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

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ALEXANDER MEAKIM and Others, Commissioners of Excise of the City of New York, Respondents, v. MAX ECKMAN and Others, Appellants.

      Excise law in New York city — bond for a saloon license — who mcvy sue for its breach — a sale of liquor to a minor is a “ disorderly ” act — Laws of 1857, chap. 628, secs. 7, 15, 24.
    The commissioners of excise of the city of New York are the proper persons to bring an action for a breach of a covenant in a bond, given to the people upon the issuing of a license to sell strong and spirituous liquors at a saloon in that city.
    Where such commissioners, as a condition of issuing such a license, require a bond to be given, and the condition is accepted and the bond is given, the obligors are estopped from questioning its validity. (Van Brunt, P. J., dissenting.)

      Semble, that such a bond is authorized and valid. (Per O’Brien, J.)
    One of the conditions of such a bond was that the licensee should not suffer his place of business to be disorderly. ' He sold liquor to a minor under fourteen years of age, which is a violation of section 15 of the General Excise Law (supra).

      Reid, that this was a breach of the condition.
    That the word “ disorderly ” will, in this connection, not be given its meaning as defined in section 322 of the Penal Code, but the ordinary meaning which it has at common law and in dictionaries.
    Appeal by tlie defendants, Max Eckman, Adolph Prince and Isaac Schleifstein, from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on tlie 22d day of June, 1891, overruling a demurrer to the complaint, with leave to answer over on payment of costs, and granting final judgment for a failure to do so.

      Moses Weinman, for the appellants.

      Edwo,rd Browne, for the respondents.
   O’Brien, J.:

The complaint in this action is based upon an alleged breach' of the condition of a bond, given by the defendants to the People of the State of New York, upon the issuance to the defendant Eckman of a license to sell strong and spirituous liquors upon premises. The bond is in the sum of $250, and the condition reads: “ That, if during the time for which the said license shall be granted, he shall not suffer his place of business to be disorderly, nor suffer any gambling or keep a gambling table of any description within said premises so kept by him, or in any out-liouse, yard or garden belonging thereto, nor suffer said premises to be used for immoral or unlawful purposes, and that, if during the time for which the undersigned shall be licensed, he shall keep and observe the provisions of the acts hereinabove mentioned and the acts of the legislature (known as chapter 628 of the Laws of 1857), supplementary thereto and amendatory thereof, then this obligation to be be void, otherwise to remain in full force and virtue.”

A violation of the condition of the bond is charged against Eckman in this, that on a day specified he sold and permitted his agent and servant to sell strong and spirituous liquors to a minor under the age of fourteen years. The demurrer' admits the facts, and, therefore, the three questions of law arising upon this appeal open for discussion are:

First. As to the plaintiff’s right to maintain this action.
Second,. As to the commissioners’ power to demand the bond as a condition of granting the license to Eckman.
Third. Was there a violation of the condition of said bond by the sale of intoxicating liquor to a minor under the age of fourteen years ?

In disposing of these questions relied upon by the appellants, it should be remembered, as stated by the learned judge below, that, “ The instrument was exacted, but voluntarily executed and delivered to obtain tbe desired license.” The learned judge was also of the opinion that the obligors should not be permitted to question the validity of an obligation thus assumed. Apart, therefore? from any statutory provision requiring a bond to be given, the conclusion reached by the learned judge below, it seems to us, can be sustained. It is discretionary with the commissioners as to the persons to whom, and the conditions upon which, the license shall be issued. Where, therefore, in the exercise of a discretion conferred by law, a bond is required as a condition precedent to the issuance of a license, it can be enforced if its conditions are violated. This results from the fact that it is a good common-law bond.

We have not overlooked, in this connection, the fact that a failure to wisely exercise their discretion, can be remedied by an application to the court for a mamdamus, and upon such an application the court, undoubtedly, would have the right to determine whether the conditions imposed by the commissioners were reasonable and just. In this case the commissioners required a bond, and iio objection was made to giving one, nor was any resort had to the court by mandamus for the purpose of determining their right to exact the same. Under such circumstances the bond, being executed, became, as stated, a good bond at common law, and can be enforced. In addition, however, we are of opinion that statutory authority can be found for a determination of the questions presented upon this appeal favorable to the commissioners.

First. As to plaintiffs right to maintain the action, it must be conceded, at the outset, that unless some authority is found in the statutes, that the obligee of the bond being the people of the State, an action on their behalf could only be maintained by the attorney-general or district attorney. This view is enforced by reference to section 1962 of the Code, which Requires such actions to be brought by the officers named, where provision is not otherwise specially made. The act of 1857, chapter 628, provides by sections 22 and 2é, by whom and in whose name actions shall be maintained. This question has been discussed in the two cases of the People v. Groat (22 Hun, 165) and in Board of Commissioners of Excise v. Burtis (103 N. Y., 140). The latter case decided that, for penalties imposed by the act, the commissioners of excise were the proper parties to maintain the action. Besides actions to recover penalties imposed by the act for violations of the excise law, a cause of action exists in favor of some one for a breach of the condition of a bond. This has been specially provided for by section 24 of the Laws of 1857, as construed in the case of People v. Groat (supra), wherein it was held that an action to recover the penalty, incurred by the breach of the condition of such a bond, must be prosecuted by the officers named in section 24, which specially names the commissioners of excise as the persons to prosecute in the name of the people.

In view, therefore, of the express authority given by the statute, as construed in the cases cited, it seems reasonably free from doubt that the commissioners of excise, as they have done here, could, in the name of the people, bring and maintain this action. However, we do not think that the appellants are in a position to urge such an objection upon this appeal, for the reason that it does^appear upon the face of the complaint that the plaintiffs have not legal capacity to sue, and, therefore, under sections 488 and 489 of the Code, the objection should be taken by answer, and not by demurrer.

Second. Had the commissioners the legal power to demand the bond as a condition'of granting the license to Eckman ?

There are two classes of bonds-authorized.to be taken and required to be given before a license can be granted to an applicant; one from applicants who desire to sell liquors, to be drunk on the premises, commonly known as hotel and saloon licenses; the other to applicants who sell liquors not to be drunk on the premises.

The license granted in this case is known as a “saloon license,” and with that alone we have to deal upon this appeal. Many changes, by amendments and new enactments, have taken place in the excise laws since the adoption of the general scheme in 1857. (Laws of 1870, chap. 175 ; Laws of 1873, chaps. 549 and 820 ; Laws of 1883, chap. 340, and chap. 496 of the Laws of 1886.) None of these laws, in express terms, repeals the general scheme or act of 1857 (chap. 628), and, except so far as the subsequent acts may be inconsistent with or repugnant to certain sections thereof, which to that extent would be abrogated, what remains of the act of 1857 would still be of binding force and effect.

By section 4 of the act of 1857 the board of excise was given the power to fix the conditions before granting licenses. By section 6 it was provided that the licenses should not be granted to any persons to sell liquors to be drank on tlie premises, unless a person proposed to keep an inn, tavern or hotel. Section 7 (Laws of 1857), makes provision for the bond as follows: “Nor shall such license to keep an inn, tavern or hotel be granted, until the applicant shall have executed and delivered to the board of commissioners of excise herein provided, a bond * * * with a condition, that such applicant- during the time that he shall keep any inn, tavern or hotel, will not suffer it to be disorderly, or suffer any gambling or keep a gambling table of any description, within the inn, tavern or hotel, so kept by him, or in any outhouse, yard or garden, belonging thereto.”

Section 15 provides that any person who shall sell liquors to a minor shall be deemed guilty of a misdemeanor, and upon conviction shall be liable to a fine of twenty-five dollars for each and every •offense, and provides by whom such penalty can be recovered.

It will thus be seen that the act of 1857 made no provision for a saloon license, the board of commissioners being restricted to the granting of licenses to persons keeping an inn, tavern or hotel. It is contended further, that, because a specific penalty is prescribed for the violation of the law of selling liquors to a minor, that a recovery cannot be had on the bond. Our answer is that the legislature, having the power to regulate the sale of intoxicating liquors, could impose dual penalties for the same offense. When the statute fixes both the offense and the penalty and declares it a misdemeanor for doing any act, such as selling liquor without a license, they are entirely independent of each other, and the conviction for the misdemeanor is no bar to an action for the penalty. (People v. Stevens, 13 Wend., 341; Blatchley v. Moser, 15 id., 215.) An examination of the laws referred to will show that no act of the legislature since the passage of the act of 1857 contains anything repugnant to or inconsistent with sections 1 and 7, so that the situation to-day is, that, so far as the board of ■excise is concerned, no doubt exists as to their power, and as to their -duty to exact a bond from all persons who apply for a hotel, inn or tavern license. If, therefore, the contention of the appellant is correct, that the commissioners had no power to exact a bond at all from him for a saloon license, then the anomaly is presented that, while in all the other cases specified a bond must be given, a saloon keeper has the right to obtain a license without being required to give any bond. In 1870, by chapter 175, power was given to the commissioners to license any place to sell strong and spirituous liquors. This is the first authority for granting saloon licenses at all. It is true that, as amended by the Laws of 1873 (chap. 820), no mention whatever is made of the giving of a bond by a saloon keeper, and this is equally true with regard to chapter 340 of the Laws of 1883. Put chapter 496 of the Laws of 1886, being an amendment to chapter 340 of the Laws of 1883, provides that the board of commissioners of excise, “ if all other requirements of the law have been comjfiied with,, have power to grant license to .sell strong or spirituous liquors,. * * * to be drank on the premises.” Although, therefore, it may be true, as claimed by the appellants, that no mention of the bond as a. condition of granting a license is by express terms made a provision of any of. the acts subsequent to 1857, yet it seems, from a fair construction of all the various provisions of the excise law, that it was not the intent of the legislature to relieve the saloon keepers from giving a bond, while it imposes the condition upon others in the same business. In other words, we are of opinion that the general, policy of the legislature in extending the power to grant licenses to sell intoxicating liquors to others than hotel and tavern keepers, was to formulate a general plan or policy equally applicable to all classes, of licenses. This conclusion is justified not only by a reference to the general scheme enacted by the act of 1857, but is fortified bvtlie provision of the Laws of 1886, already referred to, which enables the commissioners, upon a compliance by the appellant with the other requirements of the law, to grant the license. One of the requirements of the law applicable to all persons entitled to a license was, by the act of 1857, the giving of a bond, and there is nothing-in any act subsequent to 1857 indicating that saloon keepers should enjoy greater advantages in the right to sell liquors than other-licensees. The legislature undoubtedly intended to treat all applicants for licenses alike, and that the requirement of a bond as a. condition in all cases was and is intended.

Third. Was there a violation of the condition of said bond by the sale of intoxicating liquor to a minor under the age of fourteen years?

The appellant contends that the licensee by selling liquor to a minor did not commit a breach of the condition of the bond, and that the sale of liquor to a minor is not such a violation as would entitle the commissioners of excise to recover upon the bond. This contention is sought to be upheld by a rigid construction of the act of 1857, as to the purposes for which a bond can be exacted. It is insisted that the sale of liquor to a minor is not a violation of any of the conditions expressly fixed by section 7, and that section 15,' by affixing a penalty and prescribing the manner in which the person guilty of selling liquor to a minor shall be punished, has thus indicated in what manner, and in what manner only, shall an offense of that character be visited. There can be no doubt that selling to minors is a violation of the law, and it is equally clear that the appellant violated the express condition of the bond by failing to “ keep and observe the provisions of the act of the legislature known as chapter 628 of the Laws of 1857, and supplementary thereto and amendatory thereof.”

It is insisted, however, that the commissioners exceeded their power in inserting in the bond the language last quoted, and it is claimed that even though a bond could be exacted its terms should be restricted to imposing conditions which are expressly prescribed by the act itself.

The conditions of the bond are not unreasonable, and they are directed to cover the evil which it was the evident intention of the legislature to prevent. We think it doubtful, moreover, if the appellants had the right to challenge the express conditions of the bond, for the reason that the license was issued and they accepted the privilege, and in consideration thereof executed the bond which has been sued upon; “ whenever a bond is or shall be required by law to be given by any person, in order to entitle ham to any right or privilege confea’red by law, or to commeaace aaay proceeding, it shall aaot be necessary for such bond to conform-in all respects to the form thereof prescribed by any statute, but the same shall be deemed sufficient if it coaaform thereto substantially, and do.not vaay iai any anattea-, to the prejudice of the lights of the paa’ty, to yrhom and for whose beaaefit such boaad shall have been given.” (2 R. S., 556, § 33; Supervisors, etc. v. Pindar, 3 Lans., 11; Farley v. McConnell, 7 id., 430; Foster et al. v. Foster, 7 Paige, 49; Ring v. Gibbs, 26 Wend, 510; Village of Warren v. Phillips, 30 Barb., 651.)

We do not think, however, that it is necessary to strain the construction of the statute in the present case, to uphold the power of the commissioners in maintaining their action upon the hond for a violation of any of the provisions of the excise law, not expressly enumerated in section 7 of the act of 1857, for the reason that the breach assigned in the present case seems to be covered by the conditions mentioned in section 7. One of the conditions so expressed is that the obligor will not suffer his place of business to become disorderly. In determining the construction or meaning to be given to the word “ disorderly,” it will not do to resort to the Penal Code as claimed by appellants, and take the definition therein given as to what would constitute a disorderly-house.

As defined by W ebster, it means “ not regulated by the restraints of morality; not complying with the restraints of order and law.” This definition, coupled with the one given by Bishojs on Criminal Law, in defining what is meant by disorderly-inns, etc. (§§ 1111, 1119), goes far to support the contention that the sale of intoxicating liquor to a minor under fourteen years of age is a disorderly act, and a breach of the condition of the bond. Moreover, as all the questions raised upon this appeal have been examined in the cases of The People, etc., v. Burget and The Board of Excise v. Detterlien (Manuscript Opinions, filed December 9, 1889), and determined adversely to appellants, further discussion is unnecessary.

We think the conclusions reached in those cases were correct, and that the judgment appealed from should be affirmed, with costs.

Lawrence, J. :

I concur with Justice O’Brien in affirming the judgment rendered at the Special Term on these grounds:

First. That the defendants are estopped from questioning the validity of the bond upon which the action is brought. Having obtained the license for Eckman on the faith and strength of that bond, the defendants should not be permitted to repudiate their obligation, nor aided by the court in escaping the consequences of a violation of its condition.

Second. I. am further of the opinion that there was a violation of the condition of the bond in selling liquor to a minor under -the age of fourteen years, for the reason that by such sale the obligor suffered his place of “ business to be disorderly,” within the fair and proper •construction of that term as used in the bond. In other words, that the term “ disorderly ” should not be limited in its construction or application to the definition contained in the Penal Code, but should receive the broad and general signification given to it at common law and by the lexicographers.

Van Brunt, P. J.

(dissenting) :

The plaintiffs in this action are the excise commissioners of the ■city of New York, and this action is based upon an alleged breach ■of the condition of a bond given by the defendants to the people of the State of New York upon the issuance to the defendant Eckman ■of a license to sell strong and- spirituous liquors upon the premises No. 21 Rutgers place.

It is not necessary, in view of the conclusion to which I have arrived, to consider the condition of the bond or the question as to the act complained of being a breach of such condition, matters which were argued upon this appeal.

The complaint alleges that the plaintiffs are the commissioners of ■excise; that the defendant Eckman made his application to said ■commissioners for the issuance of a license to sell strong and spirituous liquors, etc., in quantities less than five gallons at a time, to be drank upon the premises, and that said Eckman, as principal, and the •other defendants, as sureties, duly made and executed to the people of the State of New York and delivered to said board of commissioners a bond, as required by the statutes of this State; that the commissioners approved the bond and issued to the defendant Eckman a license to sell strong and spirituous liquors, and that subsequently, said bond was filed in the office of the clerk of the city .and county of New York. The complaint further alleges a breach of the condition of the bond and demands judgment for the penalty.

Three points were raised upon the argument: The first as to the plaintiff’s right to maintain the action ; the second as to the commissioners’ power to receive a bond from the defendant Eckman upon the granting of a license to him; and the third as to the violation of the condition of the bond. The last question, as has already been intimated, it is not necessary to discuss.

If tlie bond has any validity whatever, and can be enforced by-anybody, it is plain that the commissioners of excise have the power to maintain this action, because section 24 of chapter 628 of the Laws of 1857, which is still in force, provides thatu whenever a breach of the condition of such bond given upon the granting of any license shall happen, it shall be the duty of the commissioners * * * to prosecute the same and recover the penalty therefor.” There seems to be no question, therefore, but that the commissioners may maintain an action to recover for a breach of the bond provided any recovery at all can be had thereon.

One of the grounds upon which the decision of the court below rested, as appears by the opinion, was, that the instrument was exacted, but voluntarily executed and delivered to obtain the desired license, and that the obligors should not be permitted to question the validity of an obligation thus assumed. And it has been claimed, therefore, that even if there is no statutory provision requiring a bond to be given, it being discretionary with the commissioners as to the person to whom, and the conditions upon which a license should be issued, that if said commissioners require a bond as a condition precedent to the issuance of a license, it can be enforced if its conditions are violated.

It seems to me that a very plain answer to this proposition is, that there is no allegation in the complaint that this bond was exacted as a condition of issuing a license in the exercise of any discretion upon the part of the commissioners; but, on the contrary, it is alleged to have been a bond delivered as required by the statutes of the State; and, therefore, unless its delivery was required by the statutes of the State, it never had any legal existence; and, as will be seen hereafter, the commissioners have no power to exact additional obligations to those mentioned in the statutes as conditions of issuing a license. They have a discretion to refuse to issue a license, but when they issue the license the licensee is under no obligation, except those which the statute imposes.

It has been suggested that the excise board have an absolute discretion in reference to the conditions exacted because of the provisions contained in section 4 of the chapter above referred to, which provides that all licenses shall be signed by the commissioners granting the same, but they shall not be issued until the requirements fixed by the board shall have been complied with. But this provision evidently refers to the rules which the board shall adopt in reference to the manner in which the business of apjfiying for licenses shall be carried on, the nature of the proof of the facts necessary to be established to the satisfaction of the board of excise before tbny issue a license, the nature of the security upon the bonds to be approved by them, and the amount of the license fee.

It certainly was not the intention of the legislature to give the board of excise the right to impose any such arbitrary conditions as they might choose under the provisions of the section referred to as a condition of the issuance of a license.

A very brief history of the legislation in resj>ect to the question of the issuance of licenses will, it seems to me, demonstrate the fact that there is no requirement of statute at the present time under which a bond may be exacted by the excise commissioners as a condition of issuing a license other than in case the applicant proposes to keep an inn, tavern or hotel.

By chapter 628 of the Laws of 1857, section 2, it is provided that the commissioners of excise shall have the power to grant licenses to keepers of inns, taverns or hotels, being residents of the town or city where such inn, tavern or hotel is proposed to be kept, to sell strong and spirituous liquors and wines to -be-drunk in their houses respectively; and to storekeepers, being such residents, licenses to sell such liquors and wines in quantities less than five gallons, but not to be drunk in their shops, houses, outhouses, yards or gardens, and it was also provided that they should have power to determine the sums to be paid for a license for each person applying within certain limits; and by section 6 it is provided that licenses shall not be granted to any person to sell strong and spirituous liquors and wines to be drank on the premises of the person licensed unless such person proposes to keep an inn, tavern or hotel, nor unless the commissioners are satisfied that the applicant is of good moral character, etc., nor unless on the petition of not less than twenty respectable freeholders of this State residing in the election district where such inn, tavern or hotel is proposed to be kept, etc. Section 7 provides that no such license to keep an inn, tavern or hotel shall be issued until the applicant shall have executed and delivered to the board a bond to the people of the State in the penal sum of $250 with sufficient sureties * * * conditioned that such applicant during the time he shall keep such inn, tavern or hotel will not suffer it to be disorderly, etc.

Section 10 provides that no inn, tavern or hotel-keeper, who shall trust any person other than those who may he lodgers in his house, for any sort of spirituous liquors or wines shall be capable of recovering the same by any suit.

Section 11 provides that in all licenses that may be granted (except to inn, tavern or hotel keepers), to sell strong and spirituous liquors ■or wines in less quantities than five gallons, there shall be inserted an express declaration that such license shall not be deemed to authorize the sale of any liquors, etc., to he drank in the house or shop of the person receiving such license, etc.

Section 12 provides that such licenses shall hot be granted unless the commissioners are satisfied that the applicant is of good moral character, nor until such applicant shall have executed a bond to the people in the penal sum of $500, who shall justify in double the amount, conditioned that he will not sell or suffer, to be sold any strong or spirituous liquors or wines to be drank in his shop or house, etc.

Thus it would appear that there were two classes of persons to whom the commissioners might issue licenses. The one was those who proposed to keep an inn, tavern or hotel, who should give a bond in the penal sum of $250; and the other class of licenses being-issued to those persons who jn-oposed to sell liquors and wines, less than five gallons not to be drank upon the premises, who were required to give a bond in the penal sum of $500.

The foregoing law remained substantially unchanged until the year 1870, when, by chapter 175 of the laws of that year, the legislature greatly extended the power of the commissioners to issue licenses.

Section 1 of that act provided that the board of excise shall have the power to grant licenses to any person of good moral character, approved of by them, permitting him to sell and dispose of, at any one named place within such city, town or village, strong or spirituous liquors, wines, ale and beer in quantities less than five gallons at a time, upon receiving- a license fee to be fixed in their discretion, not less than thirty nor more than one hundred and fifty dollars; such license shall only be granted on written application of said party, signed by the applicant or applicants, specifying the place for which license is asked, and the name or names of the applicant or applicants, and of every person interested or to be interested in the business, to authorize which the license shall be issued. Persons not licensed may keep, and, in quantities of not less than five gallons at a time, may sell and dispose of strong and spirituous liquors, wines, etc., provided that no part thereof shall be drunk or used in the building in which the same shall be so kept, disposed of or sold.

Section 6 provides that the provisions of the act passed April 16, 1857 (chap. 628 being probably referred to), except where the same is inconsistent or in conflict with the provisions of the act of 1870, shall be taken and construed as part of that act, and be and remain in full force and effect throughout the whole State.

The question is presented whether, under this act of 1870, the board of commissioners can exact a bond as a condition of granting a license except from a person who proposed to keep an inn, tavern or hotel.

It seems to me clearly that no such right exists. The provisions of the act of 1857 in respect to the giving of a bond are totally inapplicable to the case-of a license issued to sell liquor to-be drank upon the premises, unless the person keeps an inn, tavern or hotel.

It is to be observed that, under the act of 1857, two classes of licenses are mentioned, and under the act of 1870 but one is referred to. The restriction upon licensees who do not propose to keep an inn, tavern or hotel that they shall not sell liquor in quantities less than five gallons to be drank upon the premises is abolished. And we have a general power to grant licenses, to any proper persons who apply for the same, to sell liquor in quantities less than five gallons to be drank upon the premises; the conditions being that the persons shall be approved' by the commissioners and be of good moral character, with certain details in regard to the method of application.

Now, if such an applicant who does not propose to keejD an inn, tavern or hotel is chargeable with the duty of furnishing a bond, which bond is it ? The bond which the hotel keeper is bound to give under the act of 1857, or the bond which the other licensees are required to give where they sell liquor in quantities less than five gallons, but which cannot be drank upon the premises ?

Tlie new licensees under the act of 1870 are certainly more nearly allied to the latter class than they are to the former, and the act of 1870 is evidently intended to be a removal of the restriction placed by the act of 1857 upon the second class of licensees, that no part of the liquor sold by them shall be drank upon the premises; and such restriction being removed, the provisions of section 12 of the act of 1857, in regard to that class of licensees, became absolutely inapplicable, because one of the conditions of the bond which they are required to give is that the licensee will not sell or suffer to be sold any strong or spirituous liquor to be drank in his shop or house, a thing which he is expressly authorized to do by the act of 1870. Therefore, the provisions of the act of 1857, in reference to such licensee giving a bond, are in conflict with the provisions of the act of 1870 and inconsistent therewith, and were not re-enacted by the provisions of section 6 of said act above referred to.

, It is clear that the provisions, in regard to bonds to be given by hotel keepers, cannot apply to saloon keepers, because the condition of that bond, as fixed by the statute, is that such applicant, during the time he shall keep such inn, tavern or hotel, will not suffer it to become disorderly, And, as has already been seen, the commissioners of excise have no power to alter the statutory condition of a bond in any particular.

The next legislation upon the subject is by chapter 549 of the Laws of 1873, under which section 4 of the act of 1870 is amended by requiring a-posting of the license and compelling the board of excise to keep a record of all persons licensed, etc.

In 1883, by chapter 340, it was enacted that the board of excise, in cities of this State having a population of over three hundred thousand, shall, if all other requirements of the law have been complied with, have power to grant licenses to sell strong and spirituous liquors, etc., to be drank on the premises, to any person or persons of good moral character, whether or not they juopose to keep an inn, tavern or hotel, provided that no such license shall be granted unless such commissioners are satisfied, upon examination, that the applicant is of good moral character and the license may properly be granted for such sale in the place proposed; the legislature here clearly indicating again that by the act of 1870 the provisions of the act of 1857, in regard to hotel keepers, were not interfered with, but that the provisions of the act of 1870 were a mere removal of the restrictions upon the other licensees in respect to the sale of their liquors.

It has been urged that the use of the language in this section, “ if all other requirements of the law have been complied with,” is a recognition of the duty of such an applicant to give a bond under the act of 1857. But, as already seen, if any bond is to be given, it was a bond such as a store keeper was required by that act to give, and not the bond which the hotel keeper was required to give; and that the condition of such a bond, as required by the act of 1857, was absolutely incompatible with the provisions of the act of 1870.

"We next have chapter 496 of the Laws of 1886, purporting to amend chapter 340 of the Laws of 1883, entitled “An act to regulate the sale of intoxicating liquors in cities having a population (of over 300,000 inhabitants.” By this act the limit was reduced to 150,000, and provision was made for application to the court in case a license should be arbitrarily refused. The words, “ if all other requirements of the law have been complied with,” are also inserted in this act, but, as already seen, this evidently cannot refer to the giving of the bond required by the act of 1857.

It may be said that it is a harsh condition to compel an inn keeper to give a bond .and not other persons. But the courts cannot be responsible for the omissions of the legislature; neither can we complete, by judicial decision, that which the legislature has left unfinished. It seems to me it was evidently the intention of the legislature to abolish the exaction of bonds; trusting for the enforcement of discipline to the additional powers which were given to the board of excise to revoke licenses, a power which did not exist in them under the act of 1857.

I am of the opinion, therefore, that there was no power in the board of commissioners to exact the bond in question, and, therefore, there can be no recovery thereon, and that the demurrer should have been sustained.

The judgment appealed from should be reversed, and the demurrer sustained, with costs.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Yan Brunt, P. J.:

license: Public Domain

text:
    MICHAEL BOWEN, Respondent, v. MICHAEL SWEENEY and Others, Appellants, Impleaded with Others, Defendants.

      Partition — an action by one out of possession — a void devise — when the complaint may be amended — what interest disqualifies — tenant by the curtesy initiate — evidence in denial offrcmd and undue influence.

    Tlie right of action conferred by section 1537 of the Code of Civil Procedure, under which a person, claiming as heir of one who died seized of real property, may, although out' of -possession, maintain an action of partition, notwithstanding an apparent devise to another, did not exist prior to the passage of chapter 238 of the Laws of 1853.

      Semble, that it is such a new right of action that it cannot be imported into a complaint in partition by amendment.
    Where the defendants, in an action for partition, had by demurrer called the attention of the plaintiff to his failure to comply with the requirement of said section 1537 that he must allege that the apparent devise was void, and he still failed to allege it in his amended complaint, it was held that it was improper to allow such an amendment upon the trial.
    One who, as husband of a devisee under a will, is tenant by the curtesy initiate, is not incompetent by reason of interest to testify that he heard the testatrix make statements relative to her will near the time of its execution.
    Where a will was alleged to have been executed through fraud and undue influence, and it was further claimed that the testatrix could not read, the exclusion of her declarations, and of evidence of her possession of the will before its execution, and that a witness heard her read it, is a material error.
    Appeal by the defendants, Michael Sweeney, Catharine Gallagher and Erancis Gallagher, from an interlocutory judgment of the Supreme Court, entered, after a trial at the New- York Circuit before the court and a jury, in the clerk’s office of the city and county of New York on the 5th day of November, 1890, in favor of the plaintiff and against said defendants, declaring an alleged will of Teresa Hatten void and directing a partition and sale of certain premises; with notice of an intention to bring up for review upon such appeal an order, entered in said clerk’s office on the 21st day of October, 1889, directing the trial of the action before the court and a jury at a designated trial term thereof, and an order, entered in said clerk’s office on the 10th day of December, 1890, denying the defendants’ motion to set aside the answers and verdict of the jury to questions submitted to them, and for a new trial upon the minutes.

      TP". II. Amonto, for tlie appellants.

      F. B. Gandler, for the respondent.
   Yan Brunt, P. J.:

This action was brought for a partition and sale of certain property-in the city of New York, the plaintiff claiming to be interested therein as tenant in common with certain of the defendants. The first complaint in the action was demurred to by the appellants, and the demurrer was sustained apparently on the ground that no facts were alleged which showed any interest in the realty belonging to the demurring defendants, and that there was no clear averment of fact upon the subject of a last will and testament of Mary Hatten, or .the absence of such an instrument. The plaintiff thereupon .amended his complaint, alleging that Mary Hatten had died intestate, unmarried and without issue. To this complaint the appellants answered, setting up that the said Mary Hatten had made a will, by which she devised to them all her estate, of which the premises in question were part, and that such devisees were in the exclusive possession thereof. The court thereupon made an order directing that the cause be put upon the circuit calendar, to the end that the trial of the action might be proceeded with, and the issues of fact therein contained, or such of them as might be necessary, might be tried before a court and jury.

Upon the case coming up for trial at the circuit, the will of Mary Hatten, referred to in the answer of the defendants, was introduced in evidence after proof, and thereupon the plaintiff sought to attack the same by evidence in reference to its execution. Objection being raised, apparently because of the condition of the pleadings, the plaintiff’s counsel moved to amend his complaint by an allegation that Mrs. Hatten left what purported to be a will, but which was not her last will and testament, because it was not properly executed, and because she was not competent to make a will, and that it was obtained from her in an unlawful manner by undue influence. Objection was made by the defendants’ counsel; the objection was overruled and an exception taken. The plaintiff’s counsel thereupon reduced the amendment to form, and the court stated that the amendment would be granted upon terms, and that if the defendants desired, a juror would be withdrawn and the trial postponed.

The defendants’ counsel stated that he did not desire to postpone the trial, and asked that the amendment be reduced'to writing and sworn to by the plaintiff, which was done, and the trial thereupon proceeded, and upon the close of the testimony certain issues were framed and submitted to the jury. The peculiarity of one of these issues it is not necessary to discuss, in view of the result which follows the decision of this appeal.

It is now urged that it was error in the court-to allow the amendment which was done upon the trial, and in this view we are inclined to concur. The attention of the plaintiff’s counsel was distinctly called to the defect in his pleading upon the decision of the demurrer to the previous complaint, and he failed to amend his complaint meeting this objection. On this state of facts, as the complaint existed at the time the trial of the issues were commenced at the circuit, the plaintiff had no standing in court, he not being in possession of the property sought to be partitioned, or any part thereof.

Whatever rights he had were conferred by section 1537 of the Code, where it is provided that a person claiming to be entitled as a joint tenant or tenant in common, by reason of his being the heir of a pei-son who died holding and in possession of real property, may maintain an action for the partition thereof whether he is in or out of possession, notwithstanding an apparent devise thereof to another by the decedent and possession under such devise, but in such an action the plaintiff must allege and establish that the apparent devise is void.

The right to maintain such an action did not exist prior to the passage of chapter 238 of the Laws of 1853, and, hence, it is an entirely different action from the ordinary action of partition which could only be brought where two or more persons held and were in possession of real property; possession being a necessary ingredient to the maintenance of the action. Chapter 238 of the Laws of 1853 was an innovation in the procedure for partition, and- conferred a new and different right of action from that which ever existed before. And it may be doubtful whether it is not such a new and separate and. distinct cause of action that it cannot be imported into a complaint for partition by amendment. But whether it was so or not, we do not think that upon a trial, after the notice which this plaintiff had received of the defects in his 'complaint, that the amendment should have been allowed.

Without discussing in any way the merits of this case or considering the testimony which is referred to at so great length upon the points of counsel in reference to the sufficiency of the proof to sustain the findings of the jury, it will only be necessary to call attention to one or two exceptions to the admission of evidence which are fatal to the judgment in question.

One Francis Gallagher was called as a witness upon the part of the defendants. Much testimony had been given in reference to the knowledge which Mrs. Iiatten had of this will and of the circumstances under which it was executed, it being claimed that she did not know what she was doing, and that it was procured through the undue influence and fraud of the devisees. After having testified that he was the husband of Mrs. Gallagher, one of the devisees named in the will of Mrs. Hatten, he was asked : Had you a conversation with her on the morning before she executed the will ? ” This was objected to on the ground that the witness is interested in the will and is not competent to testify. He then testified : “ I have children by my present wife.” The objection was sustained and the defendants excepted. He was then asked: “ Did you hear Mrs. Hatten say anything about executing or having a will made for her before she executed it ? ” This was objected to; the objection sustained and defendants excepted.

Q. Did you know that Mrs. Hatten had this will in her'possession for three or four days before the morning before she executed it ? ” Objected to; objection sustained ; exception.

“ Q. After the will was executed did you hear Mrs. Hatten read it 1 ” Objected to; objection sustained ; exception.

No ground is stated for these last three objections, and it is claimed by the respondent that as the objection was a general one, if the evidence could be excluded on any ground whatever, the court will not hold on appeal that there was enor in excluding the evidence. We are not aware of any such rule. On the contrary, the only ground upon which an objection can be sustained, without any ground being stated, is that it is irrelevant and immaterial. But we think that it is fair in the construction of these objections to assume that the evidence was ruled out upon the same ground as was stated in the first objection above referred to.

In making this ruling, however, the court evidently erred. It is true that if Mrs. Gallagher died leaving no will and without having-conveyed her real estate, the witness would be entitled to a tenancy by the curtesy. But, as this is simply a contingent interest and not vested, it was no disqualification. The children of a party living have precisely the same interest in the property owned by their parent. If he dies intestate, and without having conveyed the property, it falls to them. But they have never been excluded upon the ground of interest.

This rule is laid down in 1 Greenleaf (390), where it is stated that the true test of the interest of a witness is that he will either gain or lose by the direct legal operation and effect of. the judgment, or that the record will be legal evidence for or against him in some other action. It must be a present, certain and vested interest, and not an interest uncertain, remote or contingent. Thus the heir apparent to an estate is a competent witness in support of the claim of his ancestor, though one who has a vested interest in remainder is not competent, and if the interest is of a doubtful nature the objection goes to the credibility of the witness, and not to his competency.

This rule was applied in the case of Hobart v. Hobart (62 N. Y., 80), and In re Clark (40 Hun, 233), and in that ease the distinction between the contingent interest of a husband in the living wife’s real estate and the vested interest of a wife in the real estate of her husband is pointed out. In the one case the interest may be terminated by the'wife; in the other, the husband cannot divest his .wife of her right to dower. Therefore, the husband was a competent witness in reference to transactions between himself and the deceased.

■But it is-urged by the respondent that if these questions had been answered, the testimony, at most, would only have tended to prove that the decedent knew when she executed the will that it was her will, and that fact the jury and the court found in favor of the appellants, so as they were able to establish that fact without any of the answers to these questions, they were not prejudiced by the rulings of the court excluding them.

But this claim does not, by any means, meet the objection. It is claimed that this will was obtained by fraud and undue influence, and the jury have so found. Now, the declarations of Mrs. Hatten, in reference to her will, made before she executed it, are certainly exceedingly important upon such an issue; as also is the evidence of her possession of this will for days before its execution. And in view of the attempt to establish the fact that Mrs. Hatten could not read, evidence going to show that the witness heard her read the will in question, seems to be most material.

We see no escape from holding that the exclusion of this testimony was error, and very serious error, to the appellants.

We think, therefore, that the judgment must be reversed and a new trial ordered, with costs to appellants to abide the event.

O’Brien, J., concurred.

Judgment reversed and new trial ordered, with costs to the appel- ■ lants to abide event.


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

text:
    THE NASSAU BANK, Respondent, v. JOSEPH CAMPBELL and Others, Executors of WILLIAM CAMPBELL, Deceased, Appellants.

      Bills and notes — notes referring to collaterals — release of the collaterals by the holder — it discharges the indorser — tender of the securities.

      A firm, being indebted to a bank made two promissory notes, payable on demand, with interest, to the order of one William Campbell, upon the face of which it appeared that there had been deposited, as collateral security for their payment, certain bonds, which were secured by a mortgage upon real estate.
    After William Campbell had indorsed the notes for the accommodation of the firm, and they had been turned over to the bank, the mortgage was by the bank made subordinate to what had been a junior lien on the land. The effect of this was to impair the value of the bonds.
    In an action brought by the bank against the executors of William Campbell to enforce payment of the notes:

      Held, that as William Campbell, upon payment of the notes, would have been subrogated to the rights of the bank in the bonds, its act impairing their value discharged him and his estate.
    'That the bank was not bound to tender the securities or account for them upon the trial.
    Appeal by Joseph Campbell, Emma Campbell and Martha Camp-hell, as executors of William Campbell, deceased, from a judgment of the Supreme Court, entered in the office of the cleric of the city and county of New York on the 27th day of June, 1891, upon a. verdict for the plaintiff for $12,874.94 and interest, after a trial at the New York Circuit before the court and a jury.
    The evidence tended to show that the firm of Phyfe & Campbell owned property in New York, known as the Plaza. They had mortgaged it to an insurance company, and had given a second mortgage to another person as trustee for bondholders. They needed more money. The insurance company was willing to lend more provided the new mortgage to it should take precedence of' the second mortgage to the trustee for the bondholders. The bondholders agreed to this, and their bonds were surrendered and stamped as deferred in payment to the new loan of the insurance company. Prior to this transaction one Wyclcoff had borrowed money of the Nassau Bank, and had pledged, as collateral thereto, Plaza bonds which he had received from Phyfe & Campbell, who were indebted to him. Phyfe & Campbell wished Wyckoff to agree to have the payment of his bonds deferred, and he required the indorsement by William Campbell of two notes, which he demanded in part payment of the debt of Phyfe & Campbell to him. Willaim Campbell indorsed the notes for the accommodation of the firm, which were in the following form :
    “ $5,000. New York, Apr. 12, 1886.

      “ On demand, after date, we promise to pay to Wm. Campbell, or order, Five thousand dollars for value received, with interest at the rate of 6 per cent, per annum, having deposited with this note as-collateral security, with authority to sell the same at public or private sale, on the non-performance of this promise and without notice, five Fifth Avenue Plaza Bonds for One thousand dollars each, with accrued interest on the same from Oct. 1, 1884.
    “PHYFE & CAMPBELL.”
    “$4,810. New York, April 12, 1886.
    “ On demand, after date, we promise to pay to Wm. Campbell, or order, forty-eight hundred and ten dollars, for value received, with interest at the rate of per cent per annum; having deposited with this note, as collateral security, with authority to sell the same at public or private sale, on the non-performance of this promise and without notice, four Fifth Avenue Plaza Bonds, for one thousand dollars each, with accrued interest on the same from Oct. 2, ’84.
    “PI-IYFE & CAMPBELL.”
    WyckofE turned the notes over to the bank, which a day or two thereafter allowed the bonds, which it held as collateral, to be stamped as deferred. The bonds subsequently became worthless.

      William AT. iiww, for the appellants.

      A. P. Whitehead, for the respondent.
   Yan Brunt, P. J.:

This action was brought to recover upon two promissory notes drawn on demand, with interest, it appearing upon their face that there had been deposited, as collateral security to the notes, nine Fifth Avenue Plaza bonds for $1,000 each, with accrued interest on the same from October 1, 1884. Each of the notes bore date April 12, 1886, and was made by Phyfe & Campbell and indorsed by William Campbell, the testator of the defendants. All the bonds of the character stated in these notes to have been pledged as collateral were secured by a mortgage upon certain property in the city of New York.

On the 14th of April, 1886, after William Campbell had indorsed the' notes in question, the mortgage in question was surrendered with the consent, of the holders of the bonds so as to leave the security of the bonds subservient to other loans upon the property mortgaged, which they were not before such cancellation. And this was done without the knowledge of the indorser, William Campbell.

We think this proceeding discharged the indorser. The notes upon their face showed that certain securities were pledged as collateral, and the indorser had a right to assume that these securities would follow the notes in the same condition in which they were at the time he made the indorsement; and any trafficking with these securities, by which their value was impaired, necessarily operated as a release of the indorser.

It is clear that if any person had purchased these notes unaccompanied by the bonds, the indorser would not be held, because, upon payment, he is entitled to be subrogated to the securities there stated to have been pledged for their payment. So, if these securities are impaired in value by the action of the holder after indorsement of the notes, the same rule must necessarily apply. The indorser was indorsing a note secured in a certain way. His liability to final loss by reason of his indorsement of the note might depend very largely upon the value of the securities pledged for its payment; and, therefore, any diminution of their value was a direct detriment to him. It seems to us, therefore, that the necessary conclusion is, that the changing of these securities subsequent to the indorsement of the notes necessarily releases the indorser, as the bonds which, upon the face of the notes, are represented as accompanying the same, have been severed therefrom.

Some point was made in reference to the protest of the notes in question, that the bonds not having been tendered at the time of the demand the indorser was discharged. But the difficulty with this position is, that no such point was made during the trial, nor is any such point raised by the pleadings. The ground of the motion to dismiss, based upon the question of the collateral securities, was stated to be that, as the plaintiff had neither tendered the return of the securities, nor made any accounting for the same, he could not recover, which, distinctly, did not refer to the time of making the protest, but up to the time of trial; and no attention was drawn to the question as to what was done at the time of the protest. . The plaintiff was not bound to either tender the securities or account for the same upon the trial. If the indorser desired the securities, he could pay the notes. If anything had been released upon the securities, that was a matter of defense.

Upon the whole case, we are of opinion that the judgment should be reversed and a new trial ordered, with costs to appellants to abide event.

Lawrence, J., concurred.

O’Brien, J.:

The bank held fifteen bonds of the Fifth Avenue Plaza Company as collateral security for the loan of $7,500 to Wyckoff. By agreement between Wyckoff and the bank the bank gave up two of the bonds to Wyckoff, and also permitted the remaining thirteen to be postponed to a new mortgage to be given to the New York Life Insurance Company.

Both of these considerations, as between "Wyckoff and the bank, were good and valuable, and, if nothing else appeared, would have been a sufficient consideration for Campbell’s indorsement.

There is no doubt that the postponement of the payment of the thirteen bonds to the new mortgage impaired the value of them, and by giving up the two bonds to "Wyckoff the bank lessened its security which it held for the payment of Wyckoff’s note. To what extent the indorser was injured would, under such circumstances, be a question of fact. The evidence, however, tended to show that this arrangement between "Wyckoff and the bank was made prior to April 12, 1886, and that the consideration for the postponement of the payment of the bonds to the new mortgage, and the giving up of the two bonds to "Wyckoff by the bank, was under the agreement to deliver the note indorsed by the defendant Campbell. , It will further appear, from the testimony, that the day fixed for stamping the bonds with the statement that they were postponed to the lien of the new mortgage and the giving of the notes sued upon with Campbell’s indorsement, was originally April 12,1886, and the notes bear date as of that day.

The closing of the transaction was, however, postponed until the fourteenth, when "Wyckoff went to the bank, obtained the fifteen bonds and had them all stamped as postponed to the new mortgage. The bank, as stated, gave up to him two. of the bonds, retaining thirteen, of which thirteen nine are the bonds mentioned in the notes.

Two questions upon this evidence, it seems to me, were presented:

First. As to whether the surrender by the bank of the security it then had in consideration of the receipt of the notes indorsed were not part and parcel of one transaction ?
Second. Even if this should not be so, whether or not any injury, and if so how much, resulted from postponing the payment of the nine bonds, held as collateral, to the new mortgage?

In connection with these questions it must be remembered that the notes themselves only specified nine bonds, whereas, in point of fact, the bank received and held thirteen. Moreover, it must be noticed that the bonds after being stamped answered the description of the collaterals mentioned in the notes, and thus another inference arises in favor of the view that the indorsement of William Campbell was obtained by Phyfe & Campbell upon the notes for the purpose of carrying out the very agreement made by Wyckoif with the bank. It is true there is no evidence showing that when Campbell indorsed the notes that knowledge was brought home to him as to the exact use to which they were finally put, or any knowledge that the collateral bonds were to be postponed to the lien of the new mortgage.

There is some evidence to support the conclusion that Phyfe & Campbell, who took part in having the bonds stamped, obtained the indorsement for their accommodation and to carry out the agreement which they had made with Wyckoif for the payment of their debt to him. If, therefore,, we assume the adjustment between Wyckoff and the bank to have taken place on the twelfth, and that in consideration of the surrender of the two bonds and the stamping of the remaining bonds as postponed to the lien of the new mortgage, Wyckoif delivered the notes indorsed, and if it be conceded that the bank refused to carry out the arrangement until it received the notes so indorsed, a recovery upon these facts could have been had as against the indorser, for the reason that this would have presented a case where one indorses for the accommodation of another, and notes so indorsed are used for the very purpose for which they were indorsed. The delay from the twelfth to the fourteenth in closing would not change the rights of the parties.

The learned judge, upon the trial, however, directed a verdict in favor of the plaintiff. This, I think was error, for the reason that there were certain questions of fact presented upon the evidence which should have been presented to the jury. I concur, therefore, in the result reached by the presiding justice, that the judgment must be reveísed and a new trial ordered.

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


author: Van Brunt, P. J.: O’Brien, J.

text:
    SOPHIA BROWN, Individually and as Executrix of EDWARD H. BROWN, Deceased, Respondent, v. LAFAYETTE J. FINCH, Appellant.

      Partnership — surviving partner — receiver, when not appointed on the application-of the repi'esentatives of a deceased partner.

    Articles of copartnership, entered into between Edward H. Brown and Lafayette J. Finch, provided that the firm should not be dissolved by the death of either partner; that Finch, in case Brown died, should continue the business and pay his widow a certain sum monthly during her life; that a balance should be struck twice a year, and whatever sum was due the widow should be paid her, and that she should have a right to examine the books at'any time. In case of the death of Finch a somewhat similar provision was made for his widow.
    There was a provision for an accounting when the partnership should terminate;, and the further provision that Brown, who had the largest interest, should pay Finch what was found due him. The good will and firm name were to remain, in any event, the property of Brown, except that in case either of the parties-died and left no widow the surviving partner should take the entire good will and business; and with the further exception that if both Brown and his widow died, Finch should take the good will and name absolutely. Brown died.
    In an action brought by his widow for an accounting:

      Held, that whatever were the rights of Brown’s widow she was not a partner with Finch, and that, therefore, it was improper for the court, because of dissensions between the widow -and Finch, to take the business from the latter by the appointment of a receiver. (O’Brien, J., dissenting.)
    Appeal by the defendant Lafayette J. Finch from an order of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 11th day of January, 1892, which, among other things, appointed a receiver pendente lite of the business of Brown & Pulverman.
    In 1887, Edward H. Brown and Lafayette J. Finch entered into a partnership, to continue five years, under the firm • name, of Brown & Pulverman, in which firm Finch had an interest of one-fifth. Brown died in 1888.
    A. V. Booraem, for the appellant.

      A. J. Dittenhoefer, for the respondent.
   Van Brunt, P. J.:

It is apparent from the memorandum made by the court below, upon the appointment of the receiver herein, that it was based upon tbe fact tliat the parties to the action were partners with each other, and that as.irreconcilable difficulties had ai’isen between them, the .appointment of a receiver became a matter of course.

We fail to see how it is possible to hold the plaintiff and defendant to be copartners in the business which was being conducted by the defendant under the firm name of Brown & Pulverman. The complaint was not drawn upon any such theory, and the affidavit of the plaintiff, upon which this motion was founded, admits that such was not the fact. The plaintiff declares that the copartnership was dissolved by the death of her testator, and the relief demanded is that an account be taken of all the dealings and transactions of said ■copartnership from the time of the commencement to the time of its dissolution by the death of Brown, and that the defendant account for all his dealings and transactions in regard to the property, assets and effects of said copartnership since such dissolution, and further that the said copartnership be adjudged and decreed to be dissolved.

This latter prayer was merely asking for a legal adjudication, that by the death of Brown the copartnership had been dissolved, and not in any way was it claimed that the plaintiff was entitled to any relief except as representing the interest of Brown, deceased.

An examination of the articles of partnership annexed to the complaint shows that the relation of partners does not exist between the plaintiff and the defendant, and that, the copartnership did not •continue after the death of the plaintiff’s testator, unless a copartnership can be composed of one individual. The defendant was merely the surviving partner of a partnership which had been dissolved, and carrying on business as such according to the terms of the articles of copartnership between himself and the plaintiff’s testator.

It is to be observed that by the articles of copartnership it is provided that the death of neither of the parties shall work a dissolution of the partnership, but that in the event of the death of the party of the first part, viz., Brown, the party of the second part (the defendant), shall continue the business and pay the widow of the party of the first part one hundred dollars a month during her life, the profits arising on the interest of said party of the first part as it existed at the time of his death ; and that on the first days of January and June a balance should be struck and the defendant should pay to the said widow the amount of any balance to her credit; and further, the said widow of said party of the first part shall have a right, either by herself or her authorized representative, to examine the books of the firm at any time. This latter provision shows conclusively that it was not the intention of the parties that the widow should be a partner, otherwise it would have been entirely unnecessary to grant an authority upon the part of the widow to examine the books.

Then follows a provision in respect to what should be done in case of the death of the defendant. In the event of his widow surviving him, she is to be paid a monthly stipend and a balance of profits by the party of the first part, but no provision is made for an examination of the books by the widow of the defendant; and it would hardly be claimed, under this provision, that in case of the death of the defendant his widow would have been entitled to exercise the rights of a partner.

The articles contained the further provision that whenever the partnership was terminated, for any cause, there should be an accounting and adjustment of copartnership affairs, and that the party of the first part or his legal representatives, within six months, shall pay to the defendant the sum to his credit on the books of the firm at the time of the dissolution, together with his proportionate share of the profits and increase of the firm, and then provided that the good will and firm name should be the exclusive property, in any. event, of the party of the first part and his representatives, except as provided in sections 18 and 19.

By paragraph 18 it is provided that in-the event of the death of either of the parties not leaving a widow, of in the event of the death of the widow of either of the parties during the continuance of the agreement, then the entire good will of the business shall belong to the surviving partner, subject only to a legal accounting to the legal representatives of said deceased partner; or if he dies leaving a widow him surviving, then to the legal representatives of his widow for the profits accrued at the time of the death of said deceased partner, or at the time of the death of his widow if said partner dies leaving a widow him surviving.

Paragraph 19-pro vides that after the death of both Brown and his widow tlie firm name may be used by the defendant to continue the business on his own account, but he shall have no power to use said firm name, except in accordance with the terms of the agreement, at any time prior to the death of Brown or his widow, without written agreement to that effect.

These provisions show that it was the intention of these articles that the business should continue during the lifetime of the partners, and if either of them died, of his widow, in order to provide for such widow during her life; and that if the partner Brown died first leaving a widow, upon the death of the widow the defendant was absolutely entitled to the good will and firm name without being liable in any way to the legal representatives of said Brown or of his widow.

The articles further provide for an indefinite continuance of the partnership, unless six month’s notice should be given by either of the parties thereto, or the widow of the partner Brown. They provide that, in case of a dissolution of the copartnership by notice from the defendant after the death of Brown and without the consent of his widow, the defendant should not, during the lifetime of the widow, act as an advertising agent, etc., within certain limits.

Under these circumstances, it is difficult to see how the relation of partners existed between the plaintiff and defendant. Whatever her rights may be in respect to this business, it does not seem to be that of partner. Neither has the plaintiff any interest in the firm name or the good will of the business which can extend beyond her life, as the provision of the articles is that after her death the defendant shall own this firm name and be at liberty to continue business without accounting either to Brown’s representatives or to his widow’s.

We think that if a claim was made against the plaintiff as a copartner in this business, for losses sustained in the business the claimants would find it exceedingly difficult to hold her, individually or representatively, liable therefor.

It having been the manifest intention of the parties that in case of the death of either the survivor should continue the business and have sole charge thereof, there should be exceedingly cogent reasons adduced before the court should deprive the surviving partner of the fruits of that which had been assured to him by the agreement with his copartner. Taking possession of the business in question would seem to be its absolute destruction, and would work irreparable injury to tlie defendant, wlro alone lias tlie right to continue the same.

The facts presented upon the moving affidavits are denied in the main, and the true condition of affairs can only be ascertained by the examination of witnesses, and there is no evidence that irreparable injury will happen to the plaintiff if final relief is postponed until the decision of the questions of fact upon the trial.

In the decision of this appeal we express no opinion as to what the ultimate rights of the plaintiff might be in an action brought in the form of the one at bar, leaving that question to be determined upon the trial of the case.

We think, therefore, that the order appointing the receiver should be reversed, with ten dollars costs and disbursements to the defendant to abide the final event.

Patterson, J., concurred.

O’Brien, J.

(dissenting):

I do not concur in the result reached by the learned presiding justice for reasons which may be briefly stated.

The plaintiff sues in her individual right and as executrix of her husband. Her claim is predicated upon the written agreement which is set forth in the complaint, and which has been analyzed by the presiding justice.

It may be difficult to determine just what the plaintiff’s status thereunder was, but it seems to me to be more nearly analogous to that of a partner than any other. The agreement itself provided that the death of one of the two partners should not work a dissolution of the copartnership. Notwithstanding this provision, unless we assume that plaintiff became a copartner, the copartnership would have been dissolved, there remaining but one person who, of himself, could not constitute a coj>artnership, it requiring for that purpose more than one individual.

After the death of plaintiff’s husband she was accorded by the terms of the agreement every right usually accorded to partners, except the active management of the business. Even in regard to what should become of the good will and firm name in the event of a dissolution between the plaintiff and the defendant, which was contemplated, provision was made for its reverting to tlie plaintiff, and it was only in tlie event of tlie death of plaintiff and her husband that it became the property of the defendant.

It is unnecessary for us to determine what might be the relation of these parties as to creditors. Cases occur where persons, who, as between themselves, are not partners, have been held as to creditors to be partners. The reverse of this proposition seems to me to be one lilcely to occur, that a partnership relation will exist between persons, one of whom it might be difficult to hold to the liability of a partner so far as the creditors might be concerned. Of this latter kind the present case, I think, furnishes a good illustration. The fact that the plaintiff is to have the right to examine the books, and is given other rights accorded to partners expressly by the terms of the agreement, should not, it seems to me, be urged as a reason or argument for showing that she had not the rights of a partner. I am inclined to the view that the agreement between plaintiff’s husband and defendant contemplated, upon the death of the former, a partnership between his widow, who is the plaintiff here, and the defendant, who thus became the surviving partner under an arrangement, the effect of which was to transfer all the assets of the old firm to a copartnership thus to be formed, in which each of the parties had definite and fixed rights, and in which the active management and control was given to defendant.

To sustain, however, the ordér appealed from it is unnecessary for us to go to the extent of holding that the plaintiff was a copartner; for, considering her position as executrix, which gave her, as against the surviving partner, a right to an accounting and her own right to share in the profits of the business, accorded under the agreement of partnership between the defendant and plaintiff’s husband, and considering the charges made against the defendant of wrong-doing, which were not fully met, it was not error to appoint a receiver.

The relation between the plaintiff and defendant constituted, to say the least, a quasi partnership, and the refusal of the defendant, in violation of the agreement, to permit her to inspect the books of the business, and the excuses given for the non-production of the books and vouchers, and the other charges made showing a repudiation on the part of the defendant of all rights of the plaintiff in the business, presenting an honest difference of opinion, not only as to tlie administration of the assets which belong equally to both, and of which, so far as the good will and firm name was concerned, belonged entirely to the plaintiff during her life; these justified, in the presence of the quarrel between the parties, the appointment of a disinterested person as a receiver to the end that the property might be preserved during the litigation, and as the result of an accounting distributed as justice might require.

I am, therefore, of the opinion that the order appealed from should be affirmed, with costs and disbursements.

Order reversed, with ten dollars costs and disbursements to the defendant to abide the final event.


author: Patterson, J.: Yan' Brunt, P. J.: O’Brien, J.:

text:
    AUGUSTUS F. HOLLY, as Executor of NATHANIEL THURSTON, Deceased, Appellant, v. KAUFMAN HIRSCH, Respondent.

      Specific performance — when there is a debatable question of title — the purchaser is ■not obliged to accept the title.

    In an action brought to compel the specific performance of a contract for the sale of land, it appeared that Martin W. Brett contracted with John M. Pinkney to sell him the premises in question; that Pinkney paid a part of the purchase-money, but before the time of performance Brett died, leaving a will by which he gave his executors a power of sale, disposed of four-sevenths of his estate absolutely, and directed the remaining tliree-sevenths to be held in trust for certain beneficiaries named therein.
    Pinkney subsequently paid or secured the balance of the purchase-money, and Brett’s executor then conveyed the premises to him by the usual executor’s deed.
    A purchaser from one claiming under Pinkney objected to the title upon the ground that Brett’s executor had no power to convey, and that the fee was in the devisees ; and that under section 45 of page 64, and section 169 of page 194 of volume 2 of the Revised Statutes, the devisees should have conveyed to Pinkney.

      Reid, that the question was debatable, the .title not merchantable, and that specific performance should be denied.
    Appeal by tlie jfiaintiff Augustus F. Holly, as executor of Nathaniel Thurston, deceased, from a judgment of the Supreme Court, entered, after a trial by the court at the New York Special Term, in tbe office of tbe clerk of tbe city and county of New York on the 18tli day of December, 1891, denying specific performance of a contract for tlie sale of lauds, and directing tliat tbe defendant recover tbe amount paid tliereon, with interest, the expenses of examining the title, and costs.

      jS. P. Nash, for the appellant.

      Bamuel Hiker, for the respondent.
   Patterson, J.:

This action was brought for the specific performance 'of a contract for the sale of land situated in the city of New York; and the defense set up is that the defendant could not get a merchantable title such as he should be required to take from the party plaintiff.

The facts lying at the foundation of the case appear to be the following, viz.: Mr. Holley, as executor, etc., of Nathaniel Thurs-ton, under the terms of a power of sale contained in Mr. Thurston’s will, sold the land in question, at auction, to the defendant in the year 1890. Mr. Hirsch refused to complete the purchase. The specific objection he urged was that the donor of the power of sale never had the legal title of the premises, and, consequently, could not give a sufficient conveyance thereof. That objection arose out of the following circumstances In the year 1879 one Martin W. Brett was the owner, in fee simple absolute, of the land in question. On November 6, 1879, he contracted to sell that, with other lands, for a stipxilated price to one John M. Pinkney, and the day fixed for the consummation of the contract, by the delivery of the deed and the payment of the balance of the purchase-money, was the 6th day of December, 1879. Pinkney had paid, at the time of the execution of the contract of sale, $1,000 on account of the purchase-price. Mr. Brett died November 22, 1879. He left a will, which was duly admitted to probate, and in and by such will he gave his executors a power to sell his real and personal estate at public or private sale, and at such times and on such terms and conditions as they should deem most for the benefit of his estate. As appears by the fifth finding of fact, Mr. Pinkney, after the death of Brett, paid or secured, in pursuance of the terms of the contract of sale, and to his, Brett’s, executors, the balance of the unpaid purchase-money of the said.land, amounting to about forty-nine thousand dollars, and such executors executed and delivered to him a deed in the usual form of executor’s deeds for such premises. Mr. Brett left several children and grandchildren who were his devisees under the will. To some of his children proportionate estates in fee were given in his real estate; and as to others and several of his grandchildren trusts were created in what may be called their shares. Mr. Pinkney, after taking the executor’s deed, conveyed the land to one Dempsey, and Dempsey was the immediate grantor of Thurston, the plaintiff’s testator. At the death of Mr. Brett the situation of the parties to the transaction was this: Brett had been the trustee of the title for the purchaser Pinkney, and the latter could have had, but for Mr. Brett’s death, a decree for specific performance on tender of the balance of the purchase-money. It was a partly executed contract. Under such circumstances the title to the land passed to the devisees of Brett, but subject to the right of the purchaser to demand a conveyance from such devisees on full performance of his part of the contract. This resulted from the provisions of section 45 (2 R. S., 64) of the statute of wills, which enacts that a bond, agreement or covenant, made by a testator for a valuable consideration to convey any property devised or bequeathed in any will previously made, shall not be deemed a revocation of such provision, devise or bequest either at law or in equity; but such property shall pass by the devise or bequest subject to the same remedies on such bond, agreement or covenant for specific performance or otherwise against the devisees or legatees as might be had at law against the heirs of the testator or his next of kin, if the same had descended to them. That is merely to say, that notwithstanding the trust for the benefit of the purchaser the title went to the devisees, subject to the right of Pinkney to claim specific performance, and the statute points out the pi’ecise way in which that may be required. Section 169 of the statute (2 R. S., 194) enacts that the Court of Chancery shall have power to decree and compel a specific performance by an infant heir or other person of any bargain, contract or agreement made by any party who may die before the performance thereof by any person interested in such bargain, contract and agreement, and on being satisfied that specific performance of such contract or agreement ought to be decreed or compelled. The deed was taken by Pinkney from the executors under their power of sale, and evidently in the belief that a complete title to both the legal and equitable estates could be conferred by the execution of such a power. And the precise point now involved is, whether or not the executors had capacity, as the property was situated at the time of the execution of the deed to Pinkney, to make a conveyance under that power.

The point is made by the defendant in this action that the proper legal title could only be given by the devisees, and that the executors could not execute the power of sale as to this land for the reason that it was taken out of the testator’s estate by the contract of sale, and that a good and sufficient deed to confer a valid record title, to which the defendant here would certainly be entitled, could only be given by the devisees under the will of Mr. Brett, and in accord, anee with the terms of the statute referred to.

"We think the concrete question arising in this case is to be disposed of by authority. We are not to decide it upon an equitable construction of the power given to the executors of Brett’s will, to sell land for any purpose which might seem to them beneficial to the estate. If we were able to treat it as an original question, and to determine it according to the equities, we might be able to hold that when the executors made their deed and received the.$49,000 balance of the purchase-money, they entered into a new contract and sold the land and received the purchase-money within the purposes of the power granted for the benefit of the testator’s estate.

But we think that the whole subject has been disposed of by adjudications of courts which seem to us to be absolutely binding; and we do not regard what has been decided in those cases as being-mere dieta ; for it is evident that the learned judges, by whom the cases to be adverted to were decided, had in mind the precise point which is raised in this case, and that the adjudications made, which we conceive to be binding upon us, were so made after full advisement and thorough consideration of what was involved in them.

The power of sale contained in Mr. Brett’s will seems to have been quite like that considered by the court in Lewis v. Smith (9 N. Y., 502), and it was there held, that a power of sale contained in a will authorizing executors to sell all the testator’s fast estate,” by which is meant, of course, landed property, did not embrace lands which had been sold by contract by the testator in bis lifetime ; the purchase-money being unpaid and the title still remaining in him at the time of his death. Or, in other words, it was held that, under such circumstances, the power of sale could not be used by the executors, that as the interest which remained in the vendor was simply a right to the money due on the contract, it was not real, but only personal, estate, and that, therefore, the power •of sale would be inapplicable.

But the question came up distinctly in the case of Roome v. Philips (27 N. Y., 357), and we are of opinion that that case is of controlling authority. We do not see that the observations of the court are to be regarded merely as dicta on the point now presented. That was an action for specific performance. It is true that the main question involved was as to the power of an administrator with the will annexed to execute a power of sale of land. But, as the case came before the court, the whole subject was considered, and one of the grounds upon which the decision was placed was distinctly that the power of sale conferred upon the executor by the will bad become inapplicable to the land there involved, by the sale of that land made by the testator in his lifetime.

The power of sale there under consideration was, in its' terms, quite similar to that conferred by Mr. Brett on bis executor, to wit, to .sell and convey all the testator’s real estate, either at public or private sale, upon such terms as be may think proper and most beneficial to bis estate. It was there considered that the manner of sale and the terms, bad been conclusively determined by the testator before the will took effect by bis death; that a sale bad actually been made, and that the power did not look to the conveyance of the naked title to lands, of the beneficial interest in which the testator bad divested himself in bis lifetime. And the whole argument was summed up in the following words: That.the power could not apply because, simply, the duty which the executor was appointed to perform respecting this land could not be performed by him, because, at the death of the testator, there was no such land to be sold.” And this was decided in view of and by reference to section 45 of the statute above alluded to.

This enunciation of the law was concurred in by all the judges, and was stated by Judge Denio as one of the controlling reasons for the decision of that case, and did not arise as a collateral matter, but, as we think, was intended to be a decision of the court upon that subject.

We have not overlooked the cases cited by the learned counsel for the appellant with reference to the construction to be given to powers of this kind. There is a strong disposition of the courts to construe them equitably in certain particular cases; and the case of the Mutual Life Insurance Company of New York v. Woods (121 N. Y., 302), is an instance of that disposition. That was a case of an action for specific performance of a contract for the purchase of land, and the effect of a power of sale was involved. The plaintiff claimed under a. deed on a foreclosure of a mortgage executed by a former owner of the property, and under a deed' executed by the executors of the will of that former owner. This conveyance, evidently, was intended to cut off remaining interests in land which might not have been affected by the foreclosure. The court did hold it to be sufficient to give the plaintiff a valid title, such as the defendant was bound to accept, but in that case the precise question which is now before us was not raised; nor is any reference made in the opinion of the court to the Roome case, which seems to lay down the positive rule.

The case of Biden v. James (3 N. Y. St. Rep., 734), is cited as an authority sustaining the position of the plaintiff. But that does, not meet the precise question raised here, and we do not think it is applicable.

Without expressing any opinion as to what might be our views upon the subject now before us, if it came up 'as an original question, we conceive ourselves to be concluded by the authority of the cases in the Court of Appeals referred to, and, therefore, the judgment of the court below must be affirmed, with costs.

Yan' Brunt, P. J.:

I am of the opinion that, even upon the plaintiff’s own showing,, the question involved is a debatable one, and, therefore, the title is not free from reasonable doubt, and such as a purchaser should be required to take.

O’Brien, J.:

If appellant’s view of the law should finally be held to be the correct one, two reasons suggest themselves why the purchaser should not be compelled to take title. The first is that the question is not at present free from reasonable doubt, and the second is that if now resolved in appellant’s favor it would not be a binding adjudication on the devisees, who are not before the court and whose rights are involved. I, therefore, concur in the result.

Judgment affirmed, with costs.