author:
Sanford, J.
      By the Court.—Speir, J.

text:
    JAMES PURSELL, Plaintiff and Appellant, v. THE NEW YORK LIFE INSURANCE AND TRUST COMPANY and others, Defendants and Respondents.
    I. DEMISED PREMISES, ACT FOR THE RECOVERY OF; PROCEEDINGS UNDER WHICH ARE DESIGNATED “ SUMMARY PROCEEDINGS. ”
    1. RESTORATION OF PREMISES TO LESSEE UNDER CHAP. 340 (P. 393), OF THE LAWS OF 1843, AFTER DELIVERY OF POSSESSION TO THE LANDLORD.
    (<t) Pre-requisites to Restoration.
    1. Payment or tender, within one year after the delivery of possession to the landlord, of all rent in arrear to the time of such payment or tender, and all costs and - charges incurred by the landlord, is a pre-requisite.
    1. Tenderr of the difference between such arrears of rent, costs, and charges, and either the gross or net profits received by the landlord during the interval, is not sufficient.

      (b) Action for Restoration.
    1. An action against landlord for an account of the rents and profits received by him, and a restoration or redemption upon payment of the excess of the rent in arrear, costs and charges over the rent and profits, cannot be sustained.

    So, also,
    3. An action, founded on an averment that the rents and pi'ofits received by the landlord exceeded the arrears of rent, costs and charges, for an accounting, for judgment against the landlord for the balance found due plaintiff on such accounting, and for judgment of restoration, can not be sustained.

    H. STATUTES.

    1. REPEAL BY IMPLICATION.

      (a) R. S. of N. Y., part 3, chap. 8, title 10, art. 3, § 43, is not repealed as to leases having an unexpired term of five years to run, by chap. 340 of the Laws of 1843.

      (b) Doctrine of repeal by implication considered.

      Before Curtis, Ch. J., Sedgwick and Speir, JJ.

      Decided May 8, 1877.
    An appeal from a judgment entered upon a decision in favor of the defendants, dismissing the complaint with costs.
    On March 24, 1368, the defendants leased to the plaintiff the premises on the south-east corner of Broadway and Twenty-second street, in the city of Hew York, for the term of twenty-one years, which premises the plaintiff sub-let to various tenants. On September 4, 1874, the defendants issued a warrant under dispossession proceedings, for the possession of the premises on three quarterly installments of arrears of rent, and the defendants, the Trust Co. as trustees, and others in their own right, took possession.
    The action was commenced April 14, 1875.
    The complaint in substance averred the above matters, and in addition thereto, averred :
    That the rents of the premises since September 6, 1874, due from plaintiffs, the under-tenants, according to the terms of their several leases, exceeded the amount of rent due from the plaintiff to his landlord at the time of the commencement of this action, together with all costs and charges incurred by said landlord ; that plaintiff had furnished the defendants an account of the rents due, and to grow due, and the interest and the amounts to be credited on account of the rents from the under-tenants ; that the same had been received and retained by the said Trust Company without objection ; and by the said account there is no rent in arrear, but the plaintiff is entitled to the possession of the premises under the statute in such case made and provided, for the unexpired term of the lease under which the plaintiff held the premises exceeded five years at the time of the issuing of the warrant upon said summary proceedings.
    That the plaintiff had duly demanded that the premises should be restored to him by the defendants, and that he might hold and enjoy the same according to the terms of the original demise, which the defendants had refused. And prayed that an accounting might be had between the plaintiff and defendants, in. respect to the rents heretofore accrued and now due upon the lease made by the defendants to the plaintiff; that the amount of rent due from the tenants might be determined and credited on the amount due; that if, upon such accounting, it should be found that any money was due to the plaintiff by defendants, he might have judgment for such sum, and that he might have judgment restoring the premises to him, and that he should hold and occupy the same, according to the terms of the original demise, and that he might have such other or further relief as to the court shall seem just.
    All the defendants answered the complaint.
    Both sides adduced evidence on the trial.
    On the evidence thus adduced the learned judge before whom the cause was tried, found, among others, the following facts. .
    “ Third. That, in a summary proceeding for the recovery of said premises by the lessors, on account of the non-payment of three quarterly installments of rent, to wit, a principal sum of §13,743.75, before the Hon. James W. Fowler, justice of the district court in the city of Mew York for the third judicial district, after a trial on the merits and judgment duly rendered in favor of said lessors on September 1, 1874, on account of the said lessee’s default in the payment of said three installments, the said magistrate duly issued his warrant for the removal of all persons from said premises, and to put said lessors in full possession thereof.

      “ Fourth. That on September 4, 1874, the said warrant was duly executed, and by virtue thereof the said lessors, the defendants, were placed in full possession of said premises.

      “Fifth. That on April 14, 1875, the date of the first service of any of the defendants in this action, the amount of rent which would be in arrear as by the terms of said lease, was five quarterly installments of $4,581.25, making a principal sum of $22,906.25 ; and,on September 5, 1875 (to wit, one year from the date of the execution of said warrant), seven quarterly installments, making a principal sum "of $32,068.75; and, on the trial of this action, eight quarterly installments, making a principal sum of $38,650; and that the gross sum of rents and profits received by the defendants from the said premises, from the date of the execution of said warrant up to the said April 13, 1875, was $12,808.31, and the net rents and profits, $12,030.33; and, on the said September 5, 1875, the said gross sum was $18,658.28, and the net'sum $17,394.14; and, on the trial of this action, the said gross sum was $25,791.59, and the net sum $24,123.22.

      “ Twelfth. That at no time since the execution of said warrant, and before the commencement of this action, or since, did the plaintiff pay or tender to the defendants, their representatives or attorneys, or any of them, or to the said magistrate, the amount of rent in arrear, and the costs and charges incurred by the landlords, or any portion of either of said sums, and tha.t the plaintiff made no tender whatever, excepting of the said account.”
    On the findings, judgment was entered, whereby it was “ ordered, adjudged and decreed that the plaintiff has not redeemed the premises described in the complaint, and is not entitled to the possession of the same, and that the defendants, are rightfully in possession thereof.”

      And also adjudging that certain defendants recover certain sums for costs and disbursements.
    From this judgment the present appeal is taken by plaintiff.
    At special term the following opinion was delivered.
   Sanford, J.

The plaintiff, tenant under a lease from defendants and holding over after default in the payment of rent, was dispossessed of the demised premises, on September 4, 1874, by virtue of a warrant issued under the act authorizing “ summary proceedings to recover the possession of land” (2 R. S. 515, § 39). The warrant was duly executed, and the landlords, defendants in this action, were on that day put into full possession. The act (section 43) declares that “whenever a warrant shall be issued as aforesaid,” “ the contract or agreement for the use of the premises, if any such exists, and the relation of landlord and tenant between the parties, shall be deemed to be canceled and annulled.” It was held, in Hinsdale v. White (6 Hill, 507) that this provision annuls the lease from the time of the default for which the warrant issues. The lessor, as owner of the reversion, on resuming possession, is in as of his former estate, and the lessee becomes absolutely divested of all estate in the land. But in this case, inasmuch as the unexpired term of the lease under which the premises were held, exceeded five years at the time of issuing such warrant, the plaintiff, by virtue of chapter 240 of the Laws of 1853, still has the option and privilege, at any time within one year after his eviction, of paying or tendering to the lessors, their representatives or attorney, or to the. officer who issued the warrant, all rent in arrear to the time of such payment or tender, and all costs and charges incurred by the landlords, and in such case, of having the premises restored to him, and thereafter holding and enjoying the same, without any new lease thereof, according to the terms of the original demise. I do not regard this provision as a repeal of section 43, above referred to.

Its effect is rather, upon compliance with the condition, to create anew a relation of the same character with that which was canceled and annulled, and to effect a demise, by operation of law, commencing from the date of such compliance, and continuing thereafter, during the term, and upon the same conditions as prescribed by the original lease. It-is not claimed or pretended that payment or tender was ever made by the . plaintiff to the defendants, or their attorney, or to the officer who issued the warrant; but in April, 1875, the plaintiff commenced this action, in the nature of a .suit in equity, alleging, among other things, in his complaint, that on the first day of May, 1874, and thereafter until the present time, the premises were occupied by sub-tenants of his, who had severally agreed to pay rent therefor to him, that such rent due from such sub-tenants exceeded the amount of rent due from him to the defendants, with all costs and charges incurred by them; that on March 8,1875, he démanded of defendants an account showing the rents collected by them, and the amount due to them from himself ; that such demand was not complied with; that he thereupon tendered to them an account showing that upon crediting him with the rents payable by such sub-tenants, no rent due from himself remained in arrear; that such account was received and retained by defendants without objection ; that he is therefore entitled to possession, and has demanded that the premises be restored to .him.

The complaint concludes with a prayer for the restoration of the premises, for an accounting with respect to such rents, and for a money judgment for such sum as, upon such accounting, shall be found due and payable to him.

The novel and ingenious theory upon which this action proceeds, involves the proposition- that when the legislature, in clear and precise terms, singularly free from ambiguity- or uncertainty, has prescribed conditions upon which an estate may vest, a court of equity, in the absence even of an attempt at compliance, and without so much as an offer to comply, or the suggestion of an excuse for the omission, may accept something else in lieu of the condition imposed,—the commencement of a chancery suit, for instance, of indefinite duration and doubtful result,—as an equivalent substitute for an immediate money payment; and, by the inherent authórity of its own arbitrary decree, may declare the estate vested, thus overriding the manifest purpose and intent, as well as the literal requirements of the statute. A somewhat similar view of the province and the scope of equity jurisdiction was suggested to this court in- the case of Durgan v. Hogan (1 Bosw. 645), but was promptly and decisively repudiated, in terms which I have, to some extent, adopted.

It is possible, that after the fulfillment of the statutory requirement and the establishment of plaintiff’s rights by actual payment and acceptance of the rent in arrear, an equity may arise which will entitle him to an accounting (Crawford v. Waters, 46 How. Pr. 210); but I am wholly unable to discover such equity in the allegations of the complaint in this cause, or in the proofs adduced at the trial.

Upon the trial it appeared that upon the execution of the warrant, every sub-tenant of the plaintiff was, in point of fact, removed from the premises, and that new agreements were thereupon entered into between the defendants and each of such sub-tenants with respect to the future occupancy of their several tenements. Can it be seriously maintained that the landlords were under an obligation to the plaintiff to retain such sub-tenants for a year, or that, after having been removed, they, or either of them, were under the-slightest obligation to any one to return % It is contended on behalf of the plaintiff, that during the year the estate and possession of the landlords were closely analogous to those of a mortgagee in possession', and that they held the lands in trust for their evicted tenant. There is a“t least this distinction in the two relations; that the mortgagor is still liable for the mortgage debt and accruing interest, notwithstanding that possession is in the mortgagee while the evicted tenant, with his lease canceled and annulled, is- burthened with no covenant to pay rent, and, indeed, is under no liability whatever. If the analogy hold good in respect of the results deducible from it, he may idly fold his hands, .and speculate upon the diligence of his trustee, reaping a rich reward therefrom, if the season prove prosperous, and the harvest be abundant, but turning on his heel if the crop should chance to fail.

It further appeared on the trial that the alleged account rendered by plaintiff, made up in manner and form as stated in the complaint, was never accepted or acquiesced in, but, on the contrary, was disapproved and disavowed ; and that the net income actually realized by the defendants fell short of the plaintiff’s rent in arrear; that no such laches in the care and management of the property was shown as would entitle plaintiff to charge defendant with a rental in excess of their actual receipts, much less with a rental equivalent to that for which his sub-tenants would have been liable to him but for his default and eviction, even were the defendants accountable to him, upon principles applicable to the case of a mortgagee in possession.

But I am of opinion that the act of 1842 (4 Edm. Stat. at L. 661), was correctly construed by Judge In-graham, in the case of Waters v. Crawford, and by Judge Fancher in another suit between the same parties, cited above, and entitled Crawford v. Waters (the latter case reported in 46 How. Pr. 210). In the case first cited, Judge Ingraham held that “the lessee must tender all rent in arrear at the time of such payment or tender.” “There is nothing,” he says, “in the statute which provides for the reduction of the rent in arrear by crediting rents subsequently collected by the owner. What may be the liability of the landlord to account to the lessee after he regains the possession is not necessary now to be decided ; but it is not provided in this statute that any such credit should be given before the lessee obtains the restoration of the lease.

“The provision which allows the tender to be made to the officer who issued the warrant, as well as to the parties, shows, that it was not intended that any inquiry should be made as to these credits. He could know from the lease the rent in arrear, and also the amount of costs on the proceedings before him. That he was authorized to receive, but he could not ascertain the amount of rent collected afterwards or the necessary amount of repairs.” It may be added, in this connection, that the tender or payment authorized to be made to the lessor, his representatives or attorney, is one and the same.

Whatever ground there may have been, in the case cited, for relieving the plaintiff therein from the legal consequences of his omission to comply strictly and literally with the requirements of the act,—for it would seem from the report of this case on appeal (Waters v. Crawford, 2 Supreme Ct. R. [T. & C.] 602), that the supreme court in the second department, after a transfer of the case thither in consequence of a division of opinion on the part of the court here, came to the conclusion that he might be relieved,—no ground is suggested for an equitable interference of like character in the case now under consideration. There performance was in good faith attempted, and there was in reality a partial performance of the statutory condition.

Here the obligation to perform is denied and repudiated.

The plaintiff, in effect, refuses to perform.

The principle upon which courts of equity interfere to prevent or to relieve from forfeitures threatened or incurred, in cases of fraud, accident, mistake, surprise, or even of excusable neglect, where compensation can be awarded, is familiar.

That principle was recognized and acted upon by this court in Garner v. Hannah (6 Duer, 262), and in Giles v. Austin (38 N. Y. Superior Ct. R. 215, 235). In Haywood v. Angell (1 Vern. 233), the lord keeper said that “in all cases where the matter lies in compensation, be the condition precedent or subsequent, there ought to be relief.” An important difference, however, in this respect between the breach of a precedent and that of a subsequent condition exists, and was very clearly pointed out by Judge Cadwallader, of the United States circuit court, in the recent case of Bird v. The Penn Mutual Life Ins. Co. (Legal Intelligencer, Feb. 11, 1876).

“In the latter case,” he observes, viz., in that of the breach of a condition subsequent, “ relief may be given where compensation can be made, although the nonperformance of the condition has occurred through mere negligence, unless it has been willful or pernerse neglect.

“ But a court of equity does not in any case relieve against losses consequent at law upon the non-performance of a condition precedent, where such non-performance occurs through neglect alone.”

(See also Sugden on the Law of Property as administered by the H. of L. 556-579).

But upon this principle, it is difficult to perceive what relief can be afforded to the plaintiff, who has deliberately elected not to perform the condition upon performance whereof alone his restoration to his former rights was made by statute to depend. He disclaims the obligation to perform, and insists upon a supposititious substitute for performance wholly unwarranted by the statute.

Arnoux, Ritch & Woodford, attorneys, and William Henry Arnoux, of counsel for appellant, in an elaborate brief, urged:

(1) That § 43 of art. 2, title 10, chap. 8, part 3, R. S.. was, so far as leases were concerned, having five years to run, repealed by chap. 240' of Laws of 1842. (2) That as a consequence, the possession of the landlord during the year was for the benefit of the tenant, and that he held in the character of a trustee. (3) That, consequently, the doctrines which obtained between a mortgagor and mortgagee in possession, a bailor and bailee, an owner and his creditor in possession under the English writ of elegit, applied to this case.

Van Winkle, Candler & Jay, attorneys, and Edgar S. Winkle, of counsel for respondents, Susan H. D’Hauteville as administrator, and Susan W. D’Auterville in her own right, and Belts & Robinson, attorney, and N. J. Morris, of counsel, for the N. Y. Life Insurance & Trust Co., in a well considered brief combated the propositions contended for by appellant’s counsel.

His attitude is not that of a suppliant for the equitable interposition of the court to relieve from a forfeiture upon an offer of full compensation, but rather that of an injured suitor claiming as matter of right a judgment of the court, enlarging and extending the operation of a remedial statute, of whose liberal and beneficent provisions he has willfully refused to avail. I am not aware of any principle upon which such an exercise of equitable jurisdiction can be invoked or sustained.

Judgment must be rendered in favor of the defendants, with costs.

By the Court.—Speir, J.

The defendants, the Trust Co. as trustees, and the others in their own right, took possession of the premises upon the plaintiff being evicted under the summary proceedings, and he brought his action in the nature of a suit in equity within the year for restoration, under the statute of 1842. In it he claims an accounting in respect to the rents which he alleges theretofore accrued and became due on the lease, and the "rents received subsequent to the eviction from the sub-tenants, and prays that the same may be determined, and credited to the amount due to the defendants; and if, upon sudh accounting, it shall be found that any moneys are due to the plaintiff by defendants, he may have judgment for such-sum, and judgment restoring the premises to him, to be occupied according to the original demise.

To sustain this action, proof should be made that the plaintiff has complied with the requirements of the statute upon which he relies for the restoration of the premises to him as lessee. Within one year after the delivery of possession to the landlord, he must pay, or tender to the lessor, his representatives or attorney, or to the officer who issued the warrant, all rent in arrear to the time of such payment or tender; and all costs and charges incurred by the landlord.

The defendants moved upon the plaintiff’s case to dismiss the complaint, which was denied. An accounting was then had on the trial, and the court found that no such payment or tender of rent in arrear, costs and Charges were made either to the defendants, their representatives or attorneys, or to the magistrate who issued the warrant, and no tender of anything, excepting tender of a certain account.

This account was constructed by charging the defendants with certain amounts which had been provided in a contract between the plaintiff and one William Stuart, whereby the plaintiff was to build a certain theatre, and lease the same to Stuart, though Stuart had never paid the plaintiff any amount whatever ; but had sued the plaintiff for damages for breach of this contract to build and lease. It cannot be claimed that these moneys received by the owner in his own right from other parties can form any part of the rent due to the evicted lessee on his lease. Nor can the evicted lessee make tender by including in the sum offered, any amount received by the owners above supposed expenditures.

The statute under which the eviction was had provides that upon the issuing of the warrant, the contract or agreement for the use of the premises, if any such exist, and the relation of landlord and tenant, between the parties, shall be deemed to be canceled and annulled. The language of both statutes is too plain for either interpretation or construction. The words embody a precise and definite meaning apparent upon the face of the statutes. Moreover the question has been determined in a judicial way, and the parties and their proofs have been heard, and their rights settled by a judicial determination. When this has been done, the determination is conclusive upon the parties until reversed, vacated, or set aside in the form prescribed by law. This is a principle of universal application, and results from the judgment of dispossession in the summary proceedings. It extends alike to the decisions of the highest court, and the humblest officer of the State entrusted with the exercise of judicial powers (White v. Coatesworth, 6 N. Y. 143). The effect of the judgment and its execution therefore is that the lessee is divested of all right to and control over the property, and the owners are in possession as of their former estate, as owners of the reversion. While the lease remains canceled, the lessee has no right to the possession of the premises, and no right of action in relation to them until he shall have established such right by payment or tender as prescribed by statute.

The plaintiff claims to be released from this duty and obligation, imposed by the statute, of payment or tender, on the ground that the latter statute of 1842 repealed the prior statute, which declares that whenever a warrant shall be issued in a summary proceeding, “ the contract or agreement for the use of the premises and the relation of landlord and tenant shall be deemed canceled and annulled,” so far as it applies to leases having an unexpired term of five years at the time the warrant issued.

The repeal of this part of the statute is made the basis of the counsel’s argument in support of his views of the law of the case.

It was doubtless the intention of the legislature in passing the statute to relieve the tenant from the harsh severity of the law of 1820.

Leases having more than five years to run might become and frequently were generally very valuable, owing to the increased value of the land and improvements made in contemplation of the enjoyment of a long term. In case the tenant became unfortunate and failed to pay an installment of rent while in possession during the first five years of the demised premises, the dispossession was supposed to work a very considerable hardship.

The question therefore is one of intent in framing the statute.

Ordinarily express language is used where a repeal is intended, and a repeal by implication is not favored. In Bower v. Lease (5 Hill, 225), Nelson, Ch. J., said, “ The invariable rule of construction in respect to the repealing of statutes by implication is, that the earliest, act remains in force, unless the two are manifestly inconsistent with and repugnant to each other; or unless in the latest act some express notice is taken of the former, plainly indicating an intention to abrogate it.”

The reason of the rule is that when the mind of the legislature has considered the object and details of the subject of the statute, and not in express language contradicting the- original act, the latter act shall not be considered as intended to affect the previous provisions of the former, unless it is absolutely necessary to give the latter act such a construction as that its words shall have any meaning at all.

It appears that the mind of the legislature was pointedly turned to the intention it had in view in framing this act of 1842.

The legislature therefore repealed an amended act, passed April 25, 1840—being an amendment to subdi-. vision 2 of section 38 of chapter 8 of title 10 of the third part of the Revised Statutes. The amended act which was repealed was to the effect that subdivision 2 should not be construed to apply to any lease, the unexpired term of which should not exceed five years. The attention of the legislature was therefore called to the necessity of repealing so much of the act authorizing summary proceedings as regarded leases exceeding the term of five years ; and it follows that in its judgment no further repeal was necessary. The right of payment or tender is not alone limited to the tenant. Provision is made for the mortgagee and judgment creditor, either of whom may pay the rent in arrear. This right they get in the same way as the tenant—by the force and sanction of the statute. The statute itself cancels the lease .upon eviction, and the lessee has no right of action while the lease remains canceled.

Payment or tender of the rent in arrear must be the first step taken towards restoration, and until that be done no right of action accrues. The lessee has no standing in court, as against the owner, in respect to the premises, until he establishes such right as prescribed by statute, by making payment or tender.

He has therefore, ho right to an accounting of the profits received by the owner under the statute, and if not under the statute, he cannot have it in equity. If the law commands or prohibits a thing to be done, equity cannot enjoin the contrary, or dispense with the obligation.

The general term of the supreme court, in Waters v. Crawford, 2 T. & C. 602, decided that under the prayer for general relief, the plaintiff was entitled to an accounting. The decision was put upon the ground that the prayer for general relief was equivalent to a special prayer for redemption.

The special term had decided that the plaintiff was not entitled to an account, and I think in that case, the general term rightly held that was error. The accounting might have presented such a case as would .have entitled the lessee to redeem under the statute. That was quite unlike the present case. There was a partial performance of the statutory condition to make payment or tender, and the plaintiff in good faith undertook to perform, but misapprehended the construction Of the statute.

Here, although no attempt to perform the statutory requirement was made, the court allowed the accounting to take place, and upon the facts ascertained held that the plaintiff had no case.

The judgment of the special term must be affirmed with costs.

Curtis, Ch. J., and Sedgwick, J., concurred.


source: Caselaw Access Project

author: By the Court.—Speir, J.

license: Public Domain

text:
    ELIJAH DOANE and another, Plaintiffs and Appellants, v. WILLIAM LINDSAY, Assignee, Defendant and Respondent.
    I. PARTNERSHIP.

      . 1. ATTACHMENT ISSUED, IN AN ACTION AGAINST CO-PARTNERS UPON A FIRM DEBT, AGAINST ONE OF THE FIRM.

      (a) What can be seized under.
    1. Only the right and interest of the partner against whom the attachment issued, in the partnership goods; which is the surplus remaining after the partnership debts have been paid.

      (b) Agreement between attaching creditor and subsequent assignee of the firm, whereby in substance the assignee was to sell the attached goods; and the applicability of the proceeds to be determined by the court or otherwise, as the parties might agree.
    1. Effect of. It places the attaching creditor in the position of a jiurchaser of the attached interest at a sheriffs sale thereof.
    Held—
    it appearing on the trial of an action brought by the attaching creditor, based on such agreement, that at the time of the levy of the attachment the firm was insolvent, that no part of the proceeds was applicable on the judgment obtained in the action in which the attachment issued, and therefore the complaint, was prop- ■ erly dismissed.
    Before Curtis, Ch. J., and Speir, J.

      Decided May 8, 1877.
    Appeal from a judgment in defendant’s favor, entered upon findings of fact and law, made by the judge who held the court at special term, before which it came and was tried without a jury.
    On December 21, 1875, the plaintiffs were copartners doing business under the firm-name of Doane & Gott, and on the same day John Winans and Jared Flagg were copartners doing business in the same city under the firm-name of John Winans & Company. On that day said firm of John Winans & Company were indebted to the plaintiffs in the sum of $864.10 with interest thereon, for goods sold and delivered to them by plaintiffs herein; and on said day and for a long time prior thereto the said Winans was, and had been a non-resident of the State of New York, but said Flagg was a resident of the city of New York. On said day plaintiffs commenced an action in the supreme court of the State of New York, against said Winans and Flagg as such copartners to recover said sum of $864.10 for goods sold and delivered them as aforesaid by said plaintiffs, and on said day obtained a warrant of attachment directed to the sheriff of the city and county of New York, and commanding him “to attach and safely keep all the property of the said defendant Winans within your county or so much thereof as may be sufficient to satisfy -the plaintiffs’ claim of $864.10 with interest as aforesaid, together with the cost and expenses.”
    By virtue of said warrant said sheriff on said day took into his possession under said attachment a large amount of merchandise, being of the value of $2,000 and upwards, and being all the stock in trade of said John Winans & Company. Said Winans and Flagg were partners and owners of said stock in trade, and Winans had at least a half interest therein.
    The summons arid complaint in said action were served simultaneously with the levy under said attachment on both of said defendants. On the same day, but several hours after said levy, and before any judgment was entered in said action, said firm of John Winans & Company made a general assignment of their property for the benefit of their creditors, to the defendant in this action. Such proceedings were had in said action, that judgment for failure to answer was duly entered in favor of the plaintiffs and against said Winans and Flagg, on January 11,1876, for $965.56.
    On December 81, 1875, the parties to this action made and entered into the following agreement in the action in which the attachment issued.
    “N. Y. Supreme Court.
    “ Doane and Gott,
    v.
    “John Winans & Company.
    “It is hereby agreed that the assignee of the above-named defendants may sell the attached property herein, and that he retain in his hands the proceeds of such sales, such proceeds to take the place of such attached property and to be applicable to the payment of the plaintiffs’ claim in this action, if the court shall so order; and shall in all respects be applicable to the same extent as the property if unsold would be applicable to the payment of any judgment recovered by the plaintiffs herein. The question of such applicability to be hereafter determined by the court or otherwise, as may be agreed upon by the respective parties hereto; and said assignee hereby agrees to hold said proceeds to be disposed of as aforesaid; and-it is further agreed that any goods in the hands of said assignee which were consigned to defendants by plaintiffs, be sold in the same manner and the proceeds be held subject to such further order and determination as may be had in the premises by the. respective parties hereto, and said assignee hereby agrees to hold said proceeds and the proceeds of any of said consigned goods which have heretofore been. sold, subject to such order or determination.
    “Dated, December 31st, 1875.
    [Sd.] William Lindsay, Assignee,
    [Sd.] Isaac L. Milleb, PI’fife Atty.”
    The defendant herein in pursuance of said agreement sold said attached property, from which he received and now holds in accordance with said agreement the sum of $2,200.
    It was admitted that the debts of the firm at the time of the attachment were about $3,000.
    The judgment appealed from is based on the above agreement.

      Isaac L. Miller, attorney, and of counsel, for appellants, urged :
    I. The sheriff was not only justified, but it was his duty to take manual possession of the copartnership property under the attachment, and the defendant in this action, as assignee, could not have retaken the same by replevin (Smith v. Orser, 42 N. Y. 132 ; S. C., 43 Barb. 187 ; Goll v. Hinton, 8 Abb. Pr. 120, and cases there cited). The court will observe that these decisions are in actions brought against one or more members of a partnership by private creditors, and not on a copartnership indebtedness ; while the original action brought by plaintiffs, and in which the attachment was issued, was a suit against all the members of a copartnership, and on a copartnership indebtedness.
    II. The possession of the sheriff being lawful, the plaintiffs, by virtue of the levy under said attachment, ceased to be creditors at large of said firm of John Winans & Co., but became creditors, having a specific lien on the goods and chattels attached (Richney v. Stryker, 31 N. Y. [4 Tiff.] 140 ; Frost v. Mott, 34 Id. [7 Tiff.] 253 ; Heye v. Bolls, 2 Daly, 231).
    III. It having thus been demonstrated, (a) That the sheriff was lawfully in possession of the property attached ; (b) that, by virtue of the levy, plaintiffs ceased to be creditors at large, and became creditors having a specific lien on iSie property thus attached ; we come to the real questions at issue, viz : 1. Is the interest of a member of a partnership in partnership effects, property capable of being attached ? 2. If such interest is attachable, what rights, if any, did plaintiffs acquire by virtue of said levy, under the attachment ? (Winans had, at least, one-half interest in the partnership stock in trade seized under the attachment.) 1. The interest of a partner is “property” capable of attachment (McKay v. Harrower, 27 Barb. 463 ; approved in Smith v. Orser, supra). Partners are joint tenants in the stock and all the effects. They are seized per mi et per tout (Phillips v. Cook, 24 Wend. 389, 393, cited and approved Smith v. Orser, supra; Mabbett v. White, 12 N. Y. [2 Ker.] 442, 454, 455 ; Wells v. March, 30 N. Y. 344, 350 ; Baldwin v. Tynes, 19 Abb. Pr. 32). The corpus of the effects is partnership property (Menagh v. Whitwell, 52 N. Y. 146, 158 ; Parsons on Partn. 150; Brinkerhoff v. Marvin, 5 Johns. Ch. 320, 328 ; Berry v. Kelly, 4 Rob. 106,125). These decisions appear to establish beyond all controversy that a partner’s interest in partnership effects is property, and the conclusion seems to follow naturally and inevitably that as such it, can be taken under attachment and held to await the final decision of the case. 2. As to the right acquired by plaintiffs by the levy made under the attachment. It being admitted, that the defendant, as assignee, has in his possession $2,200 proceeds realized from the sale of the attached property, and that said Winans was interested in said property to at least the extent of one-half, and as plaintiffs are fully protected by the stipulation, it seems to be perfectly obvious in the light of the decisions under subdivision one of this point, that plaintiffs are entitled
      to judgment against defendant as such assignee to the full extent of their claim with costs. But at this stage of the case plaintiffs are met with the following objections, viz., a partner is interested only in the surplus remaining after the payment of the firm indebtedness ; that plaintiffs could only attach that interest; that Winans & Co. were insolvent, therefore nothing could remain after payment of firm indebtedness, and that, therefore, plaintiffs attached nothing, and the following cases are cited in support of this theory (In re Smith, 16 John. 126; Allen on Shff. [Ed.] 1845, 154). In re Smith maybe considered as overruled by Smith v. Orser, supra, see opinion of Lott, J. With reference to this objection it should be noticed that the authorities holding the interest of a member of a partnership in partnership effects to consist merely in the surplus remaining after the debts of the firm have been paid, will be found to be at the suit of a private creditor (3 K. C. 78, note b, 11th Ed. ; Menagh v. Whitwell, Smith v. Orser, Goll v. Hinton, supra). By a critical examination of the opinion of Rapallo, J., in Menagh v. Whitwell, it will be seen that though he appears to state this rule more broadly (see p. 158), yet in reality he refers to actions brought by private creditors of one or more members of the copartnership or by parties claiming under one or more. The reason of this rule is twofold: 1. For the protection of copartnership creditors, i. e., partnership debts have in equity an inherent priority of claim to be discharged from partnership property (Menagh v. Whitwell, supra). 2. For the protection of the other members of the co-partnership, i. e., in order that partnership assets may not be used in the liquidation of private indebtedness of one partner to the prejudice of the remaining copartner.
    IV. This case was dismissed. The court following ‘‘ "with some doubt ’ ’ Berry v. Kelly, supra. The court in that case did not and could not hold as stated in the special term opinion rendered in this case, that “ an attachment by a firm creditor of the goods of one of the firm, in an action against the firm, on a firm indebtedness, did not enable the sheriff to levy on a greater quantum of interest in firm property than if the plaintiff was a creditor of the defendant in the attachment individually,” for the following reasons: 1. 'Said firm of Carroll & Mead was insolvent and unable to pay its debts. 2. That being the case, if plaintiffs occupied no better position than individual creditors of the non-resident defendants, against whom the attachment was issued, they only attached the interest that said non-resident defendants had in the surplus remaining after the payment of the partnership indebtedness (Menagh v. Whitwell, Smith v. Orser, supra), and the partnership being insolvent, there would be no surplus or interest therein remaining, consequently nothing attachable. 3. The sale, therefore, to Berry would have transferred all the right, title and interest of the partnership to the goods so sold, and the plaintiff Berry would have been entitled to recover against the sheriff, not one-third of what the said attached goods were worth, but the full value thereof, which was not pretended. The court in Berry v. Kelly did state that the individual partner’s right to appropriate partnership property to pay partnership debts could not be levied on by attachment. It not being property in any sense of the word, but a mere incident upon the relation of - partnership. It is assumed that by the phrase, “right of appropriation,” the court meant that the only interest that each partner had in partnership effects was the right to use or “appropriate” the same in liquidation of partnership debts. Plaintiffs attack this proposition on the following grounds : 1. The court at special term proceeded upon the theory that the plaintiffs in the attachment suit acquired certain rights under and by virtue of the levy under said attachment, and awarded damages against the sheriff. The general term affirmed- the judgment against the sheriff, upon the theory that the sheriff had no right to sell the whole of the attached property. Having thus decided, the case was disposed of, and the remarks as to the “right of appropriation,” and as to such right not being attachable and not being property, are not only dicta, but are in conflict with the decision, for as before shown if the non-resident-partners interest was not attachable, plaintiff was damaged not only to the extent of one-third, but to the full value of the property, and he, having appealed, should have been awarded a new trial in order to give him an opportunity of proving damage. 2. Said proposition is also in conflict with that portion of the , opinion on page 125, holding that whatever may be the state of the partnership accounts, whatever may be the state of the firm as to solvency, each partner has a property and interest in the partnership assets, coequal to his share in the firm ; and also on page 128, holding that the plaintiff buying the goods subject to the attachment on the shares of the two partners, his right, therefore, was subordinate to that of the sheriff. Plaintiffs submit, that, if the non-resident partners had but the “right of appropriation, which right is not property, being only an incident and not attachable,” then the plaintiff Berry did not buy the goods subject to any lien thereon, by virtue of the levy under the attachment, and that his rights were not only prior to those of the sheriff, but that the sheriff himself was technically a trespasser, there being no “property” that he could levy on by virtue of the attachment. 3. Plaintiffs insist that as matter of law so much of said opinion as speaks of the interest of a partner in partnership effects as a “right of appropriation,” as a “mere incident of the partnership,” as “not being property in any sense of the word,” is unsound and in conflict with the well settled law of this State, partners being seized per mi et per tout, and without further amplifying this point, refer to the authorities cited under the third point.
    V. Plaintiffs claim that by virtue of the attachment they acquired a lien on the interest of John Winans in the stock in the trade belonging to the firm of John Winans & Co. That said interest was at least one-half the value thereof. That plaintiffs are fully protected by the stipulation made by the assignee. That said assignee holds the proceeds realized from the sale of said stock subject to the rights of plaintiffs herein, and that the claim of the plaintiffs should be satisfied therefrom.

      John L. Lindsay, of counsel, for respondent, urged:
    I. The interest of Winans alone in the firm assets was attached, and only his individual interest could be attached; his interest was what was left over after the firm’s debts were paid (Berry v. Kelly, 4 Rob. 113 ; Smith v. Orser, 42 N. Y. 132; Goll v. Hunton, 8 Abb. Pr. 120). He had no interest liable to attachment; for the debts of the firm at the time of the attachment greatly exceeded the value of the firm’s assets; the debts being $12,000, and the firm assets only $3,000. The general assignment followed the attachment and preceded the judgment. Upon the assignment the firm property became vested ih the assignee, and could not be levied upon under the execution against the property of the debtors. Had the sheriff under the execution sold to a stranger the interest of Winans, the purchaser would be entitled simply to an accounting and to such an amount as Winans would be entitled to after the firm debts were paid (Berry v. Kelly, Smith v. Orser, supra). The judgment should be affirmed.
   By the Court.—Speir, J.

The question presented is, what title or interest superior to that of the assignee, the plain biffs had in the goods sold under the agreement.

It is obvious, that whatever title or interest they had resulted from the levy of the attachment. We must, therefore, see what title or interest that levy gave.

In Berry v. Kelly (4 Rob. 106), it is determined that under an attachment issued under like circumstances, only the right and interest of the partner, against whom it was issued, in the partnership goods could be attached. That right and interest is the surplus remaining after the partnership debts have been paid.

If, under an execution issued by plaintiffs upon a judgment obtained by them in the action in which the attachment issued, the sheriff had sold the right and interest of the partner against whom the attachment issued, in the partnership property (his interest in which was seized under the attachment), then as to the plaintiffs the sum for which such right and interest was sold would represent the value thereof and be applicable on their judgment; but as to the purchaser such sum might well not represent the value of such interest. Its value to the purchaser would depend upon the state of the partnership affairs ; if the firm was insolvent its value would be nothing, and it would increase in value in proportion as the affairs of the firm approached to solvency.

In this case there has been no sale under execution in consequence of the agreement between the plaintiffs and the assignee of the firm. The substantial effect of that agreement is to place plaintiffs in the position of purchasers, for a nominal sum, of the right and interest of the partner against whom the attachment issued. It follows that the actual value of that right and interest, as dependent on the condition of the partnership affairs, is the measure of their interest in the goods themselves and in the proceeds thereof arising from the sale by the assignee.

It appeared on the trial, that the firm were largely insolvent, its indebtedness being $12,000, while its total assets were only $3,000.

The interest of the partner against whom the attachment issued in the goods, his interest wherein was wholly valueless, and, in fact, nothing.

No right or interest in the goods was therefore seized under the attachment, and consequently plaintiffs have no interest in and are not entitled to any portion of the goods. It results that the complaint was properly dismissed.

Judgment affirmed, with costs.

Curtis, Ch. J., concurred.


author: By the Court.— Sanford, J. Curtis, Ch. J.

text:
    EMMA K. RITZLER, Plaintiff and Respondent, v. THE WORLD MUTUAL LIFE INSURANCE COMPANY, Defendants and Appellants.
    LIFE INSURANCE.
    Policy.—Application.

      Effect of maldng the latter a part of the contract, and hy the terms of the policy, contracting that the statements in the application are true, and if not true, the policy void, &c.

    If a person, contracting for life insurance make tlie payment of the policy conditional upon the absolute truth of his answers to questions in the application as to whether he has been afflicted, at any time, by any one of a long catalogue of diseases, he must be bound by it, although it may he oftentimes impossible for the applicant to answer correctly.
    The courts cannot set aside the conditions of such a contract, although the insured may have inadvertently erred—By failure of memory or otherwise—in an answer to any one of the numerous questions in the application. Foot v. The Etna Life Ins. Co., 61 N. Y, 577.
    Before Curtis, Ch. J., Sanford and Freedman, JJ.

      Decided May 8, 1877.
    This is an appeal from a judgment entered on a verdict in favor of the plaintiff, and also from an order denying defendant’s motion for a new trial, made on the minutes of the court.
    This action is brought on a policy of life insurance, for $1,500, issued by the defendants on the life of plaintiff’s husband, John A. Ritzier.
    The policy, upon its face, purports to have been issued “in consideration of the representations, declarations áhd covenants contained in the application therefor, to which reference is here made, as a part of this contract,” and upon the express condition and agreement, ‘‘ that the statements and declarations made in the application therefor, and on the faith of which it is issued, are in all respects true, without the suppression of any facts relating to the health or circumstances of the insured, affecting the interests of the company; ” and that, “in case of the infringement of any of the foregoing conditions, . . . this policy shall become null, void and of no effect.”
    The application, refered to in the policy,, was subscribed by the plaintiff’s husband, in her name and on her behalf, as well as by himself, individually. It contains an agreement that “this declaration and the above proposal shall be the basis of the contract” between the parties, and “that, if any fraudulent or untrue
      allegation be contained therein, or in the proposal,” the policy shall be void.
    The application contains certain “ questions to be answered by the person whose life is proposed to be insured,—and which form the basis of the contract.”
    Among them are the following, with a negative answer appended to each.
    “ Qu. 12. Has the party ever had any of the following diseases : ”—(Here follows a numerous list, including, among others, “rheumatism”)—“or any serious disease?” Ans. “Ho.”
    If the party has had one or more of these diseases, please state particularly, which, when, how severe, and whether fully recovered, and answer, no, to all the rest. Ans. “Ho.”
    “Qu. 13. Has the party had inflammatory rheumatism, if so, when and how often?” Ans. “Ho.”
    Upon the trial, it appeared in evidence that, in or near the year 1860, Ritzier was sick, for four or five weeks, with acute, febrile or inflammatory rheumatism, or rheumatism of the joints, and was attended during that period, for that disease, by Dr. Bernhardt Segnitz, then his family physician.
    The court submitted to the jury the question whether the deceased ever had rheumatism, as testified to by Dr. Segnitz; but charged, in substance, that if, under the circumstances of the case, the jury was satisfied that Ritzier did not remember having had rheumatism, when he signed the application,—and therein denied having had it,—if the fadt that he had had it, was not then in his mind,—and he gave the answer truthfully and in good faith, the plaintiff would be entitled to their verdict.
    He further charged, in substance, that if the jury found that Ritzier had had rheumatism, the burden of proof was upon the plaintiff to satisfy them that he made the answer in good faith, and that unless it was proved that he made the answer in good faith, they must find for the defendant.
    He further charged, in substance, that no misunderstanding of the question, on Ritzier’s part, would avoid the defense, “unless you are satisfied that he did not recollect the fact of having the disease.”
    The question whether or not he did recollect, having had it, was submitted, with the intimation that the plaintiff was entitled to recover, even if, through forgetfulness, the question was answered untruly.
    The court refused to charge :—
    (1.) That “ the truth of the statements in the application, which were in express terms made the basis of the policy, was a condition precedent to the validity of the policy.”
    (2.) That, if the insured, John A. Ritzier, had had an attack of rheumatism prior to his application for insurance, the plaintiff cannot recover.
    (3.) That where the application provides that its statements shall be the basis of the contract, that any untrue or fraudulent answers shah avoid the policy, and the policy makes the application part and parcel of itself, and further, that if, in any respect, untrue or fraudulent, it shall avoid the policy, that the two papers must be construed as one.
    (4.) That, whether or not the representations were material, the parties have made them so, and whether innocently made or not, if untrue, they avoid the policy.
    Exception was duly taken by the defendants to each and all of the several rulings above set forth.
    The jury rendered a verdict in favor of the plaintiff for the amount claimed.
    The defendant’s motion on the minutes, for a new trial, was thereupon denied.
    Judgment was entered upon the verdict, and appeals were taken both from the judgment and from the order denying the motion.

      W. P. Prentice, for appellant.

      J. H. V. Arnold, for respondent.
   By the Court.— Sanford, J.

J.— By the express terms of the policy of life insurance upon which this action is brought, the “application” therefor constitutes an essential element in the contract between the parties. The application provides that the declarations and proposals therein expressed shall be the basis of the contract; and the policy recites the declarations, representations and covenants of the application, as the consideration for the promises which it contains. The covenants in the application are, by the express language of the policy, made binding upon the parties, and the policy is, on its face, issued and accepted upon condition that the statements and declarations of the application are, in all ’ respects, true. The two papers are concurrent in date and tenor : they relate to the same subject matter; each has express reference to the other; both are essential to a complete understanding of the purpose and intent which the parties had in view. Under these circumstances, the two instruments are to be regarded as one, and the same construction is to be given to their various provisions, as if they had been all embraced within the scope of a single document subscribed by both the parties. But there is no substantial discrepancy in the language of the two .instruments. By the terms of each, the validity of the contract of insurance is made to depend expressly upon the substantial truth of certain statements. The application provides that, if any fraudulent or untrue allegation be contained therein, the policy shall be void.

The policy specifies, as one of the conditions upon which it is made and accepted, that the statements and declarations of the application are, in all respects, true. It also provides, that an infringement of any of its conditions shall render it null, void and of no effect. Such being the agreement between the parties, there would seem to be no room for discussion as to the materiality of the statements which form the basis of the contract, or as to whether or not they were made in good faith, or with intent to deceive. By making certain statements the basis of their contract, and declaring that its. validity shall depend upon the truth thereof, the parties stipulate that, for the purposes of the contract, such statements shall be material and that their truth shall be an essential prerequisite to liability thereon, irrespective of the motives or intentions of the party insured. When the validity of the contract of insurance depends, by its terms, upon the truth of a statement, it is wholly unimportant whether the statement is material to the risk or not; and the question whether th'e party making it erred innocently or otherwise, is not to be considered. This position was, in effect, conceded upon the argument; but it was urged that the peculiar language of this policy, with respect to the suppression of material facts affecting the interests of the company, operated to qualify and restrict the provision by which the validity of the contract was made conditional upon the truth of the express statements contained in the application. It is true that the policy provides not only that the positive statements and representations of the insured shall be, in all respects true,—but also that there shall be no suppression of facts relating to the health or circumstances of the. assured and affecting the interests of the company. The condition is, that such statements are in all respects true, without the suppression of material facts not specifically inquired about. In order to vitiate the policy, a sivppressio veri in regard to a matter not specifically inquired about, must be material and affect the risk ; but it by no means follows that a suggestio falsi, involved in a positive declaration made in response to a specific inquiry, must in like manner be of like character, in order to produce the like result. The contract is otherwise. The two provisions are distinct. That with respect to a suppression is intended to be cumulative rather than restrictive. It was inserted ex abundanti cautela, and in order to provide for a case, not previously reached or covered. There might well be a sup-' pression of facts affecting the risk, notwithstanding the literal truth of every response to the several inquiries addressed to the applicant. It was, therefore, important to provide that a suppression of material facts, not specifically inquired about, should work the same results as express statements nob in all respects true. Hence the condition is to be interpreted not only as forbidding all falsehood, but as exacting the disclosure of truth, in so far as such disclosure may be material.

The supplemental clause enlarges, rather than impairs, the obligations intended to be imposed, and probes the conscience of the applicant by enjoining an honest frankness as well as by prohibiting mendacity.

It was urged that no case could be found in which a policy containing this qualification had been construed as importing a warranty of the truth of representations therein contained irrespective of the question of their materiality and good faith. But, it was said in Jeffries v. Life Ins. Co. (22 Wall. 47), that where the stipulation is not expressed to be made as to important or material statements only, the statements need not come up to the degree of warranties; that they need not be representations even, if the idea of an affirmation having any technical character is conveyed by that term. The whole question depends upon the agreement of the parties. And where they have distinctly agreed, their contracts must be performed and enforced. In the case last cited, the language of the policy was precisely identical with that now under consideration, and while it was observed that many cases might be found which held that false answers to inquiries not relating to the risk would not necessarily avoid the policy, unless they influenced the mind of the' company, and that them materiality was a question for the jury, yet the court said, “ we know of no respectable authority which so holds, where it' is expressly covenanted as a condition of liability 'that the statements and declarations made in the application are true, and when the truth of such statements forms the basis of the contract.” The same principle was recognized and afiirmed in Fitch v. American Popular Life Ins. Co. (59 N. Y. 566), although in that case the policy was construed to import no more than an assurance that the 'statements in • question were made honestly and in good faith, and were believed by the applicant to be correct and true. Stress was laid upon peculiar language tending to show that the true construction of the papers was that the policy should be void only in case of intentional and fraudulent misrepresentation or suppression of facts by the applicant, and particularly upon the terms of a printed “notice to policy holders,” attached to the policy, which stated in terms that “ payment would he contested only in case of fraud.” The more recent case of Foot v. Ætna Life Ins. Co. (61 N. Y. 571), holds that statements, which in terms are declared to be “ part and parcel of a policy,” are warranties, and must be substantially true, of the policy will be void. That where the validity .of the policy is made to depend upon the truth, as well as upon the honesty and good faith of such statements, either falsity or fraud will vitiate it, and that it is not essential to this result that both these elements should concur; or, in case of an untrue statement, that it should be knowingly or intentionally, and mala fide, made.

This authoritative exposition shows that the charge of the judge, and Ms refusals to charge as requested, were erroneous, and require the reversal of the judgment and order appealed from.

They are reversed accordingly, and a new trial is granted, with costs to appellants, to abide the event.

Freedman, J., concurred.

Curtis, Ch. J.

If persons make the payments of policies upon their lives conditioned on the correctness of their answers as to whether they have at any time had one or more of a long catalogue of diseases, and which it is oftentimes impossible in the nature of things for any one to answer correctly, they must be bound by it. The courts cannot set aside the conditions of this class of contracts when persons choose inconsiderately or ignorantly to enter into them and agree to make them obligatory.

It is a hardship for parties to pay for years, money from their earnings to secure a provision for their families, which may not only be defeated, but also absorb in a fruitless suit what little else they leave, in case the insurance company outlasts the insured, and can show that he has had at any period of Ms life some illness, the name of which he never knew, or has forgotten, and has thus inadvertently erred in an answer to one of the numerous questions contained in the application.

In the present case, the insured appears to have been an industrious German barber, whose wife insured Ms life for $1,500. The defendant claims that there was a breach of warranty in the contract by Ms having incorrectly stated in the application that he had not had rheumatism. A German physician testified that some thirteen years previous to this application for insurance, he had treated him for rheumatism. TMs testimony is not very satisfactory and is unsustained by any books or memoranda, while it is controverted by his wife, the plaintiff, who had been married to and lived with him for twenty-one years, by his son, and by another witness. It was sufficient, however, to raise a question of fact for the jury, and they could very properly have found upon it in the defendant’s favor.

The judge charged, in substance, that this defense would be avoided, if the jury found that at the time of making the application the insured did not remember that he had had the rheumatism, or made the answer in good faith. This instruction to the jury is at variance with the doctrine recently held in the similar case of Foot v. Ætna Life Ins. Co. (61 N. Y. 577), and as it is, perhaps, possible that the jury may have been misled by this language of the judge, I must concur in the reversal of the judgment and order appealed from, and the granting of a new trial.


author: By the Court.—Sanford, J.

text:
    CARTER, et al, Plaintiffs and Respondents, v. DANIEL YOUNGS, Defendant and Appellant.
    LIFE ESTATE IN LANDS.
    Life tenant, having a freehold estate in lands.—Lessee for life on a nominal rent.
    In regard to the payment of taxes and interest on incumbrances, and for necessary repairs, no distinction can be made; each is alike bound in this respect.
    In this case, the plaintiffs leased and demised to defendant certain lands and tenements for the term of his (defendant’s) natural life, at the annual rent of one dollar, with power to sub-let any part, or all of the same, and to collect the rents during the term. The lease contained no other covenants or conditions, and no re-entry clause.

      Held, that the defendant was bound to keep down the taxes, and keep the premises in repair, and an order appointing a receiver to collect the rents and apply the same to the payment of accrued taxes and necessary repairs, was affirmed.
    The obligation of the life tenant does not rest in covenant, express or implied, but in equity, and exists as an incident to the estate; when, therefore, one contracts for a life-estate, he must be supposed to contract with reference to the incidents thereunto attached.
    The reservation of rent does not change the nature of the estate, nor create an equity in favor of the tenant for life, paramount to that of the reversioner or remainder-man.
    If there be any presumption from such reservation, it is that the amount of rent was fixed with reference to the obligations incident to a life estate, and not superseding or changing them. The tenant for life acquires an estate of freehold by virtue of the term, and irrespective of the manner or form in or by which it was created, whether by grant, devise, gift, or purchase, or by operation of law; and a charge upon the estate by way of rent, annuity or otherwise does not affect the nature of the estate.

    Before Curtis, Ch. J., Sanford and Freedman, JJ.

      Decided May 8, 1877.
    Appeal from an order appointing a receiver of the rents and profits of real estate, pendente lite.

    The plaintiffs leased and demised to the defendant, Daniel S. Youngs, certain lands and premises described in the complaint, for the term of his natural life, at the annual rent of one dollar, with power to sub-let any and all of the buildings thereon, and to collect the rents therefor, during the said term. The lease contained no covenants or conditions, and no re-entry clause.
    The complaint avers that the defendant has permitted the taxes upon the said premises to accumulate and remain unpaid, and has also omitted to pay the interest upon a mortgage to which the said premises are subject; that said interest and taxes are rapidly accumulating; and that, unless provision is made for the payment thereof, out of the rents, the amount in arrear will soon equal the value of the property.
    Upon the complaint, duly verified, and supported by an affidavit of one of the plaintiffs, an order was granted requiring the defendant to show cause why a receiver should not be appointed.
    On the hearing, affidavits were read in opposition, from which it appeared that the defendant had made certain payments, both of principal and interest, on account of the mortgage mentioned in the complaint, but it was undisputed that the taxes from the date of the demise, in 1873, to the present time, had been allowed to remain unpaid and in arrear.
    An order was thereupon made appointing a receiver, with power to collect the rents, pendente lite. The order provided that the defendant should be permitted to occupy a house situated upon part of the premises, free of rent, and that the receiver should pay him out of the rents $200 per month for his support; but that the residue of the accruing rents should be applied by the receiver to the payment of the accrued taxes and necessary repairs.
    Prom this order, the present appeal is taken.

      Luther R. Marsh, for appellant.

      George W. Lord, for respondent.
   By the Court.—Sanford, J.

The general equitable principle which apportions the charges upon real estate ratably, between owners entitled in possession, and as reversioners or remainder-men, is not disputed. It is, however, contended that the principle is inapplicable in the case of a lease whereby rent is reserved. A distinction is attempted to be drawn between a life tenant, having a freehold estate, and a mere lessee for life, on rent, who, it is said, has no part of the ownership, but simply 'a right of possession. It is urged that the reason why a tenant for life should keep down the taxes and interest on incumbrances, is, that in equity, every part of the ownership of real estate should bear a ratable proportion of the incumbrances thereon; but that where parties contract for the use of land, for a longer or shorter period, for a certain or uncertain term, for years or for life, and fix for themselves the terms and conditions upon which the land is demised, this equitable doctrine is inapplicable and should not be invoked.

Such a distinction is not well founded, and cannot be maintained. The obligation of the life tenant does not rest in covenant, express or implied, but in equity, and exists as an incident to the estate. When, therefore, one contracts for a life estate, he must be supposed to contract with reference to the incidents thereto attached. The reservation of rent does not change the nature of the estate, nor create an equity in favor of the tenant for life paramount to that of the reversioner or remainder-man. If there be any presumption from such reservation, it is that the amount of rent is fixed with reference to the obligations incident to the estate, not as superseding them. A tenant for life acquires an estate of freehold, by virtue of the term, irrespective of the manner in which that estate is created, whether by operation of law, by grant, demise, gift or purchase; and a charge upon the estate, whether by way of rent, annuity or otherwise, does not affect the nature of the estate. In the present case, there is nothing in the language of the demise from which it can be inferred that any other or different rule should apply than that ordinarily incident to estates for life, however created. If it be conceded that the defendant would have been subjected to an equitable liability in favor of the plaintiffs or their grantees of the reversion, to keep down the taxes during his term, but for the words “at the annual rent of one dollar,” inserted in the habendum clause, it is difficult to perceive upon what ground the mere reservation of that nominal sum, by way of annual rental, without covenant or condition, can be deemed to cancel or discharge that liability, or merge it, as it were, in a paramount obligation. The inference that such rent was intended to represent the fair annual value of the land, and to constitute an adequate compensation for its use, free of all other charges or incumbrances, so as to shift the burden of such charges from the lessee for life to the remainder-man or reversioner, is warranted neither by the language of the instrument nor by the circumstances of the case.

If these views are correct, the order appointing a receiver was authorized, and should be affirmed (Carnes v. Chaubert, 3 Edw. Ch. 312).

Order appealed from affirmed with costs.

Curtis, Ch. J., and Freedman, J., concurred.


author: By the Court. —Sanford, J.

text:
    FRANCIS C. CORMIER, Plaintiff and Respondent, v. WILLIAM BATTY, Defendant and Appellant.
    FORMER ADJUDICATION.
    The argument of this appeal was upon the rulings of the court below upon a second trial ordered by the general term. The court held that such rulings were in accordance with the views expressed by the general term on the former appeal, and therefore affirm the judgment, in a brief review of and opinion on the case. See Cormier v. Batty, 41 W. T. Superior Court Seports, 70, for full head-notes and points of counsel.
    Before Sanford and Freedman, JJ.

      Decided May 8, 1877.
    Appeal by defendant from a judgment for $4,495.49 entered on a verdict in favor of plaintiffs.
    The action was brought to recover damages for the wrongful conversion of a quantity of red cedar logs and cedar bolts. A general denial of the allegations of the complaint constituted the issue.
    The facts are stated in the report of an appeal from a judgment in favor of the defendant entered on a verdict rendered by direction of the court at a former trial (Cormier v. Batty, 41 N. Y. Super. Ct. 70). That judgment having been reversed, a second trial was had, which resulted in a verdict for the plaintiffs. From the judgment entered thereon, the defendant now appeals.

      On the second trial, the record of a judgment rendered by the supreme court, in a suit to which the present plaintiffs and defendant were parties, and in which was litigated the question of their respective claims to the property now in controversy, was offered and admitted in evidence on behalf of the plaintiffs, under defendant’s exception.
    The defendant also offered to show that the property in controversy passed into the possession of a receiver, appointed at the instance of the plaintiffs, in the said, action in the supreme court, and was afterward surrendered to the defendant pursuant to an order made therein, on his executing a bond as thereby required. This evidence was rejected as immaterial and irrelevant, the defendant excepting.
    Exceptions taken to the charge were not urged upon the argument.

      John E. Parsons, for appellant.

      T. H. Rodman, Jr., for respondent.
   By the Court. —Sanford, J.

The only points made by counsel for the defendant and appellant upon the argument of this appeal, relate to rulings of the court below, in admitting or excluding evidence. Such rulings appear to be in accordance with the views expressed by the general term, on the former appeal. It is urged that the record of a judgment rendered by the supreme court, in a suit to which the plaintiffs and defendants in this action were parties, and in which were litigated their respective claims to the ownership of the property now in controversy, was erroneously received in evidence. It appears from. such record that the defendant claimed title to such property as against the plaintiffs, by virtue of an alleged sale and transfer thereof to him by a copartnership firm of which the plaintiffs were members. Such alleged transfer was held to be fraudulent and void as against the plaintiffs, and there was an express finding that the plaintiffs had never parted with their title to such property or with their right to the possession thereof.' As a former adjudication, the record was competent proof of the plaintiff’s ownership, and tended to show a tortious taking by the defendant. It was not only competent but conclusive, and the defendant was not at liberty to contradict it by showing that he purchased the property innocently.

That the property in question was temporarily withdrawn from the defendant’s possession, pending the suit in the supreme court, by a receiver appointed therein at the plaintiff’s instance, does not affect the question of defendant’s liability or mitigate the damages recoverable against him. The possession of the receiver was the possession of the court, not of the plaintiffs. The receiver was the agent of the court. He represented both the parties, and protected the interests of both. It was wholly immaterial whether the plaintiffs were privy to his action in securing the safe custody of the property, or assisted him in effecting its removal and deposit in store. There is no pretense that the defendant ever withdrew his claims or surrendered the property. On the contrary, he offered to prove that its possession was surrendered to him by the supreme court, on his complying with certain terms, imposed by that court as the condition of such surrender. The only interruption to his possession which the excluded testimony tends to establish, was an interruption by that court, which in no respect tended to indemnify the plaintiffs or lessen the damages to which the defendant’s wrongful action subjected them.

The judgment should be affirmed, with costs.

Freedman, J., concurred.