author: Follett, J.:

text:
    Frances Naylor Henck, Respondent, v. William Barnes, Jr., Appellant, Impleaded with Others.

      Judgment — conclusive as to the law as well as facts — employment of an attorney by one partner — lease — agreement by the lessor to obtain sub-tenants for part of the demised premises — subsequent purchaser not bound by it.

    The judgment in an action in which questions of law alone are involved is as conclusive between the parties as the judgment in an action in which are involved issues of fact as well as of law.
    One partner has power to employ an attorney to defend actions against the firm, and an answer served in behalf of the firm pursuant to such employment is binding upon all the members thereof.
    In an action begun in the City Court of the city of New York to recover the rent due on August 1 and September 1, 1893, under a lease of certain real property, it appeared that the defendants, a firm, on August 36, 1893, leased a building in the city of New York for a term of years from the plaintiff’s grantor, agreeing to pay an annual rent in equal monthly installments; that on the day of the execution of the lease plaintiff’s grantor wrote a letter to the defendants wherein he agreed to find good tenants for all floors, except the two at the top of the building (the topmost floor of which the defendants proposed to occupy), at rents which were specified in the letter; that the plaintiff’s grantor also agreed that if the building should not be fully rented he would allow any difference in the total rent to bo paid by the terms of the lease until all of the building should be rented, and that the lessor subsequently conveyed the premises to the plaintiff and assigned the lease to the defendants to her. The defendant Barnes was not served with process in that action, but a verified answer was served on behalf of all the defendants, setting up as a defense that the plaintiff’s grantor had failed to perform his promise in regard to finding tenants for the whole building, except the two top floors, to their damage.
    On the trial of the action the defendants did not show, or offer to show, that when the plaintiff purchased the premises she had notice of the written agreement entered into by her grantor at the time of the execution of the lease, and it was held that said agreement to furnish tenants did not run with the land and did not bind the purchaser, and judgment was entered in favor of the plaintiff.
    In an action brought to recover rent due under said lease, which had accrued subsequently to the judgment rendered by the City Court, the same defense was interposed on behalf of the defendant Barnes.

      Held, that the judgment of the City Court was a bar to the defense sought to be interposed in this action; that it was immaterial whether the appellant Barnes was or was not personally served with process in the action brought in the City Court, his partners having been personally served and having interposed a verified answer on behalf of the firm;
    That the agreement to furnish tenants did not run with the land and did not bind the plaintiff, who purchased without notice of its existence.

      Appeal by tbe defendant, William Barnes, Jr., from a judgment of tlie Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day of October, 1894, upon the decision of the court rendered after a trial at the New York Circuit before the court without a jury.

      Henry G. Atwater and <7. E. Ooddington, for the appellant.

      Edward 8. Glinch, for the respondent.
   Follett, J.:

This action was brought to recover rent due on a lease, all the defendants being personally served. Barnes and Bichards answered separately, but Davison made default.

August 26, 1892, the defendants leased from James Adair, by a written contract, Nos. 10 and 12 Yandewater street, in the city of New York, for five years and eight months from September 1,1892, agreeing to pay an annual rent of $8,000, in monthly payments of $666.66, in advance, on the first dáy of every month. It is recited in the lease that the lessees were doing business in New York city under the name of Godey Publishing Company. When the lease was entered into the lessor wrote and delivered the following communication to the lessees:

“New York, August 26, 1892.
“ Godey Publishing Co.,
“ 21 Park Bow, New York City.
“ Gentlemen. — -Beferring to the premises Nos. 10 and 12 Yandewater street, which you have rented for $8,000 per annum for five years and eight months from September first, 1892,
“ I will agree to find good tenants for all floors except the two at top of building. The topmost loft you propose occupying; for the loft next to the top I will provide a good tenant on a one-year lease dating from May first, 1893, at an annual rental of not less than $1,200. All said leases to sub-tenants to be made in your name and . in terms suitable to your interests.
“ I will secure for the remaining five floors and basement the following price on five-years’ leases: $1,000 per annum for each of the ■three lofts directly under the two top lofts; $900 each for the ground floor and loft next above it, and from $600 to $800 for the basement, or a total rent averaging as above.
“ The tenants to be of good commercial standing and not engaged in business that would be detrimental to you. The building to be named after the style of your corporation.
“ I will also agree that you shall not be called on to pay any rent until December first, 1892 (for the month of December), and the incoming sub-tenants are to have the same privilege if necessary.
“ I will also agree that on December first, 1892, if the building is not fully rented'according to the within terms, including the top floor, which you will occupy at the rate of $1,000 per annum, to allow you for any difference in your total'rent until all is rented.
I will also place a wire guard around the elevator car to make it suitable to carry both passengers and freight.
“ Tours truly, JAMES ADAIR.”

The lessees entered into possession of the demised premises and continued therein as partners until September 17, 1892, when the firm was dissolved and the members were incorporated under the laws of the State of New Jersey, under the name of Godey Publishing Company, since which the corporation has continued in possession of the premises. In November, 1892, the lessor conveyed the premises and assigned the lease to this plaintiff. In September,, 1893, this plaintiff began an action in the City Court against all of the defendants to recover $1,333.32 rent due August 1 and September 1, 1893. The defendant Barnes was not served with process in in that action, but on the 2d of October, 1893, an answer was served in behalf of all of the defendants, which was duly verified by Paul M. Richards. In this answer the defendants admitted the execution of the lease; that they had been engaged in business as partners under the name of Godey Publishing Company, and alleged, as. a defense, that Adair, the plaintiff’s predecessor in title, had failed to perform the promises contained in the communication of August. 26, 1892, to their-damage in the sum of $656.65. On the trial of the action the defendants did not show, or "offer to show, that the plaintiff when she purchased had notice of the communication of August 26,1892, and it was held that the collateral personal contract of Adair did not run with the land and bind the subsequent purchaser, and a judgment was ordered for the plaintiff which has not been reversed.

The present action was brought to recover $2,666.66, rent from January 1, 1894, to April 1, 1894, inclusive. As a defense, and by way. of counterclaim, the defendants set up the agreement of August 26, 1892, and alleged that Adair had failed to perform it to the defendants’ damage in the sum of $20,000, and also alleged that the plaintiff had full knowledge of the agreement before the lease was assigned to her. On the trial the defendants did not show, or offer to show, that the plaintiff had knowledge of the existence of the agreement of August 26, 1892, when she purchased the premises and took the assignment of the lease. The agreement of Adair and all of the facts which the defendants offered to prove on the trial of this action, were before the City Court in the action there tried, where it was held that the facts proved and offered to be proved constituted no defense to the action. The judgment Of the City Court has the same effect as though the defendants had pleaded all of the facts in their answer by way of defense or counterclaim, and upon the plaintiff’s demurrer it had been held that the facts pleaded were insufficient to constitute a defense and a judgment had been rendered for the plaintiff.

A judgment in an action in which questions of law are alone ■ involved is as conclusive between the parties as a judgment in an action involving issues of fact as well as of law. (Bouchaud v. Dias, 3 Den. 238; Gould v. Evansville, etc., R. R. Co., 91 U. S. 526 ; Vanlandingham v. Ryan, 17 Ill. 25; Ereem. on Judg. [4th ed.] § 267.)

The judgment of the City Court is a bar to the defense sought to be interposed in this action. The defendant Barnes sought to obviate the effect of this judgment by offering to show that he was not personally served with process in the City Court, but he did not offer to prove that his two partners were not served, nor that Richards did not serve a verified answer in behalf of all the defendants. One partner has power to employ an attorney to defend actions brought against the firm, and an answer served in their behalf is binding upon all the firm.

Apart from the question of estoppel we think the facts the defendants offered to prove did not constitute a defense. The agreement of Adair was a mere collateral personal undertaking which did not run with the land or bind the subsequent grantee, the plaintiff, who purchased without notice. (Tallman v. Coffin, 4 N. Y. 465; Taylor L. & T. § 444; 2 Platt on Leases, 413.)

The judgment should be affirmed, with costs.

Van Brunt, P. J., and Parker, L, concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Pee Curiam :

license: Public Domain

text:
    Josephine Antoinette Cambreleng, Respondent, v. Ella Ward Graham and Grace Graham Cambreleng, Appellants, Impleaded with Others.

      Voluntary payment of a mortgage by one tenant in common — his grantee cannot demand contribution from, the co-tenants.

    The owner of a life estate in the whole, and a fee in an undivided half, of certain real estate upon which there was a mortgage, voluntarily, without any misunderstanding or mistake of fact and with actual knowledge of the legal effect of his act, paid the mortgage upon said premises and obtained from the mortgagor a satisfaction thereof.

      Held, that the grantee of such person was not entitled to demand from the other owners of such real property payment by them of their proportion of the amount paid by her grantor to obtain a satisfaction of said mortgage.
    Appeal by the defendant Ella Ward Graham from so much of an interlocutory judgment in partition of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 31st day of May, 1894, upon the report of a referee, as finds that the plaintiff is entitled to one undivided fourth part of the premises described in the complaint, in fee, subject to the right of curtesy initiate of her husband, the defendant Nicholas Cambreleng, without also finding that the defendant Ella Ward Graham is entitled to be subrogated to the i-ight of Robert McC. Graham to contribution from the share therein of said plaintiff, and before any part of such proceeds is distributed to her, of the one-fourth part of the sum of $12,500, paid by the said Robert McC. Graham for the assignment to him of a mortgage for $12,500, with interest on the said last-mentioned sum from the date of the death of the said Robert McC. Graham, and that said amount .should he paid to the said Ella Ward Graham; and also from so much of the said judgment as finds that the defendant Douglas Graham is. entitled to one undivided fourth part thereof, without also finding that the said Ella Ward Graham is in like manner entitled to be subrogated as aforesaid, and to receive out of the share of the said Douglas Graham another one undivided fourth part of said sum last above mentioned, and from such part thereof as finds that the defendant Ella Ward Graham is entitled to one-half part of the premises in fee without also finding that she is entitled to he subrogated to the said right of said Robert McC. Graham, to contribution from the shares therein of the plaintiff and the defendant Douglas Graham, and before any part of such proceeds is distributed to them, each to the extent of one-fourth part of the sum of $12,500, paid as aforesaid by the said Robert McC. Graham, for the assignment to him of the -mortgage for $12,500, with interest on said last-mentioned sum from the date of the death of the said Robert McC. Graham, which sums so contributed are to be paid to the said Ella Ward Graham.
    Also an appeal by the defendant Grace Graham Cambreleng from so much of an interlocutory judgment in partition of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 31st day of May, 1894, -upon the report of a referee, as orders, adjudges and decrees that the defendant Ella Ward Graham is entitled to one undivided half part in fee of the premises in cp¡estion.

      F. F. Coudert, Jr., for the appellant Ella Ward Graham.

      F. Luther Hamilton, for the appellant Grace Graham Cambreleng.

      Henry L. 8jgrague, for the respondent, Josephine Antoinette Cambreleng.
   Pee Curiam :

Cornelia Flora Graham died August IT, 1885, seized of the premises in question, which were subject to a mortgage of $12,500, whereupon Robert McC. Graham, her husband, acquired an estate of tenancy by the curtesy therein, and in addition, under the will of Cornelia Flora Graham, he became seized of an undivided one-fourth of said premises, and her children, Josephine, Grace and Douglas, each became seized of an undivided one-fourtli thereof.

April 17, 1887, Grace Graham, for a nominal consideration, conveyed her interest to her father, Robert McC. Graham, and a few months later, but before attaining their majority, Josephine and Douglas united in a conveyance of all their right, title and interest in such premises to their father. Before the execution of such conveyance, and on the 3d of August, 1887, Robert McC. Graham intermarried with Ella Ward. July 9,1888, Robert McC. Graham, for a nominal consideration, conveyed to his wife, Ella Ward Graham, all his right, title and interest in and to such promises.

On the same day, having previously taken an assignment, he executed, and caused to be duly recorded, a satisfaction piece, of the mortgage of $12,500, which was an incumbrance upon the property at the time of the death of his first wife. Subsequently, and in December, 1890, Robert McC. Graham died intestate. When Josephine reached her majority, for the purpose of making void and disavowing the deed executed by her jointly with her brother, Douglas, she conveyed her right, title and interest in the premises to Henry L. Sprague, in which it was recited that such was the object of - its execution and delivery. Thereafter Sprague conveyed such undivided interest to her. Later on Douglas Graham, becoming of age, also took the necessary steps to disavow the deed made by him during his minority. Josephine thereupon commenced this suit in partition, which has resulted in a judgment that the property be sold, and adjudging the interests of the several parties therein to be as follows:

“ The plaintiff is entitled to one undivided fourth part thereof in fee, subject to the right of curtesy initiate of her husband, the defendant Nicholas Cambreleng.
“The defendant Ella Ward Graham is entitled to one undivided half part thereof in fee.
“The defendant Douglas Graham is entitled to one undivided fourth part thereof in fee.”

With so much of the decision as determines that the plaintiff Josephine and the defendant Douglas had a right to disaffirm the deed which they executed as minors, the appellant Ella Ward Graham makes no complaint, but she insists that her husband never intended* that Josephine and Douglas, his children and co-tenants, should have the benefit of any portion of the $12,500 mortgage, which he paid off, and she urges that she is entitled to bo subrogated to all his rights in such respect.

The referee reached the conclusion that a case was not made out for the equitable relief asked for by the defendant Ella Ward Graham, because the satisfaction of the mortgage by Robert McC. Graham was a voluntary act, made without any misunderstanding or mistake of fact, and with actual knowledge of the legal effect of such act. As we have reached the conclusion that his position in such respect was well grounded, it will be unnecessary to discuss the equitable principles invoked by the appellant. The facts which induce our concurrence in the position taken by the referee may be briefly stated as follows: At the death of Cornelia Flora Graham the $12,500 mortgage was held by Louisa A. Steinway, and in May following the full amount due on the mortgage was satisfied of record. This was claimed to have been done under a mistake, and thus Mr. Graham was led to consult his counsel, who advised him of the rights which the after-born children of his first wife had in the premises, and the effect which might follow a satisfaction of the mortgage. He was further informed, while he would have the right of subrogation against the children, the better course would be to take an assignment of the mortgage. The advice of his counsel was followed, an assignment of the mortgage obtained and a memorandum made upon the margin of record of the mortgage referring to the assignment.

From that time until the mortgage was satisfied of record by him, more than two years later, it was held open and retained in his possession. It cannot even be said that owing to the lapse of time he had forgotten the advice of his counsel which led him to correct the original mistake for the purpose of protecting himself as against his children, for his attention was sharply called to it by the letters of his counsel, written shortly before the mortgage was satisfied, which letters were written in the course of preparation and execution of the deed by which the property was conveyed to his wife.

In the first letter his counsel, among other things, say: “We had advised in other cases, and think it quite as well in your case, to take a quit-claim from the two minor children also, as they are of' sufficient years to fully understand what they are signing, and would consider themselves when of full age morally bound to ratify and confirm.”

The second letter reads as follows:

“We enclose jnoposed deed to Mrs. Graham, which you can execute. It says subject to existing encumbi’ances. . The mortgage that, you hold is outstanding, as you remember, and may or may not merge, according to your intentions. The proposed will of Mrs. Graham is prepared and ready for you to examine. You are doubtless aware that marriage and birth of a child will revoke your own will, if made before marriage.
“ Respectfully,
' “ COTTDERT BROTHERS.
“ (Enclosure.) ”

Andón the margin: “ You can execute deed and satisfy mortgageafterwards if you wish.”

The further fact is established that he well knew that his minor-children would have the right to disavow the deed executed by them when they should reach majority.

In the first place he was so advised in the first letter, from which we have quoted, in which it was suggested that a deed be taken from the minors, because they would consider themselves morally bound to ratify and confirm it. when they should become of age.. Elis knowledge of the rights of the minors is further evidenced by the testimony of his wife and grantee, Ella Ward Graham, who testified that “ He said as they were minors there would be a question to be decided by law as to their signature,- if they wan ted to disavow it later, if anything happened to him.” In the light of these-facts, and without a suggestion in the record that lie was deceived or mistaken, there is no basis for a different conclusion than that, reached by the referee.

The appeal of Grace Graham Oambreleng complains of so much of the judgment as adjudges that the defendant Ella Ward Graham" owns one-half of the premises, her claim being that she should have been adjudged to be the owner of an undivided one-fourtli interest therein. That she was of full age when she executed the-deed which she sought to have set aside in this suit is conceded. The ground upon which she sought to attack the validity of the deed was that it was procured from her by her father by means of misrepresentations and undue influence.

The referee decided that her contention was not supported by the evidence, and in that view we concur.

The judgment should be affirmed, with costs, payable out of the proceeds of the sale of the property.

Present — Yan Brunt, P. J., Follett and Parker, JJ.

Judgment affirmed, with costs to special guardians payable out of proceeds of sale of the property.


author: Parker, J.:

text:
    Newton E. Whiteside and Others, Appellants, v. Noyac Cottage Association, Respondent.

      Injunction pendente lite — reference to assess damages, denied unless damage be shown — what counsel fees do not constitute doomages.

    Where, in an action in which an injunction pendente lite has been issued on behalf of the plaintiff, the complaint is dismissed and the defendant has sustained no damage whatever because of the granting of the injunction, he is not. entitled to have a referee appointed to report that fact at the expense of the surety upon the undertaking given by the plaintiff upon obtaining the injunction.
    A surety upon an undertaking given to procure an injunction is not liable for anything but damages resulting from the granting thereof, and counsel fees paid by the defendant for opposing the application for an injunction pendente lite do not constitute damages occasioned to him by the injunction granted.

      Semble, that counsel fees incurred upon the trial of the issues in such action are not allowable upon an assessment of damages against the surety, unless they were incurred solely or principally in consequence of the injunction.
    Appeal by tbe plaintiffs and by John Parr, the surety on the undertaking for the injunction granted herein, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on December 24, 1894, in so far as sncli order confirms, as modified, the report of ■ the referee, to whom it was referred to ascertain the damages sustained by reason of an injunction granted in this action, and overrules the exceptions of the appellants to the said referee’s report.

      Alfred JB. GruilcsJumlc, for the appellants.

      William 0. lieddy, for the respondent.
   Parker, J.:

The plaintiffs, who were lot-owning members of the defendant, the Noyac Cottage Association, feeling aggrieved because of an assessment made upon the lots purchased by them of the association, to defray certain expenses incurred in the erection of a club house, bowling alley and billiard annex, and in the purchase of horses and carriages, commenced a suit, the complaint in which concluded with a prayer for relief as follows: “ Wherefore, the plaintiffs pray for the equitable interference of this court, and for judgment directing said defendant, through its board of managers, to rescind its action declaring that the rights, titles and interests of said plaintiffs shall cease and revert to said defendant on December 28th, 1891, unless plaintiffs show cause to the contrary, and directing that said assessment, so far as the same was voted and levied to pay for the permanent improvements aforesaid, shall be null and void, and forbidding said defendant and its said board of managers from taking any action at said meeting on December 28th, 1891, or at any other meeting, to cause the rights, titles and interests of said plaintiffs to cease and determine, or to revert to said association defendant, together with the costs of this action.

“ And the plaintiffs further pray that such other or further relief as to the court shall seem just.”

Thereafter, upon notice of motion regularly given, and upon a full hearing, an in junction pendente lite was granted, the plaintiffs giving an undertaking in the penal sum of $2,000, with John Parr as surety, conditioned for the payment of “ such damages, not exceeding the before-mentioned sum, as it may sustain by reason of the injunction if the court finally decides that the plaintiffs were not entitled thereto.”

No further or other action was taken in respect to the injunction until the trial of the suit, which resulted in a judgment dismissing the complaint. From this judgment successive appeals were taken to the General Term and the Court of Appeals, resulting in its affirmance. The plaintiffs promptly paid the costs awarded against them by the judgments of the several courts, after which an order of reference was made to assess the damages incurred by the defendant by reason of the granting of the injunction.

The referee reported that the defendant was entitled to recover of the plaintiffs and the surety on the undertaking :

“ 1st. Its expense for counsel fee, exclusive of taxable costs incurred in consequence of said injunction to and including the trial at September term.. $350 00
“2d. For appeal to the General Term............... 75 00
“3d. For appeal to the Court of Appeals............ 75 00
“4th. For counsel fees on this reference.............. 150 00
“ 5th. For referee’s fees on this reference............. 102 00
“ 6th. For stenographer’s fees....................... 46 15
“ Flaking a total of...........................$798 15 ”

It will be observed that the referee does not find that the defendant sustained any damage whatever, by reason of the granting of the injunction other than for counsel fees paid in addition to taxable costs.

The Special Term disallowed the items for counsel fees for the General Term and Court of Appeals, and confirmed the report in other respects.

From the order of the Special Term the plaintiffs and the surety appeal, and it is insisted on their behalf that they were not chargeable in law with the counsel fees paid by the defendant, nor with any part thereof, and as it was not found that the defendant sustained other damages by reason of the granting of the injunction the defendant could not saddle them with the expense of a reference.

If the first proposition be true the last follows, for if a defendant sustains no damage whatever, because of the granting of an injunction, he is not entitled to have a referee appointed to report that fact at the expense of the surety. (Sweet v. Mowry, 71 Hun, 381-386; Randall v. Carpenter, 88 N. Y. 293-296.)

The inquiry then is, whether the award of $350 for counsel fees was authorized. No motion was ever made to vacate the injunction. It was granted, as we have already said, upon notice, and the counsel fees paid by the defendant for opposing the application for the injunction do not constitute damages occasioned to him by the injunction granted. And it is for damages resulting to him because of the granting of the injunction that the surety agrees to respond.

Efforts have been made in the past to charge sureties similarly situated with the sums paid to counsel for opposing the granting of an injunction, against the harmful effects of which, when granted, the sureties have undertaken to indemnify a defendant, but uniformly such efforts have been unsuccessful. (Sweet v. Mowry, supra; Randall v. Carpenter, supra; Allen v. Brown, 5 Lans. 511; Troxell v. Haynes, 16 Abb. Pr. [N. S.] 1.)

-The award of $350, according to the finding of the referee, was for counsel fees, exclusive of taxable costs, incurred in consequence of said injunction to and including the trial. After the injunction was granted no motion was made or other proceeding had in the action prior to the trial which resulted in a judgment for the defendant. And the compensation allowed by the referee was necessarily for the trial and the preparation therefor.

This is sought to be justified on the ground that the defendant was forced to prepare for and try the cause in order to get rid of the injunction. But this claim does not state the true situation, for while it is doubtless true that defendant could not have procured a vacation of the injunction without a trial, it was obliged to prepare for and try the cause in any event.

The ground of action stated in the complaint was the making of certain alleged illegal assessments. The object of the suit was to get rid of them by a judicial determination that they were ultra vires, and the injunction pendente lite against their enforcement was merely collateral.

The suit could, and doubtless would, have proceeded to trial had the application for injunction been denied. Indeed, the plaintiffs appealed to the General Term, and again to the Court of Appeals, after the injunction had fallen because of the judgment dismissing the complaint.

It is clear, therefore, that the counsel fees paid by the defendant were necessitated, not by the injunction, but by the suit which it was compelled to defend.

It seems to be established by the authorities that counsel fees paid under such circumstances cannot be recovered of the surety. (Allen v. Brown, supra ; Troxell v. Haynes, supra; Newton v. Russell, 87 N. Y. 527 ; Randall v. Carpenter, 88 id. 293.)

In Newton v. Russell the complaint alleged a right in the plaintiff to maintain a boom across G. river and attach it to the defendant’s premises, and an interference with such right which it prayed to have enjoined.

Upon notice an injunction was granted pending the action. The trial resulted in a judgment dismissing the complaint. Thereafter ' proceedings were had to assess the damages sustained by the defendant because of the injunction,' and an award was made which included as damages $450, paid for counsel fees in the preparation and trial of the action.

- The award of the referee was sustained by the Special and General Terms, but the Court of Appeals, which liad presented to it . the authorities cited by the respondent here and discussed most of them, held that the award was in such respect erroneous and reversed the order, stating the rule to be that counsel fees incurred on the trial of the issues in an action are not allowable upon an assessment of damages against the surety in an undertaking unless ’ they were incurred solely or principally in consequence of the injunction.

i As the authorities mainly relied upon by this respondent as establishing a different rule were considered by the court, we shall refrain from discussing them. It is sufficient to say that there were exceptional circumstances in each case which led to a different result than in Newton v. Russell, but did not effect a change in the rule many times asserted and merely reiterated in that case.

It follows that the report of the referee, instead of being confirmed in part, should have been set aside. But as there was no evidence presented to the referee tending to show that damages were sustained by the defendant by reason of the injunction, other than that for which the referee erroneously made an award, the right should be reserved to the defendant to make application for the appointment of another referee to assess its damages if it should be so advised.

The order should be reversed, with ten dollars costs and printing disbursements, and the motion to confirm the report of the referee denied, with ten dollars costs, with leave to apply for the appointment of another referee to make an assessment upon payment of costs, etc., upon this appeal and the costs of denial of motion.

Yan Brunt, P. L, and O’Brien, L, concurred.

Order reversed, with ten dollars costs and disbursements, and motion to- confirm report of referee denied, with ten dollars costs, with leave to apply for appointment of another referee to make an assessment upon payment of costs, etc., upon this appeal and the costs of denial of motion.


author: Per Curiam :

text:
    The People of the State of New York v. The Life Union. Harriet A. Pindell and Another, Appellants; Thomas Ashworth and Others, Respondents.

      Motion to direct a receiver to sue — notice to all parties required — liability of a receiver for neglect of duty.

    Au order denying a motion to direct a receiver to sue is proper when notice of the application therefor was not given to all the parties to be proceeded against.
    A receiver, if he is derelict in attending to his duties, is responsible to the parties who have been injured.
    Appeal by Harriet A. Pindell and another from an order of the Supreme Court, made at the New York Special Term and entered .in the office of the clerk of the county of New York on the 14th day of November, 1894, denying the appellants’ motion for an order directing the receiver to commence an action against the directors of the Life Union.

      R. J. Moses, for the appellants.

      E. L. Mooney, for the respondents.
   Per Curiam :

The appeal as to the defendant Law has been withdrawn. Notice of this application does not seem to have been given to any other of the parties to be proceeded against. In addition to this there does not seem to be any reason why this court should direct the receiver as requested. Tbe receiver is supposed to attend to his duties, and if he is derelict therein he is responsible to the parties who have been injured.

The order should be affirmed, with ten dollars costs and printing disbursements.

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

Order affirmed, with ten dollars costs and printing disbursements.


text:
    The Empire Warehouse Company (Limited), Respondent, v. Peter Mallett, as Surviving Partner of the Firm of Peter Mallett & Co., Appellant.

      Attachment — ■ clef ective papers — requirements of the Qocleof Oivil Procedure, § 636 — the disposal of plaintiff’s property converted by the defendant does not justify the attachment.

    The papers upon which an attachment was granted are defective if they fail to show an assignment, disposal or secretion of the property by the defendant with the intent to defraud creditors, as required by section 686 of the Code of Civil .Procedure, and if every allegation contained therein relating to the alleged assignment, disposal or secretion of his property by the defendant with the intent to defraud his creditors is made upon information and belief and the grounds of such information and belief are withheld.
    In order to meet the requirements of section 636 of the Code of Civil Procedure it is not sufficient to' show that the defendant has assigned, disposed of or secreted the plaintiff’s property; the. demands of the statute can only be met by showing that the defendant has made such disposition of his own property with the intent to defraud his creditors.
    Although the cause of action alleged in a complaint be that the defendants, as agents of the plaintiff, received from time to time sums of money belonging to the plaintiff, which they wrongfully converted to their own use, and although by the commencement of such action the plaintiff waived the tort committed by the defendants in such conversion, yet, as the title to the money so collected became vested in the defendants only from the time of the commencement of such action, it cannot be said that the agents, in secreting or disposing of such moneys prior to the commencement of such action, secreted or disposed of their own property in fraud of the plaintiff so as to justify the issuance of a writ of attachment in his behalf.
    Appeal by the defendant, Peter Mallett, as' surviving partner of the firm of Peter Mallett & Oo., from an order- of the Supreme Court, made at tlie New York Special Term and entered 'in the office of the clerk of the county of New York on the 19th day of November, 1891, denying the defendant’s motion to vacate and set aside the attachment issued in this action.

      Charles M. Bemond, for the appellant.

      John V. Bovmier, Jr., for the resjiondent.
   Per Curiam :

The papers on which the attachment was granted are defective, in that they fail to show assignment, disposal or secretion of property hy the defendants with the intent to defraud creditors, as required by section 636 of the Code of Civil Procedure. Every allegation relating to . an alleged assignment, disposal or secretion of their property by the defendants with intent to defraud their creditors is made upon information and belief, and the grounds of such information and belief are withheld.

The cause of action alleged in the complaint is that the defendants, as agents for the plaintiff, received from time to time sums of money belonging to the plaintiff, aggregating $11,018.98, which they wrongfully converted to their own use. If the requirements of section 636 of the Code of Civil Procedure could be satisfied by affidavits to the effect that defendants had assigned, disposed of or secreted such sum with intent to defraud their creditors, the attachment could be upheld. But it does not suffice to show that defendants have assigned, disposed of or secreted plaintiff’s property, for the demands of the statute can only be met by showing that the defendants have made such disposition of them own property with such intent. (German Bank v. Dash, 60 How. Pr. 124.)

The plaintiff ingeniously seeks to meet this difficulty by the following argument: “ That by the action of the plaintiff in waiving the tort committed hy the defendants in the conversion and appro- ' priation to their own use of the funds collected hy them as agents of the plaintiff, the title to the moneys so collected has passed to and been vested in the defendants; and, therefore, in assigning, secreting or disposing of such moneys, they have so disposed of their own property, as to defraud the plaintiff, their creditor; ” and the affidavits being sufficiently full and definite in that respect the requirements of the statute are sufficiently complied with.

First. It has already been decided, otherwise in Oermcm FanJcr. Fash (supra).

Second. At the time the defendants are alleged to have assigned, disposed of or secreted the moneys of the plaintiff the title was not vested in them. The title was then in the plaintiff, and continued to be in it until the commencement of this action, when for the first time the plaintiff waived the tort and sought to recover upon an implied contract.

Plaintiff’s argument, therefore, is defective in that it necessarily assumes that the title to the moneys was in the defendants at the time they are alleged to have assigned or disposed of them; whereas, in fact, the title was in the plaintiff at that time, and so continued until the commencement of this action.

The order should be reversed, with ten dollars costs and printing disbursements, and the motion to vacate the attachment granted, with ten dollars costs.

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

Order reversed, with ten dollars costs and disbursements, and •motion to vacate granted, with ten dollars costs.


text:
    In the Matter of the Judicial Settlement of the Accounts of the Executors of the Estate of William Hutchison, Deceased. Jane Oakes and Another, as Executors, etc., of William Hutchison, Deceased, Appellants; James Austin and Others, Respondents.

      JDuties of a trustee.in the defense of the trust fund and the purpose of its c/reatoi'— authority to incur reasonable expenses for counsel fees.

      A trustee’s duty is not satisfied by merely defending suits which tend to diminish the trust estate. He is bound as well to use due diligence to carry out the intention of the creator of the trust.
    When an assault is made upon the trust instrument by means of a suit in equity, if there be a defense to it, the trustee should make it. If the suit be one for the construction of the instrument the trustee is bound to present to the court the reasons, if any there may be, which call for such a construction of the will ’ as accords with the intention of the trust maker.

      The trustee is burdened with, the responsibility of using reasonable care and diligence to protect and execute in all its integrity the provisions of the instrument creating the trust, and appointing him to attend to its execution, and this duty is none the less obligatory because he happens to be a beneficiary under the instrument of which he is also trustee and may to some extent profit by a successful defense of a suit which assails one or more of its provisions.
    The necessary and reasonable expenses incurred by a trustee in the performance of any duty imposed upon him by law constitute a charge upon the trust estate, and he is entitled to be reimbursed therefrom.
    It is ordinarily the duty of the executors of the will of a decedent to use reasonable diligence to secure such a construction of the will as will be agreeable to the intention of their testator, and they have authority to incur, such expenses, including the payment of counsel fees, as are reasonable and necessary for the due performance of such duty.
    What constitutes reasonable counsel fees is not committed to the discretion of the trustee. The court which passes upon his accounts must determine that question. It will first inquire whether the trustee had the right to incur any expenses, and if that question be decided in the affirmative it will next determine what amount it was reasonable and necessary for him to have expended for the purpose, and if his actual expenditures exceed such sum the excels must be borne by the trustee in person.
    Appeal by Jane Oakes and another, as executors, etc., of William Hutchison, deceased, from a decree of the Surrogate’s Court of the county of New York, entered in the New York Surrogate’s Court on the 13th day of August, 1894, modifying the accounts of the appellants by disallowing certain 'charges and expenses for counsel fees paid by them, and settling and allowing their accounts as modified.

      Ilenry L. Sprague, for executors, appellants.

      Walter S. Logcrn and Charles M. JDemond, for respondent Rosenthal, executor of Charles Austin, deceased.

      George C. Austin, special guardian for respondent Eifel Austin, an infant.
   Parker, J.:

A trustee’s duty is not satisfied by merely defending suits which tend to diminish the trust estate. He is bound as well -to use due diligence to carry out the intention of the creator of the trust, and when an assault is made upon the trust instrument by means of a suit in equity, if there be a defense to it, he should make it. If the suit be one for the construction of the instrument, he is bound to. present to the court the reasons, if any there may be, which call for such a construction of the will as accords with the intention of the trust maker.

’ "W ere the rule otherwise, it might be possible for the beneficiaries of trust estates, in some instances through forms of legal procedure, to obtain possession thereof upon such terms as they should mutually agree upon. And thus would the intention of the creator of the trust be thwarted.

Such a result the law will not tolerate, and to prevent the possibility of its accomplishment, it burdens the trustee with the responsibility 'of using reasonable care and diligence to protect and execute in all its integrity the provisions of the instrument creating the trust, and appointing him to attend to its execution. And this duty is none the less obligatory because he happens to be a beneficiary under the instrument, of which he is also the trustee, and may, to some extent, profit by a successful defense of a suit which assails ■one or more of its provisions.

Tlie necessary and reasonable expense incurred by the trustee, in the performance of any duty imposed upon him by law, constitutes a charge upon the estate, and he is entitled to be reimbursed therefrom.

In Noyes v. Blakeman (3 Sandf. 531) the court said: The object of the plaintiffs in these suits was to charge the debts of the insolvent husband upon the trust estate, in other words, to set aside the trust deed. * * * The defense of these suits was, therefore, a duty which the law imposed upon the trustee, and for all reasonable expenses incurred by him in the discharge of this necessary duty he was entitled to reimburse himself from the funds in hand and from such as he might thereafter receive from the trust estate. The law is most clearly settled, and it would be a reproach to its principles or its administration were it otherwise, that all the necessary expenses of a trustee, that is, all expenses of every kind which are reasonable and in good faith incurred by him for the defense, protection or reparation of the estate, are to be treated in equity as a charge, in all cases, upon the rents and profits, and, when incurred for the benefit of the whole estate, * * * upon the •inheritance and fee. * * *

“ The doctrine in equity is so unquestionable and familiar that it may be regarded as elementary that all the necessary expenses of a trustee are to be reimbursed to him out of the estate, although no provision whatever in relation to such expenses is contained in the deed or other instrument by which,the trust is created. In every such instrument there is an implied direction that all such expenses as the preservation or protection of the estate may require shall be incurred, and an implied stipulation or promise that, when incurred, they shall be a charge upon the estate.”

Irving v. De Kay (9 Paige, 521) and Wetmore v. Parker (52 N. Y. 451) were both actions brought by the executors for a construction of the will, and counsel fees were allowed on the ground that they were necessarily and properly incurred in the faithful performance of the duties of the executors. Other cases might be cited to the same effect, but the rule is deemed too well settled to require further amplification of authority. Wliat constitutes reasonable counsel fees is not committed to the discretion of the trustee. The court which passes upon his accounts must determine that question. First it will inquire whether the trustee had the right to incur any expense, and if that question be decided in the affirmative, it will next determine what amount it was reasonable and necessary for him to have expended for the purpose, and if his actual expenditures exceed such sum, the excess must be borne by the trustee personally.

In this case the learned surrogate has found that the executors have paid out, in various litigations, for counsel fees, the sums of money which they ask to be credited with on this accounting, as executors of the last will and testament of William Hutchison, deceased.

He has also found as a conclusion of law that such fees were not paid for services or work rendered to this estate, but were improper and unnecessary payments, and should be disallowed.” That a part of the sums thus paid out were not properly chargeable against the estate seems to us very clear. The record retainer of some of the counsel was for the beneficiaries under the will, having no official connection with that instrument, and the number of counsel employed would seem to be far beyond the necessities of such a presentation of the trustees’ side of the case as the law enjoins.

Tlieir number suggests instead the practice of personal litigants in a doubtful contest, reaching out for everything which gives .promise of the slightest assistance. But while all the claims of the executors for counsel fees paid should not have been allowed, we think the surrogate was wrong in deciding that the executors of the will of William Hutchison were not entitled to be reimbursed, to any extent whatever, for the expenses incurred by them in certain litigations intended to effect the disposition of the estate. There were, it seems to us, two suits in which the executors were parties in their official capacity which it was their duty to defend. True, the interposition of a defense may have been agreeable to their inclinations, but that fact cannot add to or take from the legal measure of their duty. An investigation of the record, for the purpose of ascertaining whether it was their right and duty to defend in their official capacity the suits brought against them as such, discloses that William Hutchison died in 1875, leaving a will in which ■lie disposed of an estate exceeding $1,000,000, the use of the 'entire estate being given to his wife for life, with power to appoint the same to live children and the issue of a deceased child. By a codicil he subsequently modified the power of appointment, so as to direct that the share of two of the appointees should be held in trust during their lives, the interest to bo applied to their use, and the principal to go their issue, if any, at their respective deaths. The life tenant (testator’s widow) died in 1883, leaving a will in which she disposed of her property, and also attempted to exercise the power of appointment contained in the will of her husband. In what manner she made performance under the power of appointment it will not be useful to state ; it is sufficient to say that it was not at all satisfactory to some of the appointees, and they objected to the probate of her will. Their contest was unsuccessful, although waged until the judgment of the court of last resort was rendered. The surrogate has found that in that contest the executors paid out for counsel fees the sum' of $28,388.47, at the same time holding that no part of that sum was properly chargeable against the estate of William Hutchison. It requires but the mere statement of the facts to make it clear that the surrogate’s decision in such respect was well founded.

The executors were accounting for the manner in which they had discharged their duties under the will of William Hutchison, and, the fact that they also happened to be the executors of the will of Winifred Austin, gave them no right or authority to charge the estate of William Hutchison with the expenses incident to the probate of her will.

While the contest over the probate of the will of Winifred Austin was pending, an action was brought by one of the contestants for the purpose of obtaining a judicial construction of the wills. The complaint, among other things, “ demands judgment that the court shall adjudicate and determine the proper construction and effect of said wills and codicil of William Hutchison, and shall adjudicate and determine the rights of the parties hereto in and to his estate, and the money and property left by him as aforesaid, and shall direct a distribution of the same according to their respective rights. The costs of this action to be paid out of the said estate of William Hutchison.”

The executors of the estate of William Hutchison were parties defendant to that suit in their official capacity, and the reference made to the prayer of the complaint suggests at once that it was not unlikely that they were called upon to advocate such a construction of the instrument as would conform to the intention of their testator.

But there is further and convincing evidence that such was the fact. During the four years that this contest was waged in the several courts, it so happened that of the three decisions made, no two were alike.

The Court of Appeals, speaking through Judge Finch (Austin v. Oakes, 117 N. Y. 588), said:

“ The primary question raised in this case is whether the ydll of the testator gave to his wife a single power of appointment only, oí-, in addition thereto, a second and broader power, although limited in its operation to the shares intended for the son James and the grandson Charles, and to the contingency of the death of either without issue during the lifetime of the widow. Stated in a more convenient form, the inquiry is whether the power of appointment recited in the testator’s codicil is a new and distinct and separate power, adequate to sustain the appointment made, or not so adequate, and merely a reference to the one already given in the will itself. Upon this question the trial court and the General Term have differed with so much of sensible and pertinent reasoning as to malee a final determination not altogétlier easy.”

In view of this determination by the court, it is clear that it cannot be denied that it was the right, and the duty as well, of the executors of the will of William Hutchison to use reasonable diligence to secure such a construction of the will as should be agreeable to the intention of the testator. That being so, they had authority to incur such expenses, including payment of counsel fees, as should be reasonable and necessary in the due performance of ■such duties.

The surrogate denied to them any rights of reimbursement whatever, but if the views we have expressed are correct, it follows that this was error.

Charles Austin, after, the death of Winifred Austin, also commenced a suit, the object of which was to obtain partition of certain premises of which William Hutchison died seized.

The executors of his will as such were made parties defendant, and the same questions arose in the partition suit as were involved in the construction suit which we have considered. And for precisely the same reasons we think that the executors were entitled to be reimbursed for the necessary and reasonable expenses incurred by them in its defense.

So much of the decree of the Surrogate’s Court as denies the right of the executors to any reimbursement whatever for legal expenses and disbursements in the suits of James Austin against Jane Oakes and others, and Charles Austin against Jane Oakes and others, should be reversed and the matter remitted to the Surrogate’s Court for further adjudication.

Yak Brunt, P. J., and Follett, J., concurred.

So ordered.


author: Patterson, J.:

text:
    Safety Electric Construction Company, Appellant, v. Henry Creamer, Respondent.

      Action, enjoining the enfoi’cement of a forfeiture, when maintainable — a complaint ashing for an accounting, which is not necessa/ry, must be dismissed,

    A suit to enjoin, the defendant from the enforcement of a forfeiture or from molesting the plaintiff in its business of manufacturing and selling goods under a license given it by the defendant, after a due and formal tender made and kept good of the amount admitted to be due, is proper, and if the allegations of a complaint so framed are found to be true, relief will be granted. Where, however, the complaint in the action is framed so that if there is no right to an accounting there is no right to any part of the specific relief sought, the complaint must be dismissed, if, by the plaintiff’s own showing, there is nothing to be accounted for.
    Appeal by the plaintiff, the Safety Electric Construction Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 8th day of June, 1893, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the plaintiff’s complaint upon the merits.
    There were two causes with the above title, in only one of which an appeal was taken.

      Gustavus W. Hawson, for the apjiellant:

      John A, Straley, for the respondent.
    Judgment affirmed, with costs, on opinion of Special Term.
    Present — Yan Brunt, P. J., Follett and Parker, JJ.
   The opinion of the Special Term was as follows:

Patterson, J.:

These causes were virtually tried together, it being stipulated that the evidence taken on the hearing should, so far as it was applicable, relate to both.

Action No. 1.

This action was brought in the first instance for an accounting under a contract entered into between the parties, by which, among other things, the plaintiff was to pay the defendant, in addition to fixed guaranteed royalties payable weekly, a certain percentage of profits on articles to be manufactured by it under a license granted by tbe defendant, .a patentee of an important invention used in connection with steam machinery. The contract provided that in default of payment within a certain time after notice, the license should be forfeited. The original complaint alleges distinctly that all guaranteed royalties were paid up to a certain date and that no profits were made; - but that the defendant claimed profits had .accrued ; that an inspection of plaintiff’s book had been offered; that an examination of a long and complicated account would be necessary to ascertain whether any profits had arisen; that the defendant threatened to enforce the forfeiture and the prayer for relief was for accounting, etc. An injunction was not asked for. A supplemental complaint (so called) was served, and therein it was asked, that it be judicially ascertained whether anything is due from the plaintiff to defendant, and, if it be found j;hat there is, that the plaintiff be allowed a reasonable lime within which to pay it, and that upon such payment being made the defenda/nt be forever barred from all right to forfeit said contract and from claiming or attempting to claim a forfeiture thereof for any matter or thing done previous to the beginning of this action,” etc.

To say the least this is a very peculiar suit. Its basis is an asserted right to an accounting under a state of facts, as presented by the plaintiff itself, conclusively showing that no accounting is necessary for any legitimate purpose in enforcing a right inhering in or belonging to it. The complaint sets forth distinctly an offer of payment of guaranteed royalties (this offer not amounting, indeed, to an actual tender), and that it (the plaintiff) “ has made no profit whatever out of said contract, and that it has lost many thousands of dollars thereunder.” The accounts were kept by the plaintiff; the defendant had nothing to do with them. The distinct averment of the complaint is that nothing was owing the defendant except guaranteed royalties from a certain date. Why should the plaintiff have an accounting with the defendant when it owes him nothing, except a certain fixed sum, .and nothing under any possible circumstances, according to its own statement, could be demanded beyond that sum? A suit to enjoin the defendant from enforcing the forfeiture or from molesting the plaintiff in its business of manufacturing and selling goods under the license, and after a due and formal tender made and kept good, of what was admitted to be due, might be proper, and, if the allegations of a complaint so framed were found to be true, the relief should be granted. As originally brought, it must be conceded that this action is not of that character. It was so held by the General Term on the appeal from the order maintaining the temporary injunction. Under prayer for relief in the supplemental complaint the scope of the action is perhaps somewhat enlarged — but whether that be so or not, as this action is framed, if there is no right to an accounting, there is no right to any paid of the specific relief, sought. It could only be appropriate after an accounting as the complaint stands, and, by the plaintiff’s own showing therein, there is nothing to be accounted for.

The complaint, therefore, must be dismissed, with costs.

Action No. 2.

This action is of a very different character from that already considered. By the averments of the complaint it is one properly instituted to obtain injunctive relief against the consequences (or acts of the defendant naturally to be anticipated in consequence) of a threatened forfeiture; and the averments referred to are intended to show that a court of equity should interfere. The case is in no way presented as one of infringement of a patent, but simply as one affecting the right or title to a license under a patent. It seems to have been advisedly brought and upon recognition of the probable futility of the prior suit. It will be useful to consider precisely what this second action involves. After the formal statement of the relations of the parties the complaint sets forth that under a contract between them a certain percentage of profits was to be paid by the plaintiff to the defendant (in addition to a guaranteed sum) dependent upon the realization of such profits from the sale of machines to be manufactured under an exclusive license granted by the defendant; that the guaranteed royalties were paid up to a certain date; that after that date they were not paid for a time, but that under a clause in the contract allowing them to be paid within sixty days after notice, a tender within the time was duly made sufficient to avoid a forfeiture; that no profits, as such, over and above tlie guaranteed amount were made; that the defendant seeks to enforce the forfeiture notwithstanding the tender ; that largq amounts have been expended by the plaintiff in establishing a plant, etc., and that irreparable injury would ensue from the enforcement of the forfeiture, the revocation of the license,- etc. The prayer for the relief is for an injunction perpetually restraining the defendant from doing certain things or claiming or announcing certain things in connection with the asserted forfeiture. There are several defenses interposed, one of. them being the pendency of action No. 1. As I look at the two suits, they are not similar; that is to say, they are not identical in subject-matter, in such a complete technical sense, as to make the pendency of the first a bar to the prosecution of the second, and that there may be no mistake as to the full* scope of this ruling, we will consider that, although the two actions were tried together, this, No. 2, was the first reached on the calendar. As already suggested, the earlier suit was for relief, depending altogether upon an accounting being decreed, while the second is for relief on the whole case and to prevent a forfeiture under a state of facts having no relation whatever to a mere antecedent accounting between the parties. Another defense is, that the defendant had the right to terminate the contract by giving the sixty days’ notice that the plaintiff had not complied with its provisions. It is not important to consider the effect of the terms of the notice as limiting the defendant’s right to claim a forfeiture to one specified ground. . I think the proper construction of the contract is, that net profits were to' be computed on all machines manufactured, and not on each separately. In other words, that while some might have paid a profit, others were disposed of at a loss or not sold at all, or, if sold, rejected by the purchaser and returned, and that the parties contemplated net profits on the business, and it is sufficiently shown by the proofs that when the defendant gave his notice there was nothing owing the defendant except the unpaid guaranteed monthly royalties. The remaining question of fact relates to them. They were not paid, and the defendant had a clear right to give the sixty days’ notice. But before the expiration of the time a tender of the amount was duly made. Although there is a very serious conflict of testimony on this subject I am compelled to find that such tender was made. Mr. Mitchell and Mr. Allen both swore to it. Tbe former, a lawyer knowing what was required to make a valid or sufficient tender, testifies in detail to all the circumstances attending it and as to the preparations he made —-even by taking the numbers of the bank notes both for making it and for preserving proof of it. He positively swears that he offered the money to the defendant, and Allen, a business man, intent upon the proper and technical accomplishment of the purpose, and who accompanied Mitchell, corroborates him fully. The defendant denies that any tender was made, but it seems to be clear that at the time his great anxiety was to make evidence for himself, anticipating that some technical matter was in hand which it is more than likely he did not understand. The testimony of the ' women called to sustain him (although undoubtedly intended to be truthful) is that of an inexperienced person, who probably, in the confusion of the defendant’s race (according to his own account) for witnesses to an impending interview, did not comprehend exactly what was going on, and that seems to be absolutely so from the manner in which Annie Henderson gave her testimony.

On the whole case, as to this action No. 2, I think plaintiff is entitled to a decree which should provide for an injunction on the payment of the fixed weekly royalties or the deposit thereof. The action could not be maintained simply as one to enjoin the defendant from representing or stating that the license was forfeited, but the relief, enjoining the enforcement of the claimed forfeiture by the defendant making or granting a new license to some one else,' which would introduce other parties, who could claim adversely to the plaintiff; the exclusive right given them, is a matter within the jurisdiction of this court. It does not affect the power of the defendant to sell or assign his patent subject to the plaintiff’s license, but simply maintains the right of the plaintiff under the license given it. Whether the decree should contain other provisions in favor of either party, especially as to the payment of guaranteed royalties up to the time of trial, is a subject which may require consideration, and I will hear counsel concerning it on the settlement of the decree, which may be done on two days’ notice. Meantime, the rulings upon findings proposed will be suspended, as, in view of what is here said, each party may desire to modify the findings presented, or submit additional ones.


text:
    Yellott D. Dechert, as Receiver, etc., of Joseph Ryan, Respondent and Appellant, v. Municipal Electric Light Company, Appellant and Respondent.

      When two agreements will not he construetjl together asoné instrument, so as to defeat a demurrer.

    Where it was tlie contention of a party to an action, whose pleading was demurred . to, that two certain contracts constituted parts of one transaction, and should, therefore, he read and construed together, if the subject-matter and terms of the contracts are different, neither containing any reference to the other, the plea of such person, in order to justify his contention, should contain allegations requiring an inference that the agreements should he read and construed together as one instrument; and if, on the contrary, the only inference presumable from the language employed in his pleadings, is that there were two distinct agreements, instead of two separate writings constituting one agreement, such agreements cannot he construed together so as to defeat the demurrer.
    Cross-appeals by the plaintiff, Yellott D. Decliert, as receiver, etc., of Joseph Ryan, and by the defendant, the Municipal Electric Light Company, from portions of an interlocutory judgment of the Supreme Court, entered in the office of tlie clerk of the county of New York on the 22d day of June, 1891, upon the decision of the court rendered at the New York Special Term sustaining the plaintiff’s demurrer to the second, third and fourth paragraphs of the defendant’s amended answer and overruling the plaintiff’s demurrer to the first paragraph thereof, and dismissing the partial defenses and counterclaims set forth in the seventh, eighth and ninth paragraphs thereof.

      Louis Marshall, for the plaintiff.

      Robert Payne, for the defendant.
   Parker, J.:

The order appealed from, in so far as it overrules the demurrer to the alleged defense contained in paragraph 6 of the answer, must be reversed. Paragraph 6 reads as follows :

“ YI. This defendant (alleging as it lias hereinbefore alleged), for a second, further and separate defense, alleges and avers that the placing of electrical apparatus by defendant in the premises oceupied by said Joseph. Ryan, and referred to in the complaint, and all the work done by defendant in and about the erection of said equipment, and the subsequent furnishing to said Joseph Ryan of electrical current, were done at the special instance of said Ryan, and upon and under the terms of certain written agreements, copies of which are hereto annexed, marked Exhibits ‘ A ’ and ‘ B ’ respectively, and same are hereby made a part of this amended answer; that immediately after the installation of said electrical equipment, and long before the alleged loss and damage complained of, the New York board of. fire underwriters did duly approve the said wiring and electrical equipments upon the premises of said Ryan, and duly gave written certificates of such approval, of all of which said Ryan had due notice.”

By the agreement marked Exhibit “ A,” the defendant agreed to supply an electric current to Ryan upon his premises, and he agreed to use such electric current, subject to the terms “printed on the back hereof, which are hereby agreed to.”

The printed terms upon the back of the contract thus referred to consisted of nine provisions, the eighth of which reads as follows :

“ The company is hereby released from all claims for damages resulting from the use of electric current when the wiring and electrical equipments on the premises of the consumer shall have been approved by the New York board of fire underwriters or other proper authorities.”

By the other agreement the defendant agreed to wire Ryan’s premises for 275 sixteen-candle power lamps located and distributed about the building, according to the specifications. The agreements bear the same date, but neither of them contains any reference to the other.

The contention of the demurrant is that the defendant so unskillfully and negligently did the work called for by the contract marked Exhibit “B” that the premises were set on-fire and completely destroyed, together with the stock then belonging to Joseph Ryan, and that the eighth provision quoted above as a part of the terms printed on the back of Exhibit “ A ” cannot avail the defendant, because it is an entirely different contract. The ground on which the Special Term based its decision overruling the demurrer was that the writings Exhibits “ A ” and “ B ” constitute parts of one transaction, and should, therefore, be read and construed together as forming part of one agreement. But this position is confronted with a difficulty which does not seem to have been brought to the attention of the Special Term.

The subject-matter and terms of the contracts being different, and neither containing any reference to the other, it was necessary that the answer should contain allegations requiring an inference that the agreements should be read and construed together as one instrument. This the pleader did not do: On the contrary, the only

inference presumable from the language employed is that there were two distinct agreements, instead of two separate writings constituting one agreement.

The demurrer to the’counterclaims set up in the 7th paragraph of the answer was, we think, rightly sustained.

So much of the interlocutory judgment as overrules the demurrer to the paragraph designated “ first ” should be reversed, and in all other respects it should be affirmed, with leave to the defendant to amend its answer within twenty days on payment of the costs of the action, neither party to have costs of this appeal.

Yan Brunt, P. J., and O’Brien, J., concurred.

So ordered.


text:
    Lillie J. Earle, Respondent, v. George H. Robinson, as Trustee, and Others, Appellants, Impleaded with Another.

      Action to declare a mortgage invalid — xohen the defendants may demcmd a foreclosure.

    The defendants, in an action brought to set aside a mortgage as invalid and for an injunction restraining the foreclosure thereof, may, under proper allegations in their answer, if successful in maintaining the validity of the mortgage and the right to enforce it, obtain all the relief that they could obtain in a new action instituted by them for the foreclosure of such mortgage.
    Appeal by the defendants, George II. Robinson, as trustee, and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of June, 1894, continuing a preliminary injunction granted in tlie action on tlie 2d day of May, 1894, and also from an order made at the New York Special Term and entered in said clerk’s office on the 26th day of December, 1894, denying the defendants’ motion to vacate said injunction order.
    This action was brought by the plaintiff to have it adjudged that a chattel mortgage executed by the defendant Ferdinand P. Earle to the defendant George II. Robinson as trustee, was invalid and unenforcible against the plaintiff or the goods, chattels or jtroperti.es belonging to the plaintiff in the Hotel Normandie in the city of New York, and that the defendants, and each of them, and all other persons be enjoined and restrained from foreclosing said chattel mortgage, or from interfering with or disturbing the possession of the plaintiff in any of the goods, chattels, properties and effects now in the said Hotel Normandie, and from selling, incumbering, removing, disposing of the same or any of them or assuming so to do.

      George M. Finney, Jr., for the appellants.

      A. J..Dittenhoefer, for the respondent.
   Per Curiam :

Many considerations urged by the appellants on the former appeal are again presented and require no further comment.

The question now to be considered is the change in the status of the parties affected by the retaking and sale of the property of the New Netherlands Hotel and the loss or deficiency resulting, to secure which it is claimed the mortgage on the Normandie was given. In this action plaintiff, among the other grounds of relief, asks to have the Normandie mortgage declared invalid, and for an injunction to restrain the foreclosure thereof. The fact that resort had not been first had to the property in the New Netherlands was one of the reasons for enjoining the defendants pendente lite. This, however, was not the sole ground. At the time defendants threatened to enforce the collateral mortgage on the property in the Normandie no default had occurred; and this, joined with other facts appearing, and notably the grounds urged against the validity of the mortgage, justified an injunction pendente lite upon condition of the giving of a bond to fully protect defendants, which was thereafter given.

It was stated upon tlie argument, and not denied, that this case is at issue and will soon be reached for trial. Notwithstanding, it is insisted by defendants that they should be permitted to foreclose the Normandie mqrtgage by action. An independent action, however, is unnecessary, as defendants, upon proper allegations in their answer in this action, if successful in maintaining the validity of that mortgage and the right to enforce it, would obtain more speedily all the relief that could be obtained in a new suit now to be brought.

If the supplemental answer is not sufficient, upon a proper showing and upon such terms as are just, the court at Special Term would no doubt permit the necessary amendments. This, we think, upon the facts appearing, would have been the better course, because affording defendants, if successful, all the relief that could be obtained in an independent action in which the plaintiff would interpose by way of defense the very facts upon which she seeks in this action to have the mortgage declared invalid; and thus there would be two actions pending between the same parties in respect to the right to foreclose the same mortgage. A court of equity never favors multiplicity of suits.

We think the order is right and should be affirmed, with ten dollars costs and disbursements.

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

Order affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of the Application of the Manhattan Railway Company, Respondent, v. August Klipstein and Others, Appellants, Relative to Acquiring Title to Certain Real Property in the City of New York.

      Second motion for an additional allowance — when irregular and properly denied.
    Where an order was made denying the defendants’ motion for an additional allowance of costs in a proceeding brought under chapter S3 of the Code of Civil Procedure to acquire certain street easements for the use of the plaintiff, a second motion made by the defendants for such additional allowance, if made without leave of the court, is irregular and the motion is properly denied.

      Appeal by the defendants, August Klipstein and others, from an order of the Supreme Court, granted at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of November, 1894, denying the defendants’ motion for an extra allowance.

      Jolm E. Parsons, for the appellants.

      Edwa/rd G. James, for the respondent.
   Follett, J.:

In January, 1893, the plaintiff began this proceeding, under chapter 23 of the Code of Civil Procedure, to acquire certain street easements for the use of the plaintiff, without having previously made a written offer to purchase the property sought to be acquired at a specific price. The defendants interposed answers denying certain allegations in the petition, and setting up new matters in defense, and the issues joined were, by an order, referred .to a referee to hear and determine. The defendants appeared before the referee and objected to proceeding before him, on the ground that lie was disqualified from acting as a referee for the reasons then stated. The referee overruled the objections, and the defendants withdrew, but the proofs of the plaintiff were taken, and thereafter the referee reported in favor of the plaintiff upon the issues referred to him. The defendants moved to set aside the report, and the plaintiff for an order appointing commissioners. The defendants’ motion was denied, and the plaintiff’s granted. In August, 1893, the commissioners awarded the defendants Murphy and McCormack $62,500' and the defendant Klipstein $9,250. The defendants moved for a confirmation of the report of the commissioners and for an additional allowance of costs, which was decided January 17, 1894, the report being confirmed and an additional allowance denied. The court on deciding the motion said:

“ The awards in this proceeding to my mind are extremely liberal under the proofs. I cannot adjudge them excessive under the circumstances, the commissioners having had facilities for weighing the evidence superior to those of the court. An extra allowance of $1,800 was granted in the equity suit. None should be given here-The motion to confirm report is granted and for an extra allowance denied.. Orders to be settled on two days’ notice.”

Afterwards the defendants.made a sécond motion for an additional allowance, which came on to be heard November 21, 1894, and an order was entered denying the motion upon the ground that a previous motion for the same relief was made by the defendants and denied January II, 1894. From the order of November 21, 1894, the defendants appealed, but they have not appealed from the order entered on the decision of January 1 J, 1894. The second motion, having been made without leave of the court, was irregular, was rightly denied, and the order entered thereon should be affirmed, with costs.

Yan Brunt, P. J., and O’Brien, J., concurred in the result.

Order affirmed, with costs.


author: Parker, J".:

text:
    In the Matter of the Probate of the Last Will and Testament of Lewis R. Blair, Deceased. William E. Blair and Others, Appellants; William Blair and Others, Respondents.

      Construction of the statute relating to wills — when the intent of the testator is immaterial — signature not at the end of a will.

    The primary rule for the construction of wills, requiring effect to be given if possible to the manifest intention of a testator, cannot be invoked in the construction of the statute relating to their execution. In such cases the courts consider the intention of the Legislature, not that of the testator.
    A testator directed the draughtsman who drew his will to write at the bottom of his will the following words:
    “I hereby direct my executors to sell at private sale that piece of real estate, with tenements and. appurtenances thereto, known as Number — East One Hundred and Tenth (110) street, in the city of New York, and occupied by Mr. Kosenthal, and the proceeds thereof to be devoted to liquidating any deficiency that may arise in interest, or cash bequests made in this will.”
    Thereupon, in the presence of both attesting witnesses, the testator signed his name and affixed his seal first immediately after the testimonial clause and second at the end of the provision conferring the power of sale upon his executors, and then declared the testament to be his last will and testament, and requested the witnesses to sign as subscribing witnesses, without in any way limiting his ássertion as to the provisions preceding his first signature, and the attesting witnesses signed above the clause granting the power of sale.

      Held, that a decision that the second or last signature was at the end of the will would not permit the will to be admitted to probate, as in that view of the case the subscribing witnesses would not have signed at the end of the will;
    That the first signature was not at the end of the will, within the meaning of the statute, and that such conclusion could not be overborne by the testimony of the draughtsman that the testator stated to him before such provision was written, and before the will was executed, “ It has nothing to do with the will, but I want you to add this, so that my executors shall have money enough to pay for funeral expenses and other things that may come up, and it wont interfere with the body of the will.”
    Appeal by the contestants, "William E. Blair and others, from a decree of the Surrogate’s Court of the county of New York, entered in the New York County Surrogate’s Court on the 19th day of November, 1894, admitting to probate a certain instrument as and for the last will and testament of Lewis R. Blair, deceased.

      A. B. Porter, for the appellants.

      James O'Neil, for the respondents.
   Parker, J".:

The surrogate decided that there was such a subscription and signing by the testator and witnesses at the end of the will of Lewis R. Blair as is required by statute, and admitted it to probate. The object of the statute is to surround testamentary dispositions with such .safeguards as will protect them from alteration, and to prevent fraud. The Court of Appeals said of it, in Sisters of Charity v. Kelly (67 N. Y. 409), that the provision “ is a wholesome one, and was adopted to remedy real or threatened evils. It should not be frittered away by exceptions. While its provisions should not be carried beyond the policy of the framers of it, that policy should not be defeated by judicial construction.”

Other cases in which the question has been in some form presented •are Matter of Hewitt (91 N. Y. 261); Matter of O'Neil (91 id. 516); Matter of Conway (124 id. 455); Matter of Case (1 N. Y. St. Repr. 152).

Neither in those cases nor in any others to which our attention has been called, has the precise question now presented been considered, but they all manifest an intention no the part of the courts to insist that the requirements of the statute shall be strictly enforced.

On the 8th day of December, 1887, Henry G. Leask, at the request of Blair, drafted for him a will containing some nineteen provisions. He was assisted in that work mainly by a prior will executed by Blair. While he was engaged in the work of preparing the new will for execution Blair was in an adjoining room, visiting with the draughtsman’s father, who was an old friend of his. As soon as the writing, including the attestation clause, was completed, the draughtsman invited Blair in and read the will to him, saying, as the reading was finished, “Is that your will?” To which Blair replied, “ Yes, that is my will.” Then Blair said, “ Now, I want you to add something at the bottom of that. It has nothing to do with the will, but I want you to add this, so that my executors shall have money enough to pay for funeral expenses and other things that may come up, and it won’t interfere with the body of the will.”

In accordance with his request the draughtsman added the following : “ I hereby direct my executors to sell at private sale that piece of real estate, with tenements and appurtenances thereto, known as Number-East One Hundred and Tenth (110) street, in the city of New York, and occupied by Mr. Rosenthal, and the proceeds thereof. to be devoted to liquidating any deficiency that may arise in interest or cash bequests made in this will.”

Another person was then brought in to subscribe the will as a witness, and in the presence of the subscribing" witnesses Blair signed the writing in two places, at the same time affixing seals, first, immediately after the testimonium clause, and, second, at the end of the clause which we have just quoted, which immediately follows the signatures of the subscribing witnesses, whose names were written next underneath the attestation clause.

Having done this he declared the instrument to be his last will and testament, and requested the witnesses to sign as subscribing witnesses, which they did underneath the attestation clause and before the provision purporting to confer a power of sale upon the executors.

The learned surrogate decided that Blair’s first signature was at the end of the will within the meaning of the statute, and admitted tliat which preceded it to probate as the last will and testament of Blair.

A decision that the second and last signature of Blair was at the. end of the will would have prevented- probate, because the statutory requirement that the subscribing witnesses shall sign at the end of the will would not have been complied with.

"Whether the court was right in deciding that the provision -which we have quoted, and the signature of Blair subscribed thereto, should be ignored must be considered. The first inquiry naturally relates to the character of this provision. Is it substantial ? Had the testator a definite and well-understood purpose when he instructed the draughtsman to write it out ? And was that purpose to prevent a failure of the will, as to interest and cash bequests, by providing for a sale of enough real estate to prevent it ? If the clause bo read and considered independently of the testimony of the draughtsman, an affirmative answer only is possible. And it is a fact not to be lost sight of, that the latter clause was signed and sealed by the testator at the same time and in the same way as the provisions which preceded the attestation clause.

It is urged that, notwithstanding such fact, and the further one . that it purports upon its face to constitute an important part of the will, it may be disregarded and the will held to have ended above the first signature, because of the testimony of the draughtsman that Blair in effect declared, when directing that the clause be written, that it had nothing to do with the will. It is clear that it was intended by Blair, by means of this provision, to make certain the payment of the various bequests given by his will.

And it seems to be equally clear that the idea which Blair intended to convey to his draughtsman was, that the added clause would not in any way affect the disposition of his property, which he was undertaking to make by the provisions already incorporated into the instrument.

But, if it be assumed that the language employed by him in giving instructions to his draughtsman is capable of the construction which the learned surrogate has put upon it, then the question is whether a testator’s conversation with his draughtsman can have the effect to contradict and overcome.a writing made and signed by him a few minutes later ?

For tlie power of sale clause, supported -by the signature and seal of the testator, effectually asserts that it constitutes a part of a testator’s scheme for working out such a distribution of his property as he had planned. And if its assertion can be set at naught by the testimony of the draughtsman alleging a contrary intention on the part of the testator, then there would seem to be opened a door-for fraud, which it was the aim of the Legislature to close. It is true that there is no suspicion of fraud in this case, and to sustain the probate of the will would -work out the intention of Blair, unless it should happen that there should not be moneys enough to pay the bequests by reason of the failure of the power of sale as to the One Hundred and Tenth street property.

In saying this, we do not lose sight of the facts that the primary rule of the construction of wills requiring effect to be given, if pos sible, to the manifest intention of the testator, cannot be invoked in the construction of the statute relating to their execution. In such cases the courts consider the intention of the Legislature, not that of the testator. (Matter of O'Neil, 91 N. Y. 516.)

But the fact that no harm will be likely to result in this case from a probate of that part of the will which precedes the first signature of Blair should not have much weight with the court, for the more important question after all is, whether the decision will establish a good or bad precedent. Bearing in mind that Blair directed the writing of the provision following the attestation clause; that in the presence of both attesting witnesses he signed his name and affixed his seal, first, after the testimonium clause and, second, after the provision conferí-ring a power of sale upon his executors, and directing “ the proceeds thereof to be devoted to liquidating any deficiency that may arise in the interest or cash bequests made in this will; ” and that he then declared it to be his last will, without in any way limiting his assertion to the provisions preceding his first signature, the conclusion must necessarily be reached that the first signature was not at the end of the will. And such conclusion cannot bo overborne by the testimony of the draughtsman that Blair said to him before it was written, and necessarily before execution, that such provision “ has nothing to do with the will.” But it should be further said that the witness’ testimony as a whole does not convey to onr minds the impression that Blair did not intend it to be a part of his will, but instead that he intended to give to his draughtsman the assurance merely that the addition of the clause would not affect the disposition of his property as provided in the instrument then written.

The draughtsman quotes Blair in saying : “ It has nothing to do with the will, but I want you to add this so that my executors shall have money enough to pay for funeral expenses and other things that may come up, and it wont interfere with the hody of the will

We think it must be held that the first signature of Blair was not at the end of the will, and it follows that the decree, admitting so much of the instrument to probate as precedes it, is in violation of the statute requiring the signing by the testator at the end of the will.

The decree should be reversed and probate denied, with costs to all parties, payable out of the estate.

Yan Brunt, P. J., and Follett, J., concurred.

Decree reversed and probate denied, with costs to all parties, payable out of the estate.