur S. from the estate of said John.

The plaintiff seeks to establish a priority contrary to the statute on the ground of equity. One objection to this arises on the very judgment under which plaintiff claims. There were four mortgages on the same property; all foreclosed in the same action; Wilbur S. was liable personally only on' the first. The avails of the foreclosure sale were, of course, first applicable on the earliest mortgage. So applied, there could have been no deficiency against him. By what right the avails were otherwise applied, we do not see. If by Wilbur’s consent, then he consented to a judgment against himself when there was no indebtedness. It would be inequitable that he or the executor should use such a judgment as an equitable ground of depriving honest creditors of tlieir legal liens! The transaction may have been intended for sortie such purpose.

There is another difficulty. It does not appear that John Ilagadorn owed any debts. If this were so, then, on a division of the residue of the estate, one-lialf of the mortgages held by the estate against Wilbur’s farm would go to Wilbur himself. The same would be true if there had been enough other property to pay the debts. Why, therefore, a foreclosure should have been had is not apparent. But it is urged by the plaintiff that the interests of Wilbur S. in the land inherited are subject to the debt owing by him to the estate. We have already seen that there was no valid debt owing by him to the estate after the foreclosure sale. And even if there were, the plaintiff bought, according to his own position, only Wilbur’s interests in the land. That is just what the defendant’s judgment-creditors desire to sell. And they have the prior liens. The plaintiff is no better off than any other judgment-creditor. He does not stand in the position of the executor, attempting to set off a debt against a legacy. If the executor had any such right, he did not transfer it when he sold, under judgment and execution, all the interests of Wilbur S.

The plaintiff cites the well-known doctrine that a debt due the testator from a legatee is to be applied in satisfaction, so far as may be, of the legacy. But that has no application here. The executor held a claim against Wilbur S. to the amount of the first mortgage. He did, not attempt to set that debt off against any legacy. On the' contrary, he collected the debt and received full payment by the foreclosure sale. There was then nothing to set off. And even if the plaintiff urges that the judgment of deficiency, improperly obtained, shows a debt owing by Wilbur S. to the estate, which may still be set off against Wilbur’s share in the devised land, still the plaintiff, as the purchaser on the sale under the judgment, has no right to insist on this set-off as against other judgment-creditors, intending to sell the same land and having prior liens thereon.

We are not here to consider any possible questions between Thomas J. Hagadorn, as devisee of an undivided interest in the testator, and Wilbur S., or some person who may have acquired Wilbur’s undivided interest in the same land. That is not before us. We may, however, refer to the case of Smith v. Kearney (2 Barb. Ch., 533, 549). There it was held, that while the right of the executor is well settled to retain part or the whole of a legacy, in discharge of a debt owing from the legatee, yet that this rule did not apply to the proceeds of real estate descended to the debtor .from the creditor. The real estate in that case was not converted into personal by the will of the testator. Its conversion was accidental. Much more strongly, then, it might be said that the rule did not apply to real estate not converted at all. But, as above ■stated, that question is not before us. The plaintiff insists that a debt not in judgment, owing the testator at his death from one of the devisees, is a lien on the devise as against a judgment recovered against the devisee. We see no authority for such a doctrine. The title to land devised or descended passes at once to the devisee or heir. It becomes subject to judgments recovered against the devisee or heir for his debts, and such judgments take priority according to the time of docketing. The case of Pierce v. Alsop (3 Barb. Ch., 184) is quite similar in principle to the present case and sustains the views we have above stated.

The judgment must be affirmed, with costs.

T,andón and Mayham, JJ., concurred.

Judgment affirmed, with costs.


author: Learned, P. J.: Landon, J.

text:
    MARY T. COLLIER, Respondent, v. EMELINE MILLER, and EMELINE MILLER and Another, as Executors of ALLEN S. MILLER, Deceased, Appellants, Impleaded with Others, Respondents.

      Mortgages — a verbal agreement without consideration, as to the prioi'ity of one of two ■mortgages, enforced against a subsequent assignee — it is a collateral agreement — laches — judgment for a deficiency.

    Richard Miller and Harvey Miller being equal owners of certain premises, and being about to sell them to one Stupplebeen, agreed that of two bonds and mortgages, each of $4,000, to be taken by them upon such sale, the mortgage to be taken by Harvey should he a prior lien. Besides said mortgages Stupplebeen paid to the grantors $6,000 in cash. In pursuance of such agreement, not made upon a valuable consideration, the mortgage to Harvey was recorded first and at once, the mortgage to Richard the next day.
    At the time of making said agreement it was the intention of Richard, as Harvey knew, to' transfer his mortgage to one Wise, from whom Richard was about to purchase a farm. This transfer was afterwards made, the agreement as to priority not being disclosed to Wise, except as the record disclosed it. Wise, at the time he took his mortgage, believed it to be of equal lien with the one held by Harvey.
    Stupplebeen was present when Harvey and Richard made their agreement and did not object to it. Wise held the mortgage about nine months, and his assignees for seventeen years.
    In an action brought by Wise’s assignee for the foreclosure of this mortgage:

      Meld, that the agreement as to priority was valid and must be sustained.
    (Landon, J., dissenting.
    That said agreement was a collateral one and was not merged in the first mortgage.
    That the facts did not show that Wise was defrauded thereby; and that if he were, the lapse of more than seventeen years made his demand stale. (Landon, J , dissenting.)
    That as the contract between' Wise and Richard was not proved, it was impossible for the court to say that the contract-gave Wise any specific rights or equities in regard to the mortgage assigned to him
    That as one Miller, upon assigning the mortgage to the plaintiff, had guaranteed its payment, and as Miller’s estate was solvent and had never been discharged from liability, and as his widow had received a large share of his estate, it was proper that both the estate and the widow should he declared liable for any deficiency which might occur upon the sale, the widow to the amount of the assets received by her.
    Appeals by the defendants, Emeline Miller and Reuben Miller, as executrix and executor of Allen S. Miller, deceased, and by Emeline Miller, individually, from so much of a judgment, entered, after a trial at the Columbia Circuit before the court and a jury, in the. office of the clerk of the county of Columbia on the 14th day of January, 1891, as ordered and adjudged “that the mortgages executed by Martin H. Stupplebeen to said Harvey Miller (being the said mortgage owned by the defendant Peter S. Anderson) is entitled to priority over the mortgage executed by the said Martin H. Stupplebeen to the said Richard Miller; ” and from so much thereof as further orders and adjudges that said defendant “Peter S. Anderson is entitled to be paid the amount thereof out of the first moneys realized from the sale of said premises, after deducting the costs of this action and the expenses of said sale;” and from so much thereof as further adjudges that the plaintiff is only entitled to be paid the amount of her mortgage out of the avails of said sale next after the said payment of said mortgage of said Peter S. Anderson, and the costs of this action and the expenses of said sale;” and from so much of said judgment as orders and adjudges that the referee “ pay to Robert E. Andrews, the attorney for the defendant Peter S. Anderson, the sum of two hundred thirty-seven and -fifiy dollars adjudged to the defendant Peter S. Anderson for his costs and disbursements in this action, with interest thereon from the date” of such judgment; and also from so much thereof as orders and adjudges that the i-eferee “ also pay to Robert E. Andrews, the attorney for the defendant Peter S. Anderson, the sum of $4,228.33 stated in said decision to be due the defendant Peter S. Anderson on the 16th day of April, 1890, together with legal interest thereon from said 16th day of April, 1890, or so much thereof as the purchase-monej7 of the mortgaged premises will pay the same, that he take a receipt therefor; ” and from so much thereof as orders and adjudges “that the amount due to the defendant Peter S. Anderson,, or upon the mortgage held by him, is entitled to be paid out of the mortgaged jmoperty before the amount due on the mortgage held by the plaintiff,” and from so much thereof as orders and adjudges “ that the mortgage held by the defendant Peter S. Anderson is entitled to priority in payment to the mortgage held by the plaintiff; ” and from so much thereof as limits the right of the plaintiff to any part of the avails of the mortgaged premises until after payment' in full of the amount due on the mortgage held by the defendant Peter S. Anderson, and from so much thereof as orders and adjudges that if the “ residue of the proceeds of said sale left, as aforesaid, after the payment above directed to be made, for the costs of this action, and interest thereon, and the fees and expenses on such .sale, and of the sum of $4,228.33 to R; E. Andrews, the attorney for the defendant Anderson, the amount stated in said decision to be due said Anderson on the 16th day of April, 1890, with the interest thereon from the said 16th day of April, 1890, be insufficient to pay the plaintiff the said sum of $4,228.33 stated in said decision to be due the plaintiff on the said 16th day of April, 1890, together with legal interest thereon from said 16th day of April, 1890, the said referee specify the amount of such deficiency in his report of sale,” and so much thereof as orders and adjudges, that the defendant “ Emeline Miller pay such deficiency to the amount of $2,623.90, the amount paid’to her under the decree of the surrogate of Columbia county out of the personal estate of Allen S. Miller, deceased, and that the plaintiff have judgment and execution therefor.”
    And from so much thereof as orders and adjudges “ that the defendant Emeline Miller pay of any deficiency to the amount of $2,623.90, and the plaintiff have judgment and execution therefor.”
    And from so much thereof as orders and adjudges “that the defendants Emeline Miller and Reuben Miller, as executrix and executor, etc., of the will of the said Allen S. Miller deceased, pay any deficiency or residue of the debt of the plaintiff remaining unsatisfied from proceeds of sale of said real estate, and from said Emeline Miller individually.”
    And from so much thereof as orders and adjudges that any of the provisions of said judgment be “ without prejudice to the plaintiff to take any proceedings which may be proper for the enforcement and collection of any deficiency -that may remain out of the legatees or the estate of the said decedent Allen S. Miller, or otherwise, and also separately from each and every part of the several provisions of said judgment herein stated, as appealed from as aforesaid.”

      William M. Brownell and Jaaób F. Miller, for the appellants.

      G. P. OolUer, for the respondents.

      B. E. Andrews and Levi F. Longley, for Peter A. Anderson,, respondent.

      E. P. Magotm, for respondents, Eugene Stupplebeen et al.

   Learned, P. J.:

Tlie plaintiff commenced the foreclosure of a mortgage. Certain defendants, Miller and others, set up that another mortgage on the same premises, held by one Anderson, not then a party, was a concurrent lien with plaintiff’s mortgage, and that Anderson should be made a party. Thereupon the plaintiff served an amended complaint setting forth the facts, and the claim of Miller and others, defendants, and averring that the plaintiff had not sufficient knowledge to form a belief whether said Anderson’s mortgage was a prior or a concurrent lien. The plaintiff made Anderson a party.

On the trial the court found that the Anderson mortgage was the prior lien. The plaintiff does not appeal. But Emeline Miller and Emeline Miller and another, executrix and executor of Allen S. Miller, do appeal. Allen S. Miller had previously held the mortgage now held by plaintiff, and had guaranteed the payment. The judgment required Emeline Miller, who, as legatee, had received a certain amount from the estate of Allen S., to make good any deficiency on the foreclosure to the extent of the amount she had received.

The two questions, then, are, first, were the two mortgages concurrent liens, or was the Anderson mortgage a prior lien ? Second. Can there be a judgment against Emeline Miller for deficiency?

The two mortgages were purchase-money mortgages, executed at the same time by one Stupplebeen; the one now held by plaintiff’ being executed to Richard Miller; the one now held by Anderson being executed to ILarvey Miller; each covering the whole property,. and each dated April 1, 1870, and payable in ten years.

The learned judge before whom the cause was tried, adopting the verdict of the jury on this point, found that on the day of the date of the said mortgages, and before the actual delivery thereof, it was agreed between said Richard and Harvey that the said mortgage executed to Harvey should be and remain the first lien on the said premises and should have priority over that executed to Richard.

The said judge further finds that, in pursuance of said agreement, the said mortgage to Harvey was immediately recorded, viz., on that day at 2.40 p. m., and that the said mortgage to Richard was-left to be subsequently recorded, and was recorded by the assignee; thereof April- 2, 1870, at 2.30 p. m.

The said judge further finds that, at the time of making the; agreement aforesaid, it was the intention of Richard to transfer the; mortgage received by him to one Arnold Wise, in part payment for a farm purchased by him of said Wise; that said Harvey knew of. said intention; that said agreement, by which Harvey’s mortgage; was to have priority, was not disclosed to said Wise, nor was said Wise informed in any way whether or not said mortgages were-equal and concurrent liens. Said Richard, on said first day of April,, assigned his said mortgage to said Wise, who took the same at its face as part payment on a farm thus conveyed by him to Richard,, and took the same believing it and the mortgage to Harvey to be-equal and concurrent liens.

No consideration was paid by Harvey to Richard for the agreement that Harvey’s mortgage should have priority. No agreement as to priority was made with Stupplebeen, the mortgagor. Stupplebeen was, however, present at the time when the agreement was. made.

The question was submitted to the jury whether the attorney for Mr. Wise was informed, after the execution of the bonds and mortgages, that they were equal liens in point of time. The jury answered in the negative and the court adopted the finding. This . question was put to raise a presumption that the said agreement between Richard and Harvey was made with intent to defraud Wise. But such intent is not shown. Stupplebeen paid more than $6,000 for the property, above the two mortgages of $4,000 each.. So that the second mortgage, in point of priority, would have been,, at that time, a good security for the amount thereof.

If the two mortgagees, before the actual delivery of the mortgages,, agreed that one should have priority over the other, that agreement-is binding and will be carried into effect, even though the mortgages, were recorded at the same time. (Jones v. Phelps, 2 Barb. Ch.,. 440.) In that case the court says that the law, in order to carry out the agreement of the parties, will presume that the mortgage which was to have priority was delivered before the other. The converse-of this principle was decided in Greene v. Warnick (64 N. Y., 220).. In that case the agreement was that the two mortgages were to be ■concurrent liens; and this agreement was enforced, although one was recorded before the other, and each had passed into the hands of a bona fide holder.” To a similar effect is Stafford v. Van Rensselaer (9 Cow., 316). So that, as said in Granger v. Crouch (86 N. Y., 494), the decisive test in every case is the intention of the parties, either as actually expressed or as derived from the natural equity of the situation. Now, in the present case nothing is expressed in the instruments on the question of priority. The fact that they are of even date and of signature and acknowledgment may afford a presumption that they were intended to be concurrent. But such concurrence is not expressed in them. And the presumption yields to proof of the agreement. It was certainly competent for all the parties to agree that one mortgage should be delivered and recorded before the other, and should thus have the priority.

As Stupplebeen was present at the making of the agreement and did not object, and as the matter was one in which lie seems to have had no real interest, he must be considered as assenting to the agreement between the mortgagees. (See Freeman v. Schroeder, 43 Barb., 618.)

In several of the cases above referred to the intention of the parties did not harmonize with the priority apparent on the record, and the intention was held to overcome that apparent priority. In the present case the intention and the apparent priority on the record agree.

If the agreement was, as found by the jury and the court, prior to the delivery of the mortgages, it became an executed agreement by the delivery of Harvey’s mortgage to him with the consent of Richard and with the evident purpose that it was to be recorded before Richard’s. It was not an agreement necessarily expressed in the mortgage. It was collateral and not merged in the mortgage. Nor does it vary the written instruments, because nothing was expressed in them as to priority.

The appellants, passing the question whether the agreement was valid as between Richard and Harvey, claim certain equities for Wise. They say that the agreement was a fraud upon him. But there is no proof of any intention to defraud him. Indeed, the ■fact that Harvey’s mortgage was recorded at once indicates a desire to give notice to the world of the priority agreed upon, and when Wise took the assignment from Richard he could have seen Harvey’s mortgage on record. The fact that Harvey knew that Richard intended to assign his mortgage to Wise is no evidence that a fraud was intended. Nearly $7,000 had been that day paid for the property over and above the two mortgages of $4,000 each. The appellants urge the principle that one who stands by in silence and permits another to deal with his property may be estopped. But that principle has no application, for Harvey at once gave notice to the world of his mortgage and recorded'it as a first lien. Wise, then, if he had looked at the records to see whether he was obtaining a good mortgage, would have found Harvey’s mortgage on record. There was nothing in the contents of either mortgage to show that .another similar mortgage existed as concurrent or otherwise.

Wise held the mortgage for about nine months; his assignee and the subsequent assignees for some seventeen years.' During this time it does not appear that any question of fraud upon Wise had been raised, or that any claim had been made that Harvey’s mortgage was not rightfully the prior lien. Even the present plaintiff averred in her complaint that the Harvey mortgage was the prior lien, and, therefore, did not make the holder a party until compelled to do so. The claim of fraud is certainly stale.

The appellants further urge that, as Wise had agreed, sometime in January previous, to sell his farm to Richard, Wise became, in equity, the owner of Richard’s mortgage. But the contract between Wise and Richard is not given in evidence. There is no evidence whatever that, by that contract,-Richard was to assign to Wise this mortgage in part payment. This is asserted in the appellants’ points, but is not proved, and is iinprobablev Nor is there any proof that Harvey thought that Wise expected to receive a first or a concurrent mortgage. This mortgage had no existence when that contract was made. And, as the appellants did not produce the contract or jDrove its contents,.we cannot assume that that contract referred to a mortgage not in existence, or that it specified such a mortgage to be a first lien. It is impossible, then, on the facts proved, to say that Wise had any equitable rights in Richard’s mortgage. Nor is there any evidence that Richard, when he assigned his mortgage to Wise, represented that it was a prior or a concurrent lien. One who assigns a second mortgage does not, by that act, guaranty that it is a first lien, even though the first mortgage be not on record.

Indeed, at another part of their argument, the appellants admit that the question, so far as the assignees are concerned, is the same as if the contest were between Richard and Harvey. This was held in Greene v. Warnick (ut supra) and other cases, in spite of all the protection intended to be given to a Iona fide purchaser by the recording acts. If the appellants are correct in this, that is, if the question here is just what it would be if Richard and Harvey were now the separate owners of the two mortgages, can there be a doubt that the learned judge was right? The two mortgages, as yet, not being delivered, the owners agree that Harvey’s shall have priority. Thereupon, in pursuance of that agreement, Harvey’s is immediately recorded, and, of course, delivered. Thus the agreement is executed.

The plaintiff claims ownership of her mortgage through an assignment and guaranty made by Allen S. Miller, since deceased. Reuben Miller and Emeline Miller were his executor and executrix. His-personal property amounted to $5,607.54. There was a final accounting of the executor and executrix in October, 1884, under which they paid to Emeline, the widow, $2,514.75 on her legacy. Allen S. Miller left a valuable farm, the use of which was given to her for life. The judgment directs that, if there is a deficiency, Emeline pay that to the extent of the money received by her aforesaid. It. also adjudges the executor and executrix to pay any further deficiency.

The decree entered on the accounting of the executor and executrix does not show who was cited. It is conclusive evidence only against those who were cited or appeared. (Code, § 2742.) There is no proof of any advertisement for claims. (2 R. S., m. p. 88, § 34, and in. p. 89, § 39.) So that there is no evidence before us-showing that the executor and executrix are relieved from liability from this claim.

As to the liability of the legatee, that appears according to sections 1837 to 1841 of the Code. And we do not see why a judgment may not be had against her.

The judgment does not authorize a sale of the real estate of the-deceased. It states only that this judgment is without prejudice to-proceedings which may be taken. The appellants are in error in their understanding of the language of the decree. The words “ remaining unsatisfied from proceeds of sale of said real estate ” are to be read together to refer to the sale of the mortgaged premises, “ said real estate.” "We see no error in the-case.

The judgment is affirmed, with costs.

Mayham, J., concurred.

Landon, J.

(dissenting) :

The two mortgages were concurrent in date, execution and delivery, were alike in form, were intended by the mortgagor to create concurrent and equal liens upon the mortgaged premises. The mortgagees were the grantors by deed of the same date to the mortgagor of their equal undivided interest in the premises, and the mortgages were both given to secure parts of the purchase-money. They were, therefore, of equal and concurrent lien, unless some existing equity required that one should have priority over the other (Boies v. Benham [Ct. App.], 28 N. E. Rep., 657), or a valid agreement to that effect existed between the mortgagees at the time of their execution and delivery. (Jones v. Phelps, 2 Barb. Oh., MO.) The mere fact that one was recorded before the other did not of itself create any priority. (Greene v. Warnick, 61 N.Y., 226; Decker v. Boice, 83 id., 215.) The respondents do not claim any equitable priority, but rely upon priority created by the agreement between Harvey and Richard Miller prior to the execution and delivery of the two mortgages. ^ If that agreement, if it may be called such, were free from fraud, it -might uphold the claim of priority given by the judgment to the mortgage to Harvey Miller. But I think that agreement must be condemned as fraudulent. Before the execution of the two mortgages, and in expectation of their execution, Richard Miller made an agreement with Arnold Wise for the purchase, by Richard, of Wise’s farm, the $1,000 mortgage to be received by Richard to be applied in part payment of the purchase-money thereof. This agreement was known to Harvey Miller. Some point is made that Harvey did not know that Wise was to take the mortgage from Richard. Harvey himself testified, when asked if he knew that Wise was to take that mortgage that day : “ No, not positively, but I supposed it would be turned in ; whether Wise or somebody else would take it I didn’t know, but • I supposed it would be turned in for that property. I knew no other source in which Richard would turn that mortgage.” Of course the person to be cheated, whether Wise or another, is now as immaterial to the question under consideration as it was then to Harvey. The intention was, by a secret agreement between themselves, to import into Richard’s mortgage a latent defect which would benefit Harvey’s mortgage, and then assign the impaired mortgage without disclosing the impairment, and thus thrust'upon the assignee, whether Wise or another was immaterial, the risk to result from their artifice.

The suggestion that they did not do this to cheat Wise, but merely to help Harvey; that they believed the mortgage assigned him would be good, though not so good as it purported to be; that Richard did not expressly tell him it was equal in lien with Harvey’s mortgage, are more like appeals to charity to condone their fraud than evidence in disproof of it. Whatever advantage the secret agreement would confer upon Harvey they meant he should stealthily acquire, and whatever increased risk it might thrust upon Wise they meant he should not know until it should be too late for him to refuse it. The facts indicate that while Richard was taking his mortgage to the law office where it should be transferred to Wise, Harvey was taking his mortgage to the clerk’s office to be recorded. Was it necessary that Wise should station a messenger at the clerk’s office in order to detect the record of Harvey’s mortgage, before he could finish his transactions with Richard ? Clearly not, in view of the law with respect to such mortgages, that mere priority of record confers no priority of lien. The maxim of caveat ■emptor does not apply to a latent defect or vice caused or created by the vendor himself. (Hoe v. Sanborn, 21 N. Y., 552; Littauer v. Goldman, 72 id., 506.) Much less will the maxim apply where the latent defect is created for a fraudulent purpose by the vendor; for it is idle for the buyer to take heed when the artifice of the ■seller is so contrived as to baffle the buyer’s caution.

It is true that Wise was not expressly told after the two mortgages were executed that they were equal liens in point of time. That is to say, no oral misrepresentation was superadded to the representation implied by the mortgages themselves, and the open facts respecting them. Harvey and Richard intended to deceive Wise by concealing what it was Richard’s duty to disclose, and what it was Harvey’s duty to see to it that Richard did disclose. Mutual concealment was necessary to make quite sure of the success of the imposition upon Wise. It was not needful for the appellants to prove an affirmative oral misrepresentation to Wise after the execution of the mortgages, and the failure to do it was not material.

As the assignee of each mortgage abides by the case of his assignor,, the rights of the present owners as to priority are the same as they stood between Harvey and Richard before Richard’s assignment to Wise. As no priority was acquired by Harvey by the mere act of his priority of recording, the question now depends upon the validity of their oral understanding to give Harvey’s mortgage priority of lien. It will be noticed that that understanding was not based upon any consideration; it was destitute of any equities to uphold it; it was a mere nud/um pactum,, and, therefore, not a binding agreement. Richard, therefore, was not bound by it. But if we call it an agreement it was entered into for a fraudulent purpose, and, therefore, not binding upon Richard. Ex maleficio non oritur contractus. Harvey could not enforce it against Richard. Ex cl'olo malo non oritur actio. They were equal wrong-doers. In pari delicto potior est conditio defendentis. The mortgages, therefore, remained as they were when executed, concurrent. - It is suggested that the agreement for prior record is executed, but, as we havé seen, nothing follows to fix priority from the mere recording, and, therefore, the situation is unchanged by,that fact. Priority of lien can only exist by virtue of a valid agreement; and as the facts disprove its validity, even if the prior record were presumptive evidence of it, equality remains. •

The judgment should be modified by declaring such equality of lien, and equal right to the proceeds of sale, and disallowing costs to the defendant Anderson, and awarding to appellants costs against him of this appeal and in the court below, and in other respects affirmed, with costs to the plaintiff out of the proceeds.

Judgment affirmed, with costs.


author: Landon, J.:

text:
    HELEN MATTHEWS, Respondent, v. HORACE MATTHEWS, Appellant.

      JSquity■ — -oral agreement to provide for one coming to live with the promisor — doomages where apa/i'ty has put it out of his power to perform —•part performance — statute offrauds — -2 S. 8., m. p. 135, see. 10.
    One Horace Matthews made an oral agreement with his niece that if she and her husband would dispose of their real and personal property and come and live with him and keep house for him, he would give them the use of a xiart of his premises, and of certain chattels, while he lived; would give the same absolutely to his niece upon his death, and would upon their coming give them a written agreement to the effect above stated.
    'The niece and her husband, relying upon such oral agreement, disposed of their proxierty, came to live with Horace Matthews, and performed for a time all the conditions of this agreement upon their part, until the said Horace became dissatisfied, required his niece and her husband to leave the house, conveyed the premises to a third person and disxrosed-of most of his chattels.
    In an action brought by the niece, individually and as assignee of her husband, the comxilaint in which, setting forth the above facts, was adaxited to both equitable and legal relief:

      Held, that the xilaintiff was entitled to a sxiecific xierformance of the contract to give a wiitten agreement showing her rights.
    'That as the defendant had refused further performance, and had by his transfers disabled himself from performance, the plaintiff’s right of action was complete.
    That nothing was left to the x>laintiff except a recovery in damages, and that their measure was the value of the contract.
    'That if the contract should be deemed one to compensate the plaintiff in land, the part performance upon her part would save it from being void under the statute of frauds. (2 R. S., m. p. 185, § 10.)
    Appeal by the defendant Horace Matthews from a judgment, entered, upon the report of a referee, in the office of the clerk of the county of Clinton on the 3d day of June, 1891, in favor of the plaintiff for $1,052.71 and costs.
    The action was brought to recover damages for the breach of an .agreement.

      A. W. Boynton, for the appellant.

      F. A. Bowe, for the respondent.
   Landon, J.:

The facts found by the referee are supported by the preponderance of the evidence. They show an oral agreement between the parties to the effect that, if the plaintiff and her husband would dispose of their real and personal property in St. Lawrence county, where they resided, and leave their home there, and come and live with the defendant upon his. premises in Clinton county, where he was then living alone, and take charge of his household and work his land and take care of and maintain him during his life he would give them the use of a certain part of the premises during his life, and of his furniture and chattels, and would give the plaintiff the same upon his death, and would, upon their coming to live with him, give them a written agreement to that effect.

The defendant was the uncle of the plaintiff; was upwards of eighty years of age, and had neither wife nor child.

The plaintiff and her husband, relying upon this oral agreement, disposed of their property in St. Lawrence county, and, in December, 1886, removed to Clinton county and took up their residence with the defendant on his premises, and from that time until July following cared for and maintained the defendant as a member of the family, and performed all the conditions of the agreement on their part. The defendant then became dissatisfied and refused to give the plaintiff any written agreement; required the plaintiff and her husband to quit his premises, and in March, 1888, without any fault upon their part, ejected them therefrom, and afterwards conveyed the premises to a third person, and disposed of the greater part of the furniture and chattels. The husband assigned to the plaintiff whatever'cause of action accrued to him from the transactions.

That the plaintiff is entitled to some recovery cannot be questioned. She performed upon her part, so far as performance was due, and was ready and willing to continue performance when the defendant forbade her further performance, and disabled himself from specific performance upon his part by his disposal of the subject of the consideration he was to render her.

TJpon performance of the agreement that plaintiff and her husband should break up their home in St. Lawrence county and take up their home with the defendant in Clinton county, the plaintiff was entitled to the written agreement showing her present and future rights, and was entitled to a specific performance of the oral agreement to give the written one. That part of the agreement was complete; the defendant could not rescind after performance; lie could only violate it. Tlie plaintiffs rights under it were vested. It did not vest in her the title to the furniture or to the landj but the right to the agreement which would vest the title in her upon the defendant’s death, and would give her the use of them meanwhile. The complaint states the facts constituting the cause of action, and is adapted to equitable as well as legal relief. The plaintiff being entitled to the specific performance of that portion of the contract, the case thenceforth stands as if such specific performance were decreed. The executory contract for the ultimate title of the chattels and land is, therefore, to be considered as if in writing, executed and delivered.

The defendant having refused performance, and disabled himself from performance, the plaintiff being ready and willing to perform on her part, the plaintiff’s right of action is complete. (Woolner v. Hill, 93 N. Y., 576; Hawley v. Keeler, 53 id., 114.) The defendant’s acts preclude the award of any relief except damages. The. measure of damages is the value of the contract. (Taylor v. Bradley, 39 N. Y., 129; Howard v. Daly, 61 id., 362.) The value of the contract was the present value of what plaintiff would ultimately be entitled to receive under it, less the value of what defendant should show ought to be deducted from it. Of course, he could not claim deduction for the value of the support and services which he refused to receive at her hands. The referee seems to have dealt as liberally with the defendant as the evidence would warrant.

If it should be conceded that the plaintiff was not entitled, to a specific performance, but only to damages for the breach of the oral agreement to give the written one, the same result would be reached. Equity often denies specific performance, when, all the circumstances considered, compensation for damages seems to be the more equitable. But such cases are none the less the subjects of equitable cognizance, if, without its intervention, the legal remedy would prove inadequate. (Rindge v. Baker, 57 N. Y., 209.)

Again, if it be conceded that the entire contract was for compensation in land and void, because within the statute of frauds, yet being partly performed, the statute permits its specific performance if justice requires it, and such performance is practicable. (2 R. S., 135, § 10.)

Cases are numerous in which specific performance of such contracts has been decreed. (Lobdell v. Lobdell, 36 N. Y., 327; Freeman v. Freeman, 43 id., 34; Kenyon v. Youlan, 25 N. Y. St. Rep., 299; Dill v. Harbeck, 17 id., 607 ; Thorp v. Stewart, 44 Hun, 233.). Specific performance being impossible because of the wrong of the-defendant, equity, as we have seen, substitutes compensation for it..

Thus, through the equities of the plaintiff which the defendant has violated, the plaintiff is entitled to damages, to be awarded upop the same basis as if the contract were in writing. Cases at law in which the plaintiff, treating a contract for services payable in land as void under the statute, sues to - recover the value of his services, as upon a quantum meruit, have no application. Unless equity is. invoked, the plaintiff, for such services rendered, can only recover upon the implied legal obligation of the defendant to compensate her..

The defendant objects that the parol agreement was not sufficiently definite in terms to admit of specific performance. It is plain that the defendant agreed to make the necessary papers to vest in the plaintiff the title to the property upon his death. There is no ambiguity as to the subject-matter or the terms upon which the defendant would transfer it to the plaintiff. She was to liaveabsolute title upon his death, and the use of it meanwhile upon her full performance. Whether this result was to be accomplished by defendant’s will, or by his conveyance and bills of sale, would be of little consequence. Whatever the form of the writings, they were to be adequate, and the court in decreeing performance would prescribe such as could be executed. (Parsell v. Stryker, 41 N. Y., 480.)

The judgment should be affirmed, with costs.

Learned, P. J., and Mayham, J., concurred.

Judgment affirmed, with costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. LUTHER S. WHITE, Appellant.

      IPorgery — corroboration of an accomplice — not afforded by testimony of the accomplice as to other forged notes — conspiracy.
    “Wliere one is charged with forgery in the second degree, in that he had directed the actual forger to sign a person’s name to a note, as alleged, in pursuance of a scheme between the parties to forge notes of various persons, forged notes not set out in the indictment, and proved only by the testimony of the accomplice, are not competent in corroboration of the testimony of said accomplice under section 399 of the Code of Criminal Procedure, which provides that a conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime.
    Proof of like acts is allowed in some cases to show a criminal intent in the case of an act which might be an innocent one; but evidence of participation in forging •a note, and in using it as genuine, is of itself proof of guilty intent. Hence the reason of the rule fails in that case.
    Where the indictment alleges a conspiracy to forge notes, the testimony of an accomplice, in support of the indictment, must be corroborated in order to establish the existence of such a conspiracy.
    After the testimony of the accomplice has been corroborated evidence may be given of acts in furtherance of the conspiracy.
    Corroboration is, however, not afforded by the production of alleged forged notes, other than the one set out in the indictment, which are proved to have been the product of the conspiracy only by the testimony of the accomplice.
    Appeal by the defendant Luther S. White from a judgment of the Court of Sessions of Schoharie county, rendered against him therein on the 14th day of December, 1889, whereby he was convicted of the crime of forgery in the second degree and was sentenced to imprisonment in a State’s prison for the term of five years at hard labor; and also from an order, entered in the office of the clerk of said county on said 14th day of December, 1889, denying his motion for a new trial.

      II. Krum, for the appellant.

      Dow Deehmcm, for the respondent.
   Landon, J.:

The defendant was jointly indicted with one Wellington E. Yanderhoof for forgery in the second degree, for forging the name of Edward Yan Auken to a promissory note for eighty-five dollars, as maker thereof. The indictment charged that the forgery was done by Yanderhoof, but that the defendant “aided, abetted, commanded, induced and procured” Yanderhoof to doit. Yanderhoof demanded a separate trial, .which which was granted, and thereupon the defendant was separately tided at the Schoharie Sessions in December, 1889, found guilty, and sentenced to imprisonment for five years. The defendant appeals from the judgment of conviction and sentence, and from the order denying a new trial.

Yanderhoof was the principal witness against the defendant. He testified that he forged the name of Edward Yan Auken as maker of the note, and then uttered the note as genuine, and also that he did so at the instance and procurement of the defendant. Upon the whole evidence there was no doubt as to the guilt of Yanderhoof; the main effort of'the people upon the trial was to corroborate his testimony with respect to the guilty participation of the defendant. If, in that respect, the corroboration is insufficient, or is based upon incompetent evidence to which the defendant duly obj'ected, then the conviction was erroneously procured. Yanderhoof, upon his own testimony and upon the theory of the people, was an accomplice; unless we assume that fact for the purposes of this review, the conviction should be reversed as wholly unsupported. The Code of Criminal Procedure (§ 399) provides: “A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime.”

It is obvious from the statement already made that the “ other evidence ” cannot “ tend to connect the defendant with the commission of the crime” unless it bears, in some slight degree, upon the alleged acts of the defendant implicating him in procuring or advising, or requesting Yanderhoof to commit it. Yanderhoof might relate á hundred circumstances of his co-operation with the defendant in matters near to this crime, in point of time and locality, and be corroborated in them all, and- yet none of them amount to legal corroboration unless they touched in some degree some fact necessary to constitute defendant’s commission of the crime itself or to show his previous connection with it. Yanderhoof comes to the witness stand confessedly guilty of the crime himself; the people commend him to confidence by calling him; they desire to treat him fairly, and in this they are liable to err in his favor; his hazard of punishment is not increased, and he may hope that it will be diminished ; he may, with seeming safety, gratify his malice against the defendant,' and he may reasonably hope to excite such commiseration as will mitigate his fate, if he can shift from himself to the defendant a part of .the responsibility for his own guilt. The law would be justly subject to reproach if it allowed him to interweave his story of the defendant’s guilt, as to which he could in no wise be corroborated, with the truthful tale of other circumstances as to which corroboration would be easy, and then should infer the truth of the charge of crime from the truth of the statements into which the charge was interwoven. Since the enactment of the section quoted the courts have uniformly held that there must be some evidence other than that of the accomplice fairly tending to connect the defendant with the commission of the crime. (People v. Elliott, 106 N. Y., 288; People v. Everhardt, 104 id., 591; People v. Ryland, 97 id , 126; People v. Jaehne, 103 id., 182; People v. O'Neil, 109 id., 251; People v. Plath, 100 id., 590.)

■Tested by this rule, we think this conviction must be reversed because it is based upon evidence which was incompetent either to sustain the principal charge or to corroborate the accomplice, or for any purpose relevant to this trial.

The note in question was made June 1, 1887. In the fall of 1886, G. B. Lampman, as agent for E. D. Larkin in the sale of grain drills, had left with Lincoln Yan Auken, near Middleburgh, a grain drill on trial, price eighty-five dollars, to be paid for the following spring if satisfactory. In the spring of 1887, Yanderhoof became the agent at Middleburgh for Larkin in the sale of grain drills, and Lampman left with Yanderhoof, for settlement, the transaction with Lincoln Yan Auken about the grain drill on trial. Yanderhoof had agreed with Yan Auken to take pay in hops. June 1, 1887, Lampman came to Middleburgh and asked Yanderhoof to pay him for the grain drill, or give him the buyer’s note. Yanderhoof had not then received the hops. Lampman drew the note in question, and handed it to Yanderhoof to get the buyer’s signature. Thus far there is no question about the facts. Taking up Yanderhoof’s testimony at this point, we find it as follows: “ I then went down to White and told him Lampman was out and wanted pay for the drill either in money or the note, and that I could not get any note or pay for the drill of Yan Auken, and that he (Yan Auken) wanted to deal the hops instead of paying or giving a note. Lampman made out this note, filled the body of it out himself, and I took the note and went down to White’s, and there I signed the note with Yan Auken’s name to it. At White’s office nobody there but White and myself. White said: ‘ Sign Yan Auken’s name to the note and it couldn’t be found out but what Yan Auken had this property, and the note would be better in his name than in any other party’s.’ ” Edward Yan Auken, whose name Yanderhoof wrote as maker of the note, was the father of Lincoln, and the two lived together.

It is thus seen that the proof of the guilt of the defendant requires some corroboration of -Yanderh oof’s testimony that the defendant told him to sign Yan Auken’s name to the note. Direct corroboration there is none. If the defendant spoke the words, they were heard by no one except Yanderhoof; the defendant has made no confession. The people rely upon a circumstantial corroboration. The question is whether it tends to support Yanderhoof’s testimony that the defendant told him to forge Yan Auken’s signature to the note.

Yanderhoof was a young man about twenty-three years of age; he commenced to act as agent for the sale of agricultural implements at Middleburgli in the spring of 1887. It does not appear that he had previously lived in that village. The defendant was ten years older, was engaged in the coal business at Middleburgli, and was in good credit, fairly prosperous, active and eager to make money, and disposed to make it both in his regular business and outside of it, in small speculative trades and in buying notes. His general reputation was good. He and Yanderhoof had known each other three or four years before Yanderhoof came to Middleburgh. Yanderhoof testified that soon after he commenced selling agricultural implements, about two months before the date of this forgery, the defendant solicited two interviews with him, in the first of which he asked Yanderhoof how he made his payments to his principals, Larkin and Childs & Company; that he told the defendant that he had to make them in cash or good indorsed notes; and at the second interview defendant told him that he had been thinking of a little-scheme that would work between the two; that he should turn over the notes and accounts to the defendant, and he could use the money to advantage in his business, and they would forge notes against good parties and send them to Yanderhoof s principals; that if Yanderhoof had to sell some goods less thaq cost, the defendant would make good the loss out of his coal sales in the fall and pay him $500 besides; that Yanderhoof consented to this arrangement; that they began by forging four or five notes, Yanderhoof forging-two or three, and the defendant the others; that these notes-were taken up when due; that other forgeries followed in like manner, and the notes were taken care of and returned to the defendant, who destroyed them, and the note in question was made in the course of these transactions under the circumstances already detailed. Of course, the destroyed notes were not produced. But-there were produced upon the trial thirteen or more notes, all of which were forgeries. Yanderhoof testified that the defendant forged two of them, one in the name of John Bush as maker, and the other in the name of Robert Smyth as maker, and that he, Yanderhoof, forged the others under the defendant’s direction. The comparison of the forged names, John Bush and Robert Smyth, with the names which Yanderhoof testifies that he forged to the other eleven notes, shows features in common, and that his skill in forgery had definite characteristics and limitations which appear in like manner in the forged names of Bush and Smyth, as in some of the other forged names having some of the same letters.

The defendant in his testimony contradicts fully the testimony of Yanderhoof respecting defendant’s proposal of forgery and subsequent participation in it. He testified that he did cash notes for Yanderhoof “at a shave,” lent him money on others, signed a note for bis accommodation and took as security an assignment of notes and accounts. That on the 10th day of October, 188J, he discovered that Yanderhoof had put forged notes and fictitious accounts upon him; that he thereupon took counsel and was advised to get further security; and saw Yanderhoof and obtained it in the form of bills of sale of personal property and a mortgage upon his wife’s real estate;, that the defendant told Yanderhoof that as fast as he-could pay him he would release the property, and Yanderhoof did make some payments. Presently other forgeries of Yanderhoof transpired, and on November 10, 1887, he ran away. Having sold his goods during eight months of business for less than they cost him, paid some, money to his principals and protected' some of the forged paper he had sent them; paid the defendant liberal “ shaves ” for cashing paper; transferred to him notes and accounts to secure his indorsement ; turned over to him all he had left to secure him against other forged paper which he had passed upon him, added to the expense, of support for himself and wife, it is easy to see that in the end about all of his assets were in the hands of the defendant. ThusYanderhoof is amply corroborated as to his general dealings with defendant. After he had been gone some months he told his. creditors something like the story he testified to upon this trial. The fact easily proved, and never concealed, that the defendant had the dealings with him, which the defendant admits, made an apparent corroboration of Yanderhoof’s testimony, and gave him credit with the jury when he also testified that the securities which he gave the defendant were not given for actual liability, but as mere covers to enable Yanderhoof to cheat others and conceal the true transactions between the parties.

There was some evidence tending to show the defendant’s desire, after criminal proceedings were threatened against him, to take up the Yan Auken note, and to prevent proceedings before the grand jury. There was also evidence of acts of defendant tending to the protection of Yanderhoof against prosecution for his forgeries. This evidence was doubtless properly received. We do not say that it tended to corroborate Yanderhoof’s testimony accusing the defendant of the Yan Auken forgery. Such conduct of the defendant-may have been inspired by his connection with that forgery, or by some other motive. If the jury had any reasonable doubt as to its significance, they would give the defendant the benefit of it.

But we have no doubt that the.other notes and Yanderhoof’s testimony that defendant was guilty of participation in their forgery were improperly admitted in evidence. The defendant was not on trial for their forgery, and yet he was put upon trial in that respect, and was certain to be convicted upon this note if there should appear a probability of his guilt in respect of any one of the many others. This is not a case in which proof of other like acts is competent in order to sliow the criminal intent of an act which may be innocent. A person may innocently pass a counterfeit bill ;• the presumption would be strong that lie did so if he passed but one and had no more. The presumption weakens as the like act is repeated, and its repetition may, therefore, be shown So a person may innocently take another’s money in the act of making change; but he may do the like act in the like manner so often as to convince a jury that it is one of his ways of stealing, (People v. Williams, 58 Hun, 278.) But proof of participation in the forgery of a promissory note, and in the use of it as genuine, is of itself proof of the guilty intent. The defendant may be insane or the victim of deception ; if the evidence raises such a question, it would, of course, be proper for the people to meet it; no such question was raised by the evidence in this case, and there was no question but that the proof of his participation in the act would be proof of the guilty intent of the defendant.

The people allege a conspiracy between Yanderhoof and defendant to commit forgeries, and then invoke the rule that the conspiracy being first proved every act in furtherance of the conspiracy may be shown. But if the conspiracy is a constituent part of defendant’s guilt, or of the evidence tending to establish it, then Yanderhoof’s testimony respecting its existence must be corroborated by other evidence. To say that the other notes furnish such evidence is to say that Yanderhoof’s testimony corroborates itself, since there is no ■evidence, other than his testimony, that the other notes were the product of the conspiracy. The existence of the conspiracy rests upon his unsupported testimony, as also the alleged acts in furtherance of it. As both branches of the proposition are unsupported, it is plain that one of them can give no support to the other. However the rule may have been before the statute required other evidence in corroboration of the testimony of the accomplice, the statute now forbids the admission of evidence of such acts in furtherance ■of a conspiracy, as depend solely upon the existence of the conspiracy for their admissibility, unless the testimony of the accomplice as to its existence is corroborated by other evidence. Otherwise, testimony tending to convict the defendant, whose significance and relevancy depend upon the fact of a conspiracy would be received without establishing the fact.

But if it were proved that all the other notes were forged by both Yanderhoof and defendant, that would only afford evidence of a conspiracy as to them, not as to this note. Even Yanderhoof in his uncorroborated testimony does not claim that this note is so related to the others as-to be part of their existence or to stand to them as cause or effect. Yanderhoof’s testimony respecting the conspiracy or its covering this note was not corroborated by the other notes or his testimony respecting them, nor by both. The notes were competent neither to prove the crime charged nor the conspiracy to commit it. Independently of Yanderhoof’s testimony, that the defendant assisted in their forgery, the notes had no significance. That testimony, standing alone, could give them no significance. Whether Yanderhoof was or was not corroborated with respect to the other notes, they were equally incompetent, since they were not a constituent part of the crime charged, or any inducement or fact leading to it, or in concealment- of it, and were prejudicial to the defendant, since they exposed him to conviction by me jury upon evidence not touching the charge of which he was accused.

Both Yanderhoof and one Jones testified to their riding around together to visit certain customers of Yanderhoof in order to procure notes from them and failing to find any of them, Yanderhoof testified that in order to mislead Jones he inquired for one customer at the house of another, and thus failed to get any notes, and then put off Jones by telling him he would himself get the notes and send them to him, and that lie afterwards sent or gave him forged notes. He testified that he did this at the suggestion of the defendant. It is plain that the corroboration by Jones of the fruitless journey, and, of his subsequent receipt of the forged notes, is no corroboration of Yanderhoof’s statement that he acted upon defendant’s suggestion. Besides, none of these notes had any connection with the Yan Auken note. If one forgery is proof of another one not connected with it, proof of one would suffice to convict the defendant upon the seventeen indictments against him.

The judgment should be reversed, and a new trial granted.

Learned, P. J., and Mayham, J., concurred.

Judgment and conviction reversed, new trial granted.


text:
    ERASTUS P. BACKUS, as Sheriff of St. Lawrence County, Respondent, v. WILLIAM H. KIMBALL, as Executor of PLINY WRIGHT, Deceased, Appellant.

      Attachment of personal property incapable of manual delivery, e. g., a legacy— Code-of Civil Procedure, sea. 655; 649, sub. 3.
    Tlie complaint, in an action brought by a sheriff, alleged the commencement of two actions upon contract in the Supreme Court by different plaintiffs against one Bigelow for the recovery of money; the service of the summons in each case by publication; the non-appearance and default of Bigelow; the issuing of' an attachment in each of said actions by the respective plaintiffs therein to the sheriff, and the devise of certain real estate of the value of $500 to the defendant in trust, and with power of sale to convert the same into money and pay it to Bigelow. Judgment was demanded that the defendant pay the proceeds of said devised property to the sheriff to be applied in satisfaction of the judgments, which might be obtained in the two actions in which the attachments had issued. On the hearing had upon a demurrer interposed to said complaint:

      Held, that the action could not be maintained under section 155 of the Code of Civil Procedure, as amended by chapter 504, Laws of 1889.
    That the complaint, although within the letter of that section, was not within its-spirit.
    That the plaintiffs, in the actions in which the attachments had issued, could levy their attachments without the help of that section, as Bigelow had a claim against the defendant which he could enforce by bringing an action under section 1819' of the Code, or by proceedings before the surrogate under section 2 <17 of said Code.
    That this personal property, being incapable of manual delivery, should be attached in the manner prescribed by subdivision 3 of section 649 of said Code.
    The object of the amendment made in 1889 to section 655 of said Code, stated.
    Appeal by tlie defendant William H. Kimball, as executor of Pliny Wriglit, deceased, from an order overruling a demurrer to-the complaint in this action, entered in the office of the clerk of the. county of St. Lawrence on the 11th day of June, 1891.
    The complaint sets forth tlie commencement of two actions in the-Supreme Court by different plaintiffs against one Bigelow for the recovery of money upon contracts, the servicé of the summons in each case by publication; and the non-appearance and default of the defendant; also the devise of certain real estate of the value of $500 to the defendant in this action, in trust, and with power of. sale to-convert the same into money and pay it to said Bigelow; the issuing-of an attachment to the plaintiff in each of said two actions. Judgment is demanded that this defendant pay the proceeds of said devised property to the plaintiff, to be applied in satisfaction of the judgments which might be obtained in the two actions.
    The defendant demurred to the complaint for insufficiency, in that-it did not state facts sufficient to constitute a cause of action.
    W. L. Robinson, for the appellant.

      George G. Sawyer, for the respondent.
   Landon, J.:

The complaint is within the'letter of the statute. Section 655, Code of Civil Procedure, was amended in 1889 (chap. 504) by adding thereto as follows:

“ 2. "Where the summons was served without the State, or by publication, pursuant to an order obtained for that purpose, as prescribed in chapter fifth of this act; and where the defendant lias, not appeared in the action (otherwise than specially), but has made default and before entering final judgment, the sheriff may, in aid of such attachment, maintain an action against the attachment debtor, and any other person or persons, or against any other person or persons, to compel the discovery of any thing in action, or other property belonging to the attachment debtor; and of any money, thing in action, or other property due to him, or held in trust for him, or to prevent the transfer .thereof, or the payment or delivery thereof to him or any other person, and the sheriff may, in aid of such attachment, also maintain any other action against the attachment debtor and any other person or persons, or against any other person or persons which may now be maintained by a judgment-creditor in a court of equity, either before the return of an execution in aid thereof, or after the return of an execution unsatisfied. The judgment in any of the above-mentioned actions must provide and direct that the said property shall be applied by the sheriff to the satisfaction of any judgment which the plaintiff may obtain in the "attachment action.”

But the case stated in the complaint is not within the mischief the amendment was intended to remedy. The plaintiff could levy the attachment without the help of this new provision. Bigelow, the attachment debtor, holds a claim against this defendant for the legacy; he can enforce the claim by action under section 1819 of the Code, or by proceedings before the surrogate under section 2717. This •claim is, therefore, personal property, incapable of manual delivery, and can be attached under subdivison 3 of section 649 by leaving with the defendant a certified copy of the warrant with a notice showing that the legacy is the property attached. If there are any facts which would prevent, impair or defeat such a levy or make it inexpedient or impracticable, the complaint does not disclose them. The purpose of the amendment was to provide a remedy where it was necessary and proper, not to invite or authorize an unnecessary action.

It had been held that an action could not be brought in aid of an attachment to reach property fraudulently .transferred by the attachment debtor. (Thurber v. Blanck, 50 N. Y., 80; Anthony v. Wood, 96 id., 180; Throop Grain Cleaner Co. v. Smith, 110 id., 83.) It followed from this holding that where a non-resident owning property in this State fraudulently transferred it, and then was sued for money upon contract, by service of the summons without the State, or by publication pursuant to an order, and he did not appear in the •action but made default, no jurisdiction was acquired. The person of the defendant was not brought within the jurisdiction of the courts of this State, for the laws of the State cannot reach beyond its territorial limits. (Freeman v. Alderson, 119 U. S., 185.) The fraudulently transferred property could not be attached; the court had neither person or thing within its power. (Schwinger v. Hickok, 53 N. Y., 280; Bartlett v. Spicer, 75 id., 528.) The amendment enables the court to establish the non-resident debtor’s title to the property, and thereby to establish its jurisdiction of it. If the non-resident debtor holds the legal title, then jurisdiction of the property is acquired by levying the attachment by seizing it, or, if incapable of manual delivery, in the manner already pointed out.

The complaint states no facts constituting any equitable cause of action. The statute provides for an equitable action, but the provision is for those who have equities making the remedy appropriate, not for those who have none. The law provided the plaintiff an ample remedy, and any action is needless. The plaintiff’s case is within the letter, but without the spirit of the statute, and thus without the statute itself. “ The letter killeth, while the spirit keepetli alive.” (Tracy v. Troy and Boston R. R. Co., 38 N. Y., 437.)

The interlocutory judgment should be reversed, with costs, and judgment directed for the defendant upon the demurrer, with costs, with the usual leave to plaintiff to amend the complaint upon payment of costs.

Learned, P. J., and Mayham, J., concurred.

Judgment overruling demurrer reversed, and judgment for defendants on demurrer, with costs, with leave to amend complaint on payment of costs.