text:
    Harriet Merguelle, administratrix, &c. plaintiff, vs. The Continental Bank Note Company of the city of New York, defendants.
    1. An affidavit on which a motion for a discovery of books and papers is made, which merely alleges that there are in the possession of the defendants various letters, receipts and accounts, in the handwriting of the moving party, “ containing evidence in relation to the subject of the action,” and “ to the merits of the action ” is not sufficient to ehable the court to pass upon the question whether the contents of such books and documents are at all material as evidence in regard to any issue in the action. The plaintiff is not entitled to the inspection of all of such books, merely to obtain information how, or in reference to what matters, to get other evidence.

      1. Nor is it sufficient that such books may possibly furnish such evidence. The documents must be set forth with sufficient precision to enable the court to determine for itself, whether they ought to be produced, as containing material evidence.

      3. The mere death of a party can give Ms representative no superior right, in respect to a discovery of books and papers, to that which he would have had if living.
    4. A plaintiff suing as administratrix is however, it seeins, entitled to copies of any accounts rendered by her intestate as agent, and to sworn-copies of any entries made by the defendants in their books to his credit. Other papers must be obtained by subpoena duces tecum.

    (Before Robertson, Ch. J. at special term,
    March —, 1868.)
    Motion for a discovery of books and papers.

      H. S. Bonnet, for the plaintiff and motion.

      H. H. Stewart, for the defendant, contra.
   Robertson, Ch. J.

This is an application by the plaintiff for a discovery of books and papers in the custody of the defendants. The action is for the services of a deceased intestate (James Merguelle) of whose estate the plaintiff is administrator, as agent in procuring orders for work by the defendants. -A bill of particulars has been demanded of the plaintiff and she desires to'amend her complaint. The books and papers applied for are, copies of letters to the deceased from the defendants, a record kept by them of his'expenses, his drafts, orders, receipts and letters,' and the accounts with him kept by the defendants. The affidavit on which the motion is made, states only that there are in the possession of the defendants various letters, receipts and accounts in the handw’riting of the deceased, “ containing evidence in relation to the subject of the action” and “to the merits of the action.” This allegation is not enough to enable the court to determine that the contents of such books and docúments are at all material as evidence in regard to any thing in issue in the action. And the plaintiff is not entitled to the inspection of all of them to obtain mere information how, of in reference to what, to get evidence, (Woods v. DeFiganiere, 1 Rob. 681. Morrison v. Sturges, 26 How. 177.) Nor is it sufficient that such books may possibly furnish such evidence. The documents are not set forth "with any precision to enable the court to order them to be produced. (Jackling v. Edmonds, 3 E. D. Smith, 539. Low v. Graydon, 14 Abb. 443. Mora v. McCredy, 2 Bosw. 669.) The death of the intestate cannot give his representative superior rights to what he would have had if living. The plaintiff is, however, probably entitled to copies of any accounts rendered by her intestate as agent. (Smith v. Winter, 3 M. & W. 309. Pritchett v. Smart, 7 C. B. 625,) and to copies of any entries made by the defendants in their books to his credit. (Brevoort v. Warner, 8 How. Pr. 321.) Any other papers must be obtained by a subpoena duces tecum. (Id.) I cannot see how a knowledge of what the defendants have paid upon orders or for the expenses of the intestate can aid the plaintiff in making out his charges against them. The order must be confined to sworn copies of the accounts and entries before mentioned, to be given as the expense of the plaintiff.


source: Caselaw Access Project

license: Public Domain

text:
    Michael Duffy, plaintiff vs. John (Casey, defendant.
    1. It is improper for a receiver to pay over moneys, to any one, without the order of the court. No one' but the court has a right to decide to whom moneys received by him belong, or are payable. Counsel cannot determine that matter to their own satisfaction, and compel a receiver to pay them the moneys to which they think themselves entitled, under penalty of removal.
    2. Hpon proper application, notice to the parties, and proof, the court will award money in the hands of a receiver to the party entitled. But until the receiver has accounted for the receipt and disbursement of moneys by him, no order can be made for the distribution of it.
    (Before Robertson, Ch. J. at special term,
    March 30, 1868)

      J. Sheehan, for the motion and plaintiff.

      R. D. Livingston, receiver, in person, opposed.


author: Robertson, Ch. J.

text:
    Lucius F. Rolfe, plaintiff, vs. C. M. Delmar, defendant.
    1. The distribution of prizes by chance constitutes a lottery.
    2. An employment to sell tickets in a foreign lottery is illegal, under the ■statute, (1 M. S. 666, § 36,) and no action can arise out of it.
    3. Even money advanced to an agent, by the managers of a 'lottery, to forward the sale of tickets by him, in this state, cannot be recovered back.
    (Before Robertson, Ch. J. at special term.)
    Heard March—, 1868;
    decided April—, 1868.
    Motion to vacate an order of arrest.

      J. F. Miller, for the defendant and motion,

      W. W. Badger, for the plaintiff, opposed.
   Robertson, Ch. J.

The fact of the receipt of the money sued for, by the defendant in a fiduciary capacity* clearly appears by the affidavits, but the defendant sets up that the same was received for tickets sold in this city in a lottery to be drawn in Washington. A statute of this state (1 R. S. 666, § 36) provides that every.“person within this state who shall * sell * to any person, any ticket or part or share of a ticket, or any * instrument purporting to be a * share of a ticket of any such lottery * not expressly authorized by law,” shall be guilty of a misdemeanor. This is held to extend to. foreign lotteries, (People v. Sturdevant, 23 Wend. 418; Charles v. People, 1 N. Y. Rep. 180,) and to the delivery of prizes not pecuniary, (Governors of Almshouse v. Am. Art Union, 7 N. Y. Rep. 228.) The defendant’s employment was therefore illegal, and no action can arise out of it. DeGroot v. Van Buzer, 20 Wend. 390.) It is true that the affidavits on the part of the plaintiffs show that the lottery authorized by law in the District of Columbia was for a noble purpose, connected with, a public entertainment, sanctioned by private persons and public officers of the highest position and respectability, favored by officials, and exempt from taxation, but they do not show that prizes were not distributed by chance; on the contrary they admit it in fact. Although the plaintiff* denies that it was a lottery, he is evidently mistaken, as the distribution of prizes by chance establishes the contrary.

As this is new matter set up by way of avoidance, it is incumbent on the plaintiff to make out a case to be submitted to a jury on the point, which he has not done. The sum of $250 advanced by the managing committee of the entertainment, appears to have been advanced also to forward the sale of tickets by the defendant, and must share the fate of their proceeds.

The order of arrest must be vacated, with $7 costs.


author: By the Court, Robertson, Ch. J.

text:
    Joseph N. Collins, plaintiff and respondent, vs. Frederick W. Coggill, defendant and appellant.
    1. Separate allegations or part of a defense cannot be stricken out as sham or false. Nor can a whole defense be stricken out as irrelevant or redundant.
    2. A motion for judgment may be made upon an irrelevant defense if it stands alone, or it may be demurred to, or disregarded on the trial, if there are other defenses.
    3. If a defense be relevant, irrelevant or repetitious matter in it may be struck out, but only in such manner as to leave the defense to remain in substance, after striking out such matter.
    4. Separate allegations in a defense will not be stricken out as false and sham or irrelevant or redundant, when the parts left will consist of allegations which, standing alone, will be unintelligible.
    6. Where an answer or defense contains several allegations constituting an entire defense, the whole should be struck out, or none.
    (Before Robertson, Ch. J., and Monell and McCunn, JJ.)
    Heard December 9, 1867;
    decided May 3, 1868.

      This was an appeal from an order striking out portions of two defenses, (first and second,) and the whole of two others (fourth and fifth) in the answer as false, sham, irrelevant and redundant, and requiring one defense therein (the third) to be made more definite and certain. The action was brought against the defendant as a stockholder in a company, (the European Petroleum,) organized as a mining corporation under the statutes of this state which authorize the formation of corporations for such purposes, in order to render him liable to the extent of the par value of his stock, for a debt claimed to be due by such, company to Messrs. (Leonard B.) Lindsley and (Isaac B.) Cotterell, and assigned to the plaintiff! Upon that debt judgment had been obtained, and an execution issued thereon had been returned unsatisfied.
    The complaint set forth the organization of such company under the statutes before mentioned; the amount of its capital stock ($100,000;) its division into a certain number of shares (10,000) of a certain par value each ($10 j) and that the defendant held stock therein' on the 10th of June, 1865, to the amount of one hundred shares, (at the par value, worth $1000.) It alleged that on that day that company made thirteen promissory notes bearing date of the same day, payable to the order of a Mr. (L. E.) Lahens, promising by six of them to pay, in the aggregate, at the end of a certain period (sixty days) from their date, a certain sum, ($9163.40,) and by the remaining seven to pay, in the aggregate, at the end of a certain longer period (ninety days) from their date, a certain other sum, ($9187.90,) and delivered them to Lahens, who, for a valuable consideration, and before maturity, indorsed and delivered them to Lindsley & Cotterell. It also alleged that such company renewed sucb notes by giving to the payee (Lahens) thirteen new notes, bearing date subsequently, (August 12, 1865,) payable in the sapae manner, six for the like aggegate amount as the first sixty days notes, at the end of a similar period, and seven for the like aggregate amount as the first ninety days notes, at the end of a similar period ; and that such payee indorsed and delivered the same to Lindsley & Cotterell in lieu of such first notes. It further alleged that Lindsley & Cotterell subsequently (January 22, 1867,) recovered judgment upon such last mentioned notes, in the Supreme Court of this state, against such company, upon which an execution was subsequently issued and returned unsatisfied, in March, 1867.
    The defendant "set up five separate defenses in his answer. In the first he denied his being, on the 10th of June, 1865, or at1 any other time, a stockholder in the company mentioned in the complaint to any amount of shares; but averred that on a prior day to that date, (December 17,1864,) he was induced to subscribe for, and agree to purchase a certain number (100) shares of the stock of such company formed previously thereto (in which Lindsley & Cotterell had already become stockholders to a larger amount (2000) of shares, and had ever since continued so to be,) by certain representations “made on behalf of such corporation.” These representations were, that there were to be only a certain number (10,000) shares of stock, of a certain par value ($10) each. That all of them would, at or about the time of such subscription, be paid for in full at their par value, and the whole amount realized, (viz. $100,000,) be used and, applied in working and developing certain oil lands represented, also, to be under the control of such company; that such subscription should be void if all such shares were not so paid for at or about that time; that said corporation had purchased certain land, leasehold property and effects, (in the state of Pennsylvania;) and that parts of such lands had produced certain- quantities of oil; that one of their wells on a certain parcel of such land, had produced a certain number of (from 15 to 20) barrels of it daily; that one of other three wells on another parcel had produced a certain larger number (from 30 to 40 barrels) daily; another, a certain other number (20) of barrels; and the last had yielded some. Such first' defense then alleged that all of such representations were false and fraudulently made, to induce the defendant to subscribe for such stock, and that without them he would not have subscribed for the same. It also averred that $100,000 was not obtained from the sale of such stock or applied to working such oil lands; that the defendant did not know that such representations were false and-fraudulent, until after he had paid such company a certain sum ($500) on account of his.subscription; that in consequence of the failure to obtain such sum ($100,000) and apply it as before mentioned, such stock became worthless, and the defendant, in consequence of the falsity and fraud of such representations, offered to surrender up his certificates of stock issued to him on the return of such sum paid by him. Such defense admitted that one half of the capital stock had not been paid in, but took issue upon the indorsement and delivery of the notes of June, 1865, mentioned in the complaint, to Lindsley & Cotterell, the indebtedness of the company to them on the notes mentioned in the complaint, and the assignment of their judgment against the company to the plaintiff.
    The second defense contained in the answer set forth, that Lahens negotiated with Lindsley & Cotterell for the purchase of certain real estate, and leasehold property, (in Pennsylvania,) on behalf of himself and others, including those who, in case of such purchase, should become shareholders in a company to be organized, in whom a title to such property should be vested, and that Lindsley & Cotterell knew of such agency; that to procure such purchase to be made, Lindsley & Cotterell made representations ex'actly similar to those alleged in the first defense to have been made to the defendant, on behalf of such company, to induces him1 to subscribe; and that . Lahens, on a certain day, (November 28, 1864,) relying on such representations, entered into a written contract, under seal, signed by both parties, for the purchase of such property from Lindsley & Cotterell, therein set out verbatim.
    By that agreement, as appeared from its contents, Lindsley & Cotterell sold all the real estate and leasehold property, described in a memorandum annexed thereto, for a certain sum ($50,000) in cash, and a certain other sum ($20,000) in stock of a company,, about to be organized by Lahens to own and use such lands and property.- A certain part ($25,000) of such cash, was to be paid on or before a certain day, (January 15,1865,) at an office in the city of New York, (Guerber & Co.’s.) Upon the title proving satisfactory on examination, the deeds for the property to Lahens being executed and delivered in escrow to a depositary, (H. A. Smythe, Esq.) the specified amount ($20,000) of stock was to be delivered. The residue of such cash, was to be paid in two equal installments at the same place, one in thirty and the other in sixty days from the time of such first payment, or sooner, at the purchaser’s option, when the deeds were to be delivered. -The property was to be conveyed free and clear of any and every incumbrance, by proper deeds and conveyances, with warranty and full covenants, and the possession of it delivered with such deeds. The memorandum annexed to such agreement set forth seven numbered parcels of land and property, whereof the first and second described the property set forth in the first and second defenses of the answer, and contained a statement of the yield of oil from wells on the same, precisely similar to that in such first defense alleged to have been made by the company to the defendant; and, in the second, by Lindsley & Cotterell to Lahens.
    Such second defense, after setting out such contract, alleged that the company mentioned therein, and referred to in the complaint, was organized about a certain time, (December 4th,) in 1864, and that such contract was, on the same day, duly assigned to them, for whom it had originally been made'; that such company, upon the faith that the representations so made by Lindsley & Cotterell to Lahens, acting on behalf of such company, were true, assumed the obligations of such contract, and became the purchasers of the premises therein mentioned, in the, place of Lahens, and, with the privity and assent of Lindsley $• Cotterell, agreed to pay them the purchase money therein mentioned; that prior to a certain date, (June 10th,) in" 1865, such company actually paid, on account of such purchase, to Lindsley & Cotterell a certain sum, ($26,000,) and about that day gave the promissory notes mentioned in the complaint, as "part of the' consideration therefor; that both such notes and their renewals were made upon the belief of the company that such representations of Lindsley & Cotterell, to induce Lahens to enter into such contract, were true; but that they were false.
    Such second defense then proceeded to negative such representations separately, and averred that consequently the property never had in fact been worth $26,500, as Lindsley & Cotterell well knew, and claimed that such notes mentioned in the complaint were without consideration and void, and the company were not indebted to the original payees (Lindsley & Cotterell) in the amount thereof.
    The fourth of such defenses, after reaffirming the alie- • gations in the second, in respect to the consideration of' the notes mentioned in the complaint, averred that the defendant was not a stockholder of the company in question. The fifth of such defenses averred that the judg-" ment mentioned in the complaint had been wholly or partially paid by divers stockholders of such company, who were compromised with or released by the plaintiffs. The third of such defenses alleged, that in 1865, (June 10th,) and at the time of giving the notes mentioned in the complaint, and from the organization of the company in question, Lindsley & Cotterell owned a certain number (§2000) of shares in the capital stock of such company.
    The motion to strike out was made upon the pleadings and an affidavit of the attorney for the plaintiff, (G. C. Genet, Esq.) That affidavit stated that such attorney acted as counsel for Messrs. Lindsley & Cotterell in the matter of the sale of the property in question to Lahens; that by the written order of the latter, and to save the expense of stamps, the conveyances of the property were made directly to the company, to whom he claimed to have sold the property, and (except one, which was deposited with the affiant,) were deposited with the depositary (Mr. Smythe) mentioned in their contract; that none of them were delivered to the ■company until a day in 1865, (June 10th,) when they were so delivered and the notes of the company received from Lahens; that notes of such company to Lindsley & Cotterell were refused, and new notes were made by them to Lahens and indorsed by him ; and that they never dealt with such company, except to receive money from them on Lahens’ contract.
    On the part of the defendant, his own affidavit was read, containing the usual affidavit of merits, an averment of good faith in putting in the answer, an expectation of ability to prove the statements in it, by witnesses, his inability to get the testimony of such witnesses without considerable labor and expense, and his pecuniary ability to pay any claim.
    The order appealed from struck out the fourth and fifth defenses; all of the first except the two admissions contained therein that the defendant had been induced to subscribe for the number of shares of the stock of the company in question mentioned therein, on the day in 1864 therein specified, (December 17th,) and that one half of the stock of such company had not been paid in ; also all of the second defense except an admission that a company, mentioned in some undescribed contract and in the complaint, was duly organized, and that such contract was transferred to them; and an averment that prior to J une 10th, 1865, such company paid to Lindsley & Cotterell on account of some purchase, $26,500, and the denial that such company was on the 31st of January, 1866, indebted to Lindsley & Cotterell in any sum whatever. Such order also required the defendant to make his third defense more definite and certain by setting forth whether the (2000) shares of stock therein mentioned were those which Lahens agreed to give Lindsley & Cotterell for some property (not described) and the time when such stocks was issued. It also charges the defendant with the payment of the costs of the motion.

      E. S. Van Winkle, for the appellant, defendant.

      G. C. Genet, for the respondent, plaintiff.
   By the Court, Robertson, Ch. J.

The order appealed from in this, case not only strikes out two defenses as false and sham, as well as irrelevant and redundant, but also some of the allegations of two other defenses, for the same reasons. Separate allegations or part of a defense cannot be stricken out as sham or false. (Slack v. Cotton, 2 E. D. Smith, 398. Bell v. Ogden, 13 Abb. 93, n.) No such piecemeal mode of trying issues can he tolerated. (Littlejohn v. Greeley, Id. 311.) Hor can a whole defense be stricken out as irrelevant or redundant. Upon an irrelevant defense either a judgment may be moved for, if it stands alone, or it may be demurred to or disregarded on the trial if there are other defenses. If a defense be relevant, irrelevant or repetitious matter in it may be struck out, but in such case the defense must be still left to stand in substance, after striking out such matter as was there before.

The order in question strikes out from the first defense, which is personal to the defendant, every particle of new matter set up as a defense, and leaves therein only two admissions, by which the defendant acknowledges in -one that he subscribed for a certain number of shares of stock of the company against which the plaintiff holds a judgment, at a time before the debt, upon which such judgment was obtained accrued, and in the other that not half of the capital stock was paid in. These admissions undoubtedly do not constitute any part of the original defense, as such, and strictly might have been stricken out as redundant, since the mere omission to deny the allegations to that effect in the complaint would have operated as an admission. Such order also strikes out from the second defense all new matter therein set up as a -defense, and leaves only incoherent and, (standing by themselves,) unintelligible allegations. The first alleges that some undefined contract having been made, a company, referred to in such contract, was on a certain day (December 4, 1864,) duly organized, and is the same as that mentioned in the complaint, and such contract was on that day duly transferred to it; the second, that such company had paid to Lindsley & Cotterell (the original judgment creditors mentioned in the complaint,) on account of such purchase, a certain sum ($26,500;) and the third that such company was not in January, 1866, indebted to said Lindsley & Cotterell in the full amount “ thereof” without stating of what or in any sum whatever.

It is very evident that the admissionsin the first defense, of the defendant’s subscription for stock as originally inserted, was modified by subsequent allegations of fraudulent representations on behalf of the company, by which he was induced so to subscribe, so that it could not have been read at the trial by the plaintiff as a simple admission, but piust have carried with it all such allegations, which the defendant could then have read on his own behalf. He also insisted, that the subscription,' which he admitted, was void, by reason of fraudulent misrepresentations. While even such admission was left as a fragment of a defense, with every thing else struck out which qualified it, the whole defense was not struck out as sham or frivolous. And I am not aware of any principle of law which entitles either party, to have stricken out of an entire defense or pleading, whatever controverts his right, as sham and frivolous, and that part alone left which admits what is necessary to sustain his case. The parts stricken out, were "not so stricken out, for either irrelevancy or redundancy, because nothing was left by which to test either. The order" appealed from was therefore clearly erroneous, for striking out either too much or too little.

Hnder the mode, in which the order appealed from deals with the first defense, I do not think we ought.to express any opinion as to the merits of such defense, as they may come up on a demurrer to it. I am inclined to think the learned justice, who .made the order, labored under the impression, that it was not alleged therein, that the fraudulent representations therein set forth were made by the corporation, whereas it is expressly charged therein, that the representations, at least as to the productiveness of the oil wells therein mentioned, were made by the corporation. It is not necessary to take into view, the other representations, as to the realization of a certain amount of money and the application of it in a certain way; for being merely promissory, they may be disregarded. There is no contradiction of any of such allegations in any affidavit on the part of the plaintiff so as to render the answer sham. If the validity of such defense were fairly before the court, it would be a. serious question, which does not seem yet to be fully settled, how far a stockholder of a company, induced to become so by its fraud, can escape liability to a creditor, in a proceeding directly by such creditor against him. (Bell’s case, 22 Beav. 35. Ex parte Ginger, 5 Ir. Ch. 174. Brockwell’s case, 4 Drew. 205. Nicoll’s case, 5 Jur. N. S. 205. Ayre's case, 25 Beav. 113. Henderson v. Royal Br. Bk. 7 E. & B. 356, E. C. L. 90. Daniel v. The Same, 1 H. & N. 681. Powis v. Harding, 1 C. B. N. S. 533, E. C. L. 87. Howard v. Shaw, 9 Ir. Law Rep. 335.) It had therefore better be left for consideration, on a motion to strike out the whole defense for irrelevancy, or, more properly, on a demurrer, as no court would probably hold that the defense was clearly frivolous.

The defense secondly set up in the answer is one to the" liability of-the company upon the original cause of action, on which the judgment was recovered. The same remarks are applicable to the parts stricken from this, as to those stricken from the first defense. Part of it is left, consisting of allegations unintelligible by themselves, as to a transfer by some unknown purchaser to the company, (involving the payment by them of some money to Lindsley & Cotterell,) and a denial of indebtedness to the latter. This last allegation might stand perhaps as a defense, even unaccompanied by any other allegations, but it was evidently part of an entire defense, and the whole should have been struck out, or none. The affidavit of the plaintiffs’ attorney undoubtedly tends to show, that Lahens was personally the only one with whom Lindsley & Cotterell dealt} but it does not deny that the former, (as alleged in such second defense,) acted in such negotiations with the latter, on behalf of the company, and the contract between such parties for the purchase of land recites, that such company was to own and use such property. The allegations of such second defense are not therefore shown to be false, and the defense itself therefore sham. It is too serious a question, upon which to express any opinion, unless on more full argument, how far, notwithstanding misrepresentations fraudulently made by vendors of land to the agent of a future company, (whose organization is contemplated by both parties, as well as the transfer to them, when organized, of such lands,) when their obligations are subsequently received for its purchase money, the vendors can recover them; particularly where the original contract was not performed, either as to the time fixed thereby for the delivery of deeds or the persons to whom they were to be executed. The settlement of that question had also better be left to the determination of a motion to strike out the whole, or what is ‘more appropriate, a demurrer. I may also remark that the literal terms of the order leave in, the whole of the certificate of the execution of the contract' in the second defense without the .contract itself. I think this part of the order was also erroneous.

The fourth and fifth defenses are against any liability by the defendant for the original cause of action. In the first of them, he denies that he was a stockholder, when the purchase on behalf of such company, mentioned in the second defense, was made. There may possibly be some question, how far the two defenses may be consistent ; that is, if the execution of the deeds to such company in June, 1865, and the delivery of their notes to the assignors of the plaintiff at that time, be looked upon as an execution of the first contract made by the company, for which the defendant is sought to be made liable; because the original contract with' Lahens was not performed according to its terms, in January previous; in such case the defendant should have been only required to elect. As it is, the question also is too serious how far a new contract entered into by a company after the non-performance of or as a substitute'for a previous one, may be considered as binding upon those who have become stockholders in the mean time, to justify striking out such a defense on a motion, as irrelevant. ISTo argument seems to have been presented on the point at special term, and it was but slightly alluded to in the argument before us. The plaintiff’s point, that there is no indebtedness on an executory contract, until it is fulfilled, for which Garrison v. Howe, (17 N. Y. Rep. 465,) is cited as authority, might still be doubted, as that case arose on the interpretation of the twelfth section of the act in regard to the liability of trustees, which uses only the term “ debts,” while the section under which the defendant. is sued, speaks both of debts and contracts. Besides, by the terms of the contract of Lahens, the deeds were only deliverable on the payment of the money, while in Garrison v. Howe, (ubi sup.) the company were not to be liable until the delivery of the lumber. If the action in that case had been for damages for not taking the lumber, instead of for its price, the rule might have been different.

The last defense was objected to, only because it was not a complete bar. I apprehend, that that technicality is done away with, and a partial defense, such as part payment, may always be pleaded. Besides, there is a grave question presented, whether a release by the plaintiff of one of several joint stockholders in a company, is not a • discharge of all.

As to the third defense, it is admitted to be good as it stands, but the defendant is called upon to make it more definite and certain, by an independent allegation, whether the stock owned by the plaintiff’s assignors was given for the lands, the boring and mining of which was the purpose of the company in question. I do not see that that would make it less indefinite or uncertain. What the stock was given for, is an entirely separate fact, not making the quantity or description of stock more definite. If it was such stock, that was a matter to come from the other side by way of rebuttal, or perhaps the defense might have been struck out as sham, on proof of the fact.

On the whole, therefore, I think the plaintiff should have been left to his remedy on demurrer or on the trial, and that none of the defenses were so plainly and palpably sham as to have justified their being stricken out on motion, even if they had been as such. The denial in the first defense of the allegation in the complaint, of the delivery of the company’s notes to Lindsley & Cotterell for a valuable consideration, was not inconsistent with the allegation in the second defense, that such notes were given in payment of the purchase money for the land in question, if it was worthless, as the defendant alleges.

The order in this case must be reversed, without costs to .either party.


text:
    Joseph N. Collins, plaintiff and respondent, vs. Henry Suau, defendant and appellant.
    1. The Code of Procedure only permits sham and irrelevant answers or defenses, to be stricken out. A comter-claim is not a defense, and cannot, therefore,
    . be stricken out on motion.
    2. Where a defendant sets up in his answer,- by way of counter-claim, damages sustained by reason of certain false representations made by the plain-, tiff to the defendant, the truth of such representations should not be tried on affidavits, any more than that of the allegations in a complaint.
    SS. Whether facts set forth in an answer constitute a counter-claim admissible in the action, can only properly be determined on demurrer, or objection on the trial.
    (Before Robertson, Ch. J., and Monell and McCunn, JJ.)
    Heard December 12, 1867;
    decided May —, 1868.

      This was a motion on the part of the plaintiff to strike out certain portions of the defendant’s answer as “ false, sham, irrelevant and redundant.” Also, to show cause why certain other parts should not be stricken out as “ irrelevant,” and, upon an affidavit of the plaintiff’s attorney, why certain words should not be struck out as false and sham. The motion was also to compel the defendant to make his answer more definite and certain as to certain shares of stock alleged to belong to the plaintiff’s assignors.
    The justice below granted the motion, and the defendants appealed.

      F. R. Coudert, for the appellant, defendant.

      G. C. Genet, for the respondent, plaintiff.
   By the Court, Robertson, Ch. J.

The defenses set up in these cases are not in all respects the same, as those set up in the case of the same plaintiff against Coggill, just decided at this present term. The representations of Lindsley & Cotterell charged to be false in the second defenses, are only those contained in the contract for the purchase of the land, and even if the purchase by Lahens was in law a purchase by the company, such representations were not made to the defendants, to induce them to become stockholders, and they could not as such escape liability on the contracts of the company thereby. But they set up a counter-claim therein of damages, by reason of such misrepresentations, the truth of which should not be tried on affidavits, any more than if alleged in a complaint. The Code of Procedure permits only sham and irrelevant answers or defenses, to be stricken out, but a counter-claim is not a defense; (see § 149, subd. 2;) and in this case does not constitute the whole answer. Part of the second defense is left untouched by- the order appealed from; to wit, an allegation of a transfer of some undefined contract,, to the corporation in question mentioned in the complaint. Such defense was therefore not stricken out. as sham or irrelevant; and all the allegations are not redundant, as they are not virtual by repetitions of any other statements contained in the same, defense or counter-claim. Some of the allegations in such defense are clearly irrelevant, (such as the payment of money and delivery by the company to Lindsley & Cotterell of, and suits on, notes by the latter, and the excess of the price paid beyond the. value of the land sold, all of which are at most mere' evidence of injury to the defendant,) and were properly stricken out. "Whether such facts constituted a counterclaim, admissible in'this action against the plaintiffs’ claim, can only properly be determined on demurrer or objection on the trial. The order appealed from must therefore be modified, by confining the direction to strike out to the irrelevant allegations already suggested.

The question, as to the time when the debt of the company accrued, or their contract was made, (whether before or after the defendant became a stockholder^ raised by the fourth defense, is the same as that in the same defense in the action against Coggill, and must be similarly disposed of. It became a matter of fact and law to be determined, when the company first bound themselves to perform the promises, made by Lahens in a contract avowedly for their benefit, even if they bought the land from him.’ The affidavit of the plaintiffs’ attorney did not state that time, but only that the deeds were executed and notes given in June, 1865, and therefore does not disprove the defense.

The same reasoning applies to the third defense, as to the same one in the case against Ooggill, to wit: that it is wholly immaterial what Lindsley & Cotterell gave for their stock, and therefore stating it, does not render a statement of their owning a certain number of shares, more definite or certain. It was a matter more naturally within the plaintiff’s own knowledge, than the defendants’. Prima facie, stockholders are bound to contribute; if they are specially exempted, the ground of their exemptions should come from them.

The order appealed from, except in the particulars before mentioned, must he reversed.


text:
    Emily Fowler Ford, plaintiff, vs. Augustus Belmont, et al. defendants.
    1. A declaration, by the grantor in a deed, of its objects and purposes, contained in a separate instrument, even when not under seal, may operate to alter the character of such deed, however plainly a mere conveyance of the legal estate in the land.
    2. Where instruments simultaneously executed, relating to the same subject matter, are for that reason construed together, the general purpose of the whole, apparent therefrom, will control the strict construction or any apparent purpose of one.
    3. Where by the legal construction of one or more instruments, the sole purpose of one is apparently merely to create a trust, which can only be executed as a power in trust, although such instrument be an absolute conveyance in fee simple of the legal estate, such legal estate remains in the grantor in such instrument, subject to the execution of such power, which is capable of being enforced in equity.

      i. Admissions in an answer in chancery, by a person claiming a legal estate in certain real estate, (of which he was in possession by virtue of a conveyance thereof to him by a prior owner, which was absolute on its face,) of the existence and contents or terms of an instrument under seal, (executed by him •shortly after such conveyance,) which declared certain trusts and conditions respecting the estate held by him, and in derogation thereof, are admissible as evidence of such existence and contents, in an action in partition between parties claiming under such grantee, as a common source of title.
    D. Where the grantor of such premises, before the conveyance by him thereof to such grantee, agreed with a third person, to permit him to sell and dispose thereof, in order tq compromise by that means certain claims due to the United States government by other persons, and to allow such third , person to retain the residue of the money and securities received on such sale, after completing the compromise; and a firm, consisting of the grantee and his brother, agreed with such third person to advance the sum necessary to accomplish the compromise, and thereupon such parties, (consisting of such third person and firm,) entered into a written agreement, whereby it was agreed that such grantor should convey the premises to such grantee, and that such firm should advance the sum necessary for such compromise, to be repaid with interest, (together with a bonus for advancing the same,) out of the proceeds of the property when sold, and that the remainder of such proceeds should be divided, (after satisfying such sums,) into three parts, whereof the grantee’s firm should be entitled to one third, and such third person to two thirds; and after the conveyance by such grantor, to the grantee, executed in pursuance of the agreement, the grantor executed an instrument in writing, setting forth that he held the premises according to the terms of such agreement, which it recited. In an action of partition between parties claiming title under the grantor in such deed,

      Held 1. That if the conveyance to such grantee had been taken without the consent of such third person, but with knowledge of his rights, a resulting trust would have arisen in his favor.
    2. That the legal effect of the absolute conveyance to such grantee, was restricted by the instrument executed by him, declaring the trusts, terms and conditions, on which he took it and held such estate, under the decision in the case of the New Dry Dock Oo. v. ¡Stillman, (30 N. T. Hep. 176.) That such instrument operated not as a covenant, but as a declaration of trust. That the purpose of such deed was, not to vest in such grantee the fee of the two thirds of such premises, (of which such third person was to have the benefit,) leaving in him a mere right of action; but to give to such grantee a power in trust to sell the land and pay two thirds of the proceeds of tho sale to such third person, leaving the legal estate, on which such power was to operate in the original grantor, capable of being divested by its exercise.
    3. No mqre of the legal estate in fee in such land passed to the grantee under the deed to him, than was necessary to enable him to convey enough of the land to pay off the sums charged thereon, and an equity of redemption in an undivided third of the residue. The residue of the legal estate in such land remained in the original grantor.
    4. That the deed to such grantee became, by the accompanying declaration by him of its terms, a mere mortgage to him for the sum advanced and the interest and bonus thereon, and he had only a legal estate in one third, leaving such third person equitably entitled to the benefit of the other two thirds thereof.
    6. That, although as the conveyance to the grantee was taken with the assent of such third person, and, therefore, no resulting trust could arise in favor of the latter, yet it was subject to whatever right he had remaining in or to such land by virtue of the original agreement, not modified by, or merged in, the new agreement.
    6. That, under the original agreement between the grantor and such third person, the latter would have been entitled, on effecting the compromise therein mentioned, to a deed of such premises or a sale of them by such grantor, and the 'payment of the proceeds to himself. Such third person had, therefore, a right to procure a sale of his two thirds interest remaining, (after the sums charged were paid either by the grantor or grantee,) or to a conveyance from the former of the legal estate therein.
    7. If such legal estate in two thirds of the premises in question did not pass to such grantee by such conveyance to him, it remained in the original grantor, and could not he conveyed by such grantee, or pass to his assignee in bankruptcy, so as to defeat the rights of such third person and those claiming under him.
    8. A statement by such grantee in a schedule annexed to his petition in bankruptcy (which alleged that all his property was set out in such schedule) of a claim to only “ one third residuary interest ” in such premises, and a note appended thereto, setting forth that such third person was “ entitled to the remaining two thirds interest arising from any excess after satisfying”
    - the mortgages thereon, (which would in themselves be a good declaration of trust,) are strong evidence of a conveyance to such third person as against persons claiming under such assignee in bankruptcy, after a lapse of seven years between the first declaration in trust by such grantee and his application in bankruptcy.
    9. That a conveyance of such two thirds interest in the land to such third person, might be presumed after a lapse of time, and other attendant circumstances, inconsistent with the non-existence of such conveyance.
    10. Even if such grantee acquired the legal estate in the premises by the deed to him, such third person would have a right to enforce the power of sale at any time, and if the legal estate was vested in such assignee in bankruptcy, and by him conveyed to the plaintiff, the title which would pass by a sale in this action, being in partition, would not be such as this court would compel a purchaser to. take, because it would always be liable to be divested by the exercise of the power in trust to sell for the benefit of such third person or his representatives, and therefore unless they were made parties, the complaint should be dismissed.
    (Tried before Robertson, Ch. J. at special term,
    December 17, 1866;
    decided January 15, 1867.)
    This was an action for the partition of certain land in the city of Hew York, claimed by the plaintiff to be held by her in common with the defendants. The complaint alleged the original ownership in fee of such land by Dun

      bar 8. Dyson, in July, 1842; his application by petition, at that time, to the United States District Court for the southern district of Hew York, to be discharged as a bankrupt, in September of that year; the declaration of him as one»; the delivery of a copy of the decree, so declaring him, by order of the court to the official assignee, (William C. H. Waddell, Esq.) appointed by orders of .both the United States District and Circuit Courts for such district, in January previous, and duly qualified as such; the conveyance by such assignee by deed poll, in his official capacity in August, 1846, of one undivided third-part-of such piece of land in fee simple to G-ordon L. Ford ; the vesting of the title to such third part by virtue of several mesne conveyances in the defendants as trustees for the defendant Mrs. Belmont; and the conveyance by such assignee to the plaintiff, in October, 1860, in fee simple, of two undivided third parts of such premises. The answer claimed, that the defendants were owners in fee as trustees, &c. of the whole of the premises, whereof partition was sought, and denied that the plaintiff was seised in fee as tenant in common with them as alleged in the complaint. It also set up as a defense, that neither the plaintiff" nor her ancestor, predecessor or grantor-was seised or possessed of the premises described in the complaint or any part thereof, within twenty years before the commencement of this action.
    It was admitted on the trial that Alexander M. Bruen, under whom both parties claimed, owned the premises as far back as February, 1833, and that in 1835, he, by his attorney, George W. Bruen, (duly authorized by a power of attorney duly executed in July, 1835, and recorded,) conveyed the same to Dunbar S. Dyson, in fee simple.
    In January, 1842, Mrs. Janet Clarke, (widow of John X. Clarke, deceased,) filed a bill of complaint in the late court of chancery of this state against Robert Dyson, Dunbar 8.

      Dyson, Matthew 8. Clarke, and Anna E. Clarke, his wife, and Virgil Maxcy, as defendants. In which bill such complainant prayed that Dunbar 8. Dyson should be decreed to execute to her a mortgage upon certain land, including the premises m question, for a certain amount, ($25,000,) or, if s'o much had been aliened or incumbered by him as to prevent what remained from being sufficient security for that amount, to execute to her a mortgage for so much money as what remained should be good security for, and to pay the residue to her in cash, and in default thereof that the defendant, Matthew S. Clarke, be decreed to pay the same and be removed from his place as trustee for the complainant.
    The facts upon which such relief was prayed, as set forth in that bill of complaint, were:. That by various acts and instruments, specifically set forth therein, such as the will of the father of the complainant, the marriage settlement and will of her mother, a conveyance by her in trust to the defendant M. S. Clarke, a sale by him of certain lands, (including those embraced in such trust deed,) he became trustee for her of one half of a mortgage on such lands for a certain sum ($50,000;) but that in violation of such trust and in order • to enable Eobert and Dwnbar 8. Dyson, to carry out an agreement by them with the government of • the United States, for compromising the indebtedness of certain other persons, (George and Herman Bruen and John Bloodgood,) in which Matthew S. Clarke was interested, he assigned such mortgage to Eobert Dyson, (with knowledge on the part of the latter, that Clarke held such mortgage as trustee for her,) under an agreement by both the Dysons, to execute a mortgage for the like amount to Clarke, as trustee, upon the property so conveyed by Alexander M. Bruen to Dunbar S. Dyson. That Matthew S. Clarke was interested in the lands so conveyed to D. S. Dyson by virtue of two instruments, copies whereof were annexed to such bill, being, First, a power of attorney and agreement executed by Matthias Bruen and Alexander M. Bruen to him, (Clarke,) dated in May, 1835, authorizing him to compromise, (within one month,) certain claims of the United States government against the persons before mentioned (Gr. and H. Bruen and Bloodgood) and' to sell certain lands, (including the premises in question,) to enable him to carry out any compromise entered into by him, and agreeing that he should have the residue of any money, bonds, notes or obligations received on such sale beyond the sum necessary for such compromise; and, Secondly, an instrument dated and executed in July, 1835, by the two Dysons and Clarke, declaring the terms on which such property conveyed by A. M. Bruen to D. S. Dyson was holden, which terms were as follows: A certain sum ($200,000) was to be paid or secured to be paid to the United States of America, by the Dysons; A certain sum paid as a premium for raising such moneys ($25,000) was “ to be charged on the general fund to be raised out of said lots. Such $200,000 was then to be repaid with proper interest, and the remainder of the money or lots unsold’’was “ to be divided or sold, as the case ” might “be, in theproportion of two thirds to or by Matthew.St. Glair Glarhe, and one third to or by said Robert and Dunbar S. Dyson. Such lots-were also thereby agreed ” to be sold'or disposed of as “might thereafter be agreed upon.”

    The answer of Robert Dyson and Dunbar S.' Dyson, (defendants in such suit in chancery,) to such bill of complaint, admitted the execution of such power of attorney and agreement by Matthias and Alexander M. Bruen, and the agreement between the Dysons and Matthew S. Clarke, whereof copies were annexed to such bill.
    Dunbar S. Dyson, in his petition for his discharge as a bankrupt, dated July 8, 1842, sworn to and signed by him, stated that a certain schedule annexed, (marked. B,) contained “ according to the hest of his knowledge, information and belief an accurate inventory of Ms property, rights, and credits of every name, hind and description, and the location and situation of each and every parcel and portion thereof.” In such schedule is set down “ One third residuary interest in 204 lots in the Seventeenth ward of the city of Hew York as per deed of the same from Alexander M. Bruen, and map thereof duly recorded in the proper office. Reference being had to said map, on which said lots are marked as follows, (see note A at the end of this schedule.”) Then follows an enumeration of such lots and their location, (including those in question,) and also of incumbrances thereon, and such note A, which is as follows: “ Matthew St. Clair Clarke of Washington city, is entitled to the remaining two thirds interest, arising from any excess after satisfying the amount of mortgages on said property, which have been allowed said Clarke in account. The property referred to being 204 lots in the Sixteenth ward of the city of Hew York, herein before mentioned.’"’
    In August, 1846, such official assignee in bankruptcy, (W. C. H.' Waddell, Esq.) pursuant to orders of the proper United States Court, conveyed (for the consideration of one dollar) to Gordon L. Ford in fee, one third of the two hundred and four lots mentioned in such schedule. By several mesne conveyances from Ford and others, professing to convey the whole of such lots, the defendants acquired their title thereto.
    In October, 1860, the same official assignee conveyed to the present plaintiff (for the sum of one dollar) all of the same lots, (subject to his previous conveyance to Gordon L. Ford,) pursuant to an order made by the proper United States Court, authorising a conveyance at private sale for a nominal consideration, and the costs of the assignee and his counsel, but not mentioning the person to whom it was to be conveyed.

      Proof was given on the trial, of the death of hoth the Dysons, and that no instrument signed by them and Matthew S. Clarke, was in possession of the administrator of Robert Dyson; also that Dunbar S. Dyson was unmarried at the time of his death.
    Exceptions were taken by each party on the trial, to the admission of each of the documents and instruments offered by the other, showing the foregoing facts, and particularly to the bill and answer in the suit in chancery before mentioned, but only on the ground that the plaintiff was not bound by them.
    Other matters appear in the opinion of the court.
    J. Townshend, for the plaintiff.

      J. Larocque, for the defendants.
   Robertson, Ch. J.

The main point in this ease is whether the legal title to an undivided two thirds of the lots in question passed by the deed from the official assignee in bankruptcy to the plaintiff That turns principally on the effect of the instrument of July, 1835, executed by Mr. Clarke and the two Dysons. The existence and contents of that instrument are fully proved by the admission made by Mr. D. S. Dyson in his answer to the bill of complaint of Mrs. Clarke against him and others. This was admissible in evidence as the declaration of a party in possession of lands claiming title, against his own interest. (1 Phil. on Ev. 527, 528, Cowen & Hill's Notes, Edwards’ ed.) And it only proves an instrument, which is not binding on purchasers unless they have notice of it, such notice may be found, in the admissions in the petitions and schedule in bankruptcy, through which such assignee derived his title. The previous agreement between the Bruens and Clarke is only important as showing the consideration for the deed to D. S. Dyson, and establishing a right in Clarke to have the whole property conveyed to him by Bruen. Although he "may have assented to that deed to Dyson, so as to destroy any merely resulting trust, except for his creditors, (1 R. S. 728, § 52,) he is only affected thereby, so far as such deed interfered with his right to such conveyance. That deed to Dyson from Bruen, became by the instrument of July, 1835, converted into a mere mortgage to him, for the sums advanced by himself and brother, and a conveyance of the equity of redemption in an undivided third, and either a conveyance to Mr. Clarke of the remaining two thirds, or the grant of a power to D. S. Dyson, in trust "to sell and pay over the proceeds of sjich two thirds to Clarice; as a trust for that purpose would not be valid. (1 R. S. 727, §§ 45, 55.) If Dyson took such conveyance without the consent of Mr. Clarke, it of course would create a resulting trust in favor of the latter. (1 R. S. 728, § 53.)

In regard to the legal effect of the instrument of July, 1835, 1 think the recent decision in the Court of Appeals of this state, in the case of the New York Dry Dock Company v. Stillman, (30 N. Y. Rep. 176,) is conclusive. And as that is somewhat intricate, it will not be amiss to enter into a minute detail of the facts and the points decided.

The subject of controversy, in that case, consisted of "a fund, claimed to be the share of a certain Walter Smith, of the proceeds of the sale of certain land by persons, (Nevins & King,) alleged to be donees of a power in trust therein for his benefit. Its claimants were the plaintiffs, who as assignees of a junior judgment against Smith, had redeemed from a sale of his interest in such lands, on execution under a prior judgment obtained against him, and the defendant, who had bought all the interest of the judgment debtor in such lands or their proceeds, or in the execution of the power in trust, from a receiver appointed in a suit by a creditor who had obtained a judg- f ment subsequent to both the judgments under which the plaintiffs claimed.

In 1834, the judgment debtor, (Smith,) had the legal title in fee to the land in controversy, and conveyed an undivided half thereof to a Mr. II. H. Kevins. On the first of March, 1838, some time before the recovery of any of such judgments, against Smith, he and Kevins conveyed all their interest in such land in fee to the latter. On the same day the latter conveyed it to a Mr. E. Townsend, who again, on the same day, conveyed it to Kevins and a Mr. O. C. King as joint tenants and not as tenants in common. Messrs. Kevins and King the next day executed two declarations of trust; one, in favor of the Kew York and Erie Railroad Company, and the other, in favor of certain parties originally interested in the first purchase of the land by Smith. The first of such instruments declared, that in case such company should- complete part of their railway between certain points, (Owego and Dunkirk,) within a certain time, (seven years from 1834,) the grantees, (Nevins & King,) would convey to such company one fourth of such lands as a free gratuity, or would sell such portion and pay them the proceeds. The second of such instruments declared that in case the company did not perform such conditions, the grantees would sell such lands and pay to the parties so originally interested, including the judgment debtor, (Smith,) the net proceeds thereof in certain prescribed portions. In 1850, after the purchase by the defendant from the receiver, and the redemption by the plaintiffs under their judgment, the company not having performed such condition, Messrs. Kevins King sold the share set apart for such company; Smith’s share of the proceeds of that sale, under the second declaration of trust, amounted to over eleven thousand dollars, which formed the subject of controversy, in such action. The declaration of trust by Kevins & King, in favor of the railroad company, was made in pursuance of an agreement between Kevins and Smith, at the time of the conveyance by the latter to the former, providing for a conveyance and payment, similar to that which was contained in such declaration to be made to the company. The other declaration of trust by the same parties, was made in pursuance of an agreement entered into, in January previous, ‘to vest the whole title to the land in Kevins, to enable him to convey to each proprietor or party interested therein, the share which he had drawn by lot.

Upon the trial in the Supreme Court before a referee, he held that the authority of Messrs. Nevins & King to sell, was only good as a power in trust, and that the legal title remained in' Smith, which was acquired by the plaintiffs, who were therefore entitled to the fund. The general term of that court affirmed such decision, from which affirmance, the defendant appealed.

The turning point in the case evidently was, Whether the declaration of trust by Kevins & King in favor of the proprietors, (including Smith,) as to the portion of land set apart for the railroad company, (in case they failed to perform the condition attached,) converted the deed from Townsend (their grantor) into a conveyance of a legal estate to Smith, or left in Townsend the legal estate, subject to the execution by Kevins & King, (the grantees,) of the authority specified in such declaration of trust as a power in trust. J have been thus minute in noting the leading facts in the case, in order to show that such question was the turning point. It is true that the counsel for the plaintiffs contended, (p. 186,) that the three conveyances, on the 1st of March, 1838, (from Smith to Kevins, from the latter to Townsend, and from the last to the first two as joint tenants;) an agreement on the same day between Kevins & King and the Kew York and Erie Kailroad Company; and the agreement made the next day between the former and all parties interested, formed but one transaction; and that, therefore, no legal title was vested in Kevins & King, in consequence of one provision of the Kevised Statutes, (1 R. S. 728, § 49;) but, on the contrary, by another, (Id. 727, § 47,) was vested in ' the parties for whose benefit such provision was made. It had been fully conceded that the authority of Kevins & King was void as a trust, and only good as a trust power, (p. 190.) The proposition so contended for by the plaintiff’s counsel was held, in one opinion, (Mullin, J. p. 192,) to be answered, (as expressed therein,) by the fact, that Smith “ conveyed the fee to Kevins, in that part of the land that was intended for the railroad company and Kevins, by a similar conveyance to Townsend. Keither took in trust, as in the conveyance to neither, was a trust expressed, and no declaration of trust was ever executed by either,” or, as the idea was more fully carried out in the second opinion delivered, (Selden, J. p. 196,) “that the reasoning by which ” such proposition “ is reached, assumes that the sole, object of the deed from Smith to Kevins, on the 1st of March, 1838, was to create that power in Kevins & King, in which the series of conveyances resulted;” whereas “ that conveyance was given in part execution of the plan adopted to carry into effect the division and distribution of the lands among all the joint proprietors. * * It was thought proper, for that purpose, to vest the whole title and interest, both-legal and equitable, in Kevins, and the deed from Smith was essential to that object. Unless that deed is held to have taken place according to its terms, the whole scheme of distribution was a nullity. There was nothing whatever to prevent its taking effect as designed, and hence, Smith, by its execution, was completely divested of all legal title to the lands.” The judgment of the court below was unanimously reversed.

Several points were clearly settled by that decision, which are applicable to the case before me.

First. A declaration by the grantor in a deed of its objects and purposes, contained in a separate instrument, even when not under seal, (Laws of 1860, ch. 322,) may operate to alter the character of such deed, however plainly a conveyance of merely the legal estate in the land.

Second. Where instruments, simultaneously executed, relating to the same subject matter, are, for that reason, construed together, the general purpose of the whole, apparent therefrom, will control the strict construction or apparent purpose of one.

Third. Where, by the legal construction of one or more instruments, the sole purpose of one is apparently merely to create a trust, which can only be executed as a power in trust, although such instrument be an absolute conveyance in fee simple of the legal estate, such legal estate remains in the grantor in such instrument, subject to the execution of such power, (1 R. S. 734, §§ 58, 93; Id. 735, § 103,) which is capable of being enforced, in equity.

Applying this to the case in hand, it is very evident, from the declaration of trust executed by D. S. Dyson— for it is such, and not a mere covenant, since it speaks of the terms upon which the land is to he holden—that the purpose of the deed to him, as to the undivided two thirds claimed by Mr. Clarke, was not to vest a fee in Dyson, entitling him to dispose of it as he thought proper, and leaving in Clarke a mere right of action; but to give him a power in trust to sell and pay the proceeds to Clarke, leaving, whatever legal estate there was in Mr. Bruen, to be divested by the exercise of such power of sale. As much legal estate passed to Dyson, of course, by such deed, to enable him to convey enough land to pay off his advances, as is usually vested in a mortgagee, and also a legal estate in one third for his own benefit, but, as to the residue, it remained in Mr. Bruen. There is no distinction in principle between a legal estate, so left undisposed of, and the legal estate conveyed to Mr. Townsend, in the case just cited, for the purpose of dividing the property. If the agreement and power of attorney to Mr. Clarke are to be taken into consideration, they show á right on his part to call on Bruen, either for a deed, or to sell the property at any time, as he had effected the compromise which entitled him thereto. Under the two instruments, Mr. Clarke had the right to enforce, in equity, a sale of his two third interest by Mr. Bruen or Mr. Dyson, by virtue of the power“in trust, or a conveyance by Mr. Bruen, or his representatives, of the legal estate to himself. At all events, therefore, if it has not been divested, such legal estate remained in Mr. Bruen, and could not be disposed of by the assignee in bankruptcy, which is fatal to the plaintiff’s case.

But, if the conveyance to Dyson bh supposed to be made without Clarke’s assent, he took it subject to the right of the latter to have a conveyance executed to him by Dyson. And as equity presumes that whatever ought to be done has been done, such a conveyance may be presumed. The admission in the petition and schedule in bankruptcy, is strong evidence "on this point. The first states that all his property is set out in the schedule. The latter claims only “ one third residuary interest in 204 lots, &c. as per deed of the same from Alexander M. Bruen,” and the accompanying note alleges that Mr. Clarke was “ entitled to, the remaining two thirds' interest arising from, any excess, after satisfying ” the mortgages therein. It does not state merely an interest in the execution of a power in trust, or the proceeds of sales thereunder, but in the land itself. There is ample room in this to find, as a matter of fact, after the lapse of-seven years, between the deed and such admission, (which, of itself, would be a good declaration of trust,) that Dyson had actually released such undivided two thirds to Mr. Clarke.

But even if Dunbar S. Dyson acquired the legal title to such premises, by the deed to him, Mr. Clarke, or his representatives, would have a right to enforce the power of sale at any time, and even if Dyson’s legal title to two thirds were vested in the plaintiff, the title conveyed in this action on a sale, would not be such as this court would compel- a purchaser to take, because it would always be subject to be divested by the enforcement of such power. Unless, therefore, Mr. Clarke, or his representatives, be parties, the bill should be dismissed.

For these reasons, I think the complaint should be dismissed, with costs.


author: Monell, J.

text:
    Thomas B. Oakley, plaintiff, vs William S. Sears, defendant.
    1. Surprise is sufficient ground for a new trial only in a few cases; such as, the sudden and unexpected departure of a witness from the court; unexpectedly adverse testimony of a party’s own witness; sometimes any unexpected testimony ; and generally, any situation which could not reasonably be anticipated, in which a party may be placed, without his default and injuriously to his interests. Per Mohell, J.
    2. The surprise must consist of something which takes place at the trial, and cannot arise out of what may afterwards be discovered and be made a ground of a motion for a new trial; especially by a plaintiff, who can always submit to a dismissal of his complaint if he cannot obtain permission to withdraw a juror.
    3. The bai'e fact that the party was unable to furnish certain evidence on the trial, which he subsequently discovers to be, or deems material, has none of the characteristics of a legal surprise.

      4. Newly discovered evidence upon which a new trial will he granted must he such as has been discovered since the trial.; he impossible to have been obtained, with reasonable diligence, for the former trial; and be material, and not cumulative.
    5. Where the alleged newly discovered evidence consisted merely of a check of another person, with the cancelling mark of the hank upon it, which was in the plaintiff’s possession at the time of the trial, no search for it appearing to have been made; Neld that it was not enough for the party to swear that he had discovered such check since the trial, and that it could not have been found before by the exercise of any reasonable diligence. Hot having shown any such diligence, his allegation that it could not have been found amounts to nothing; as it is the expression of a mere opinion, such evidence itself, though possibly material, is clearly cumulative.
    6. The plaintiff having actually testified, on the first trial, that he drew a certain sum of money from a specified hank, on the day of the date of the check in question, (September 22, I860;) Neld that although the production of the check, with the cancelling marks upon it, might operate to corroborate the plaintiff’s testimony, yet it would be merely cumulative evidence.
    7. Where written evidence, claimed to have been discovered since the trial, was in existence, and known to the party producing it, although its precise place of deposit was forgotten, or even unknown, such party cannot claim it as partaking of the nature of newly discovered evidence, without at least showing that diligent search had been made, previous to the first trial, and it could not he found.
    (Before Monell, J. at special term,
    January, 1867.)
    Motioh for a new tial, on the grounds of surprise, and newly discovered evidence.
   Monell, J.

I think there is no foundation for this motion on the ground of surprise. If the right to move, was not lost by the plaintiff’s laches, (nine months,) of which it is not necessary to express' an opinion, there is yet, no such surprise as would justify the court in setting aside the verdict. There are a few cases only, where surprise is deemed sufficient to grant a new trial, such as, the sudden departure of a witness from court, the unexpected adverse testimony of the party’s witness, and sometimes, any unexpected testimony; and generally any unexpected situation in which a party may be placed, without his default, and which will be injurious to his interests. The surprise must be at the trial, and cannot afterwards be discovered and made a ground of motion; especially by a plaintiff, who can always submit to a nonsuit, if he cannot obtain permission to withdraw a juror. The ground of the motion "in this case is, that the plaintiff was unable to. furnish certain evidence on the trial, which he now deems material. Such ground presents none of the characteristics of a surprise.

In respect to the ground of newly discovered evidence, it must appear, that it has been discovered since the trial— that it could not have been obtained, with reasonable diligence, on the former trial and it must be material, and not cumulative.

At the trial, in order to prove that the plaintiff on or ■ about the 22d of September, 1860, had paid to Plin White $12,000, as a consideration for the defendant’s check, the plaintiff testified, that he received the greater portion of the money upon a check drawn by one E. Lockwood on the Bank of the Commonwealth, and that he so received it on or about the 22d of September, 1860, but could not be positive of the precise day. In rebuttal, the defendant proved by a clerk in the Commonwealth Bank, that no check of E. Lockwood was paid on the 22d of September, 1860.

The evidence, claimed upon this motion to be newly discovered, is the check of Lockwood, with the cancelling mark of the bank upon it. Such check is for $11,000, and is dated September, 19, 1860.

The plaintiff swears that after the check was returned by the bank to Lockwood, he, Lockwood, handed it to the plaintiff as a memorandum which he, the plaintiff, “ might wish to use.” He further states that since the trial, in looking over his papers and books, which he had not had occasion to examine for a long period of time, and conld not have examined by reason of his absence in the United States service, he discovered the said check of Lockwood. That until such discovery, he was not aware where the same was ; nor could he, by the exercise of any reasonable or great diligence, have discovered the same, and that when discovered, it was found where no person by ordinary “ reasoning ” could,have expected to find it.

The check was in the plaintiff’s possession at the time of the trial, and it does not appear that any search for it had been made. It is not enough that the plaintiff now states, that it could not have been found by the exercise of any reasonable diligence. He has shown no such diligence, and his statement, that it could not have been found, goes for nothing, as it is the expression of a mere opinion.

The evidence maybe material but it is clearly cumulative.

The plaintiff had testified that he drew the greater part of the money, from the Commonwealth Bank, on the day of the date of the defendant’s check, (the 22d of September, 1860.) The production of the check, with the cancelling marks upon it, might strengthen the plaintiff’s testimony, but it would, nevertheless, be a mere cumulation of evidence. The date of the Lockwood check was the 19th of September, and of itself furnished no evidence, that the plaintiff drew the money upon it on the 22d; and, in the view of the justice who tried the cause, it was material for the plaintiff to show that he paid the money to White on the 22d, and not on the 19th.

Upon the whole I am satisfied that the evidence claimed to have been discovered since the trial, is not such as falls within the rule. It was in existence and known to the plaintiff, and although its precise place of deposit was forgotten or even unknown, the plaintiff cannot claim it as being of the nature of newly discovered evidence, without at least showing that diligent search was made for it before the last trial, and that it could not be found. So far from showing any search whatever, it is, I think, quite apparent that the importance of the evidence did not suggest itself to the plaintiff, until after the trial, and hence no examination was made for it before.

For these reasons the motion for a new trial must be denied, with ten dollars costs.


text:
    John McCool, plaintiff, vs. David Jacobus, defendant.
    1. If a vendor, on the day specified in the agreement for the completion of the sale, is unable for any reason to perform on his part, it cannot be insisted by him, that the time specified was of the essence of the contract; or that the omission of the purchaser to demand a deed on that day, will excuse the vendor performing, afterwards.
    2. Under such circumstances, the time mentioned in the contract, for the delivery of a deed, is not, as respects the rights of the purchaser, an essential part of it; or if it is, performance by him on that day will be excused, by the inability of the vendor to convey a title free from all incumbrances. A demand of a deed therefore on a subsequent day will be sufficient, and entitle the purchaser to a performance of the, contract. An offer to execute the bond and mortgage agreed to be given, and to pay the balance of the purchase money, is unnecessary.
    8. It is well settled that the vendee of property, under a contract to convey a title free from all inemnlrances, is not bound to take it, if, at the time performance is tendered, there are incumbrances existing upon the property.
    4. Where, on the day when a vendor offered, and was willing to convey, the premises were in the actual possession of his tenants, for terms not then determined, and were also incumbered by assessments which were unpaid; Held that the purchaser was excused from performance on the day.
    5. Where a portion of the premises were, at the time performance was tendered by the vendor, in the possession of a tenant who held the same without any prescribed term being fixed, but under a verbal agreement to surrender the possession, upon a sale being made; Held that although this arrangement was terminable at the option of the landlord, yet the tenant was a mere tenant at will, whose tenancy could not, without the exercise of such option, be terminated, except upon a notice of thirty days. That to terminate the tenancy, upon a sale of the premises, it was at least necessary that notice thereof should be given to the tenant; and that until such notice was given, there could be no termination of the tenancy. Per Monem., J.
    6. Where a receipt for rent, given by a landlord, in January, 1866, acknowledged the receipt of the rent for the premises, in advance to the 1st of August, 1866; Held that proof of a parol agreement by the tenant, to surrender the possession upon a sale being made by the owner, was not competent evidence; it being in conflict with the written contract, contained in the receipt, and tending to vary it.
    7. Such an agreement by a tenant, to surrender the possession, is not a covenant which will run with the land and enure to the benefit of the grantee ; especially without an express and separate assignment thereof from the lessor; and the grantor, after conveyance, could not remove the tenants for holding over, he then not having the reversion. And the grantee, without such assignment, would take the land burthened with tenures which would deprive him of the possession, or the power of obtaining possession, until the tenancy ceased.

      8. Such an arrangement with a tenant is a mere personal privilege to his landlord, to enable him to regain possession, upon the happening of an event named, and he alone can exercise it. If he fails to exercise it, and conveys the title without a special assignment of the agreement with his tenant, the latter will be released, and cannot be disturbed until the end of his term.
    (Before Monell, J. at special term,
    January —, 1867.)
    Oh the 17th of January; 1866, these parties entered into a written contract, whereby the defendant agreed to sell to the plaintiff six lots of land in this city. The consideration was $28,500. $250 was to be paid on signing the contract; a further sum ($7062.50) was on the delivery of the deed, and the residue to be secured by bond and mortgage upon the lots. The contract, after providing that the party of the first part (the defendant) should execute a proper deed for conveying the premises to the party of the second part, (the plaintiff,) in fee simple, free from all incumbrances, and deliver the same on the 20th. day of February, 1866, and that the deed and mortgage should bear the same date, contains the following clause: “ The said deed and mortgage to be delivered and the money paid at the office of Van Antwerp & James, hTo. 1, Park Place, Feb. 20, 1866, at 12 m.”
    'On the 20th of February, 1866, the defendant attended at the office of Van Antwerp & James from eleven o’clock A. M. until three o’clock p. m. He executed and acknowledged the deed required by the contract, and was ready at the time and place to fulfill the contract on his part. The plaintiff did not go to the appointed place, nor did he, or any one on his behalf, perform the contract on his part. In March, or the early part of April, and some weeks after the 20th of February, the plaintiff told the defendant he wanted the title to the lots, and the defendant replied he would not give it, he wanted more money. The plaintiff further said, he was ready to take the title, to which the defendant replied, that he would not let them go at the price agreed upon; he must have more money. The $250 paid was never returned or offered to be returned by the defendant, nor was any act done by the defendant to rescind the contract.
    The plaintiff gave in evidence, after having proved that Smith & Mead were the agents of the defendant, a written paper, signed by them, in the words and figures following $
    “Hew York, Jan. 25, 1866.
    Received from Mr. Linden ten dollars for rent in advance, for 4 lots, 62d str. from Feb. first to Aug, first, 1866. 110.”
    The plaintiff further proved, that the lots mentioned •in said paper were four of the lots described in said agreement; that on the 20th of February, 1866, Linden was in the actual possession of said four lots; that the two lots on Sixty-third street, were on that day in the actual possession of one Stillger, who held the same without any fixed prescribed term, but under a verbal agreement to surrender the possession to the defendant, upon a sale being made of- the lots. It was further proved, (subject to the plaintiff’s objection,) that there was a parol agreement or understanding between the defendant and Linden, that if the lots were sold he would remove therefrom. It was further proved that on the 20th of February, there were two unpaid city assessments for improvements upon said lots.

      George Shea, for the plaintiff.

      Van Antwerp & James, for the defendant.
   Monell, J.

The unqualified refusal of the defendant to convey, rendered the demand for a deed in March or April sufficient in time, substance and form. An offer to execute the bond and mortgage and pay the balance of the purchase money, was therefore, unnecessary, (Blood v. Goodrich, 9 Wend. 68; Driggs v. Dwight, 17 id. 71,) and the plaintiff is entitled to a decree for the specific performance of the contract, unless his failure to accept the deed on the 20th of February was a rescission of it.

In the. view I have taken of this case it is not necessary to determine, whether the time stated for the completion of the purchase was or was not an essential part of the contract. If the defendant on that day was unable for any reason to perform on his part, then it cannot be insisted by him, that the specified time was of the essence of the contract, or that the omission of the plaintiff to „ demand performance on that day will excuse the defendant’s performance now. On the only day that the defendant offered and was willing to convey, the premises were in the actual possession of his tenants, for terms not then determined. They were also incumbered by assessments which were unpaid.

It is well settled that the ve'ndee of property, under a contract to convey a title free from all incumbrances, is not bound to take the title if, at the time performance is tendered, there are incumbrances existing upon it. (Judson v. Wass, 11 John. 525. Tucker v. Woods, 12 id. 190.) In the first case the action was to recover damages, for a breach of an agreement for the purchase of land upon which there was a mortgage, and the court held that the purchaser was not bound to pay for the land with the incumbrance upon it. In the other case, the court charged the jury, at the trial, that if there was an outstanding lease on the plaintiff’s property, which would have prevented his giving possession, in case the defendant had been willing to carry the contract into execution, the plaintiff was not in a situation to convey; and the charge was sustained. To the same effect are the cases of Lawrence v. Taylor, (5 Hill, 107,) and Fletcher v. Button, (4 N. Y. Rep. 396,) in which it was decided that a deed which conveyed no title was not a performance of a contract to convey.

The tenure of Linden, one of the persons in possession, was for a definite period. The written evidence continued" and extended the term to the 1st of August, 1866, and the parol evidence of any agreement limiting such term, was improper, and must be excluded. That portion of the premises, of a lease, for which there was no written evidence, was held under the parol arrangement, which was probably terminable at the option of the landlord. The person so holding was, however, a tenant at will, whose tenancy could not, without the exercise of such option, be termil nated except upon a notice of thirty days. (1 R. S. 697.) To terminate the tenancy upon a sale of the premises, it was at least necessary that notice thereof should be given to the tenant; and it is very clear that until such notice was given, there could be" no termination of the tenancy. The proof offered, of a parol agreement on the part of the tenant of the four lots on Sixty-second street, to surrender the possession upon a sale by the owner, was not competent evidence. It was in conflict with the written contract contained in the receipt of January 25, 1866, which acknowledged the receipt of the rent for these lots in advance, to the 1st of August, 1866, and tended to vary such written contract. The receipt was the best evidence of the letting, and must control.

The question then arises, was the defendant, on the 20th of February, in a situation to convey the lots free from all incumbrances ? The evidence is, that the lots bn that day, were in the actual possession of the defendant’s tenants, holding respectively under the agreements, which have been mentioned. There is no proof that any notice of the sale had been given, or that the' defendant had exercised his option, if he had any, of terminating the tenancy. The agreement to surrender was not such a covenant, it seems to me, as would run with the land, and enure to the benefit of the grantee, especially without an express and separate assignment thereof from the lessor, (1 R. S. 747, §§ 23, 24, 35,) and the grantor after conveyance, could not remove the tenants for holding over, he then not having the reversion. The grantee, without such assignment, would take the land burthened with tenures which would deprive him of the possession, or the power of obtaining possession until the tenancy ceased. The arrangement with Stillger, or even with Linden, if it was competent to prove it in this case, was a mere personal privilege to the landlord to enable him to regain possession, upon the happening of an event, and I think he alone could exercise it. If he failed to exercise it, and conveyed the title without a special assignment of the agreement with his tenant, the latter would be released, and he could not be disturbed until the end of his term. The “sale” was made when the contract was signed, and it was then the duty of the vendor to give notice to his tenants that he terminated the tenancies, and thus put himself in a condition to deliver possession of the lots, with the delivery of the deed.

In respect to the four lots occupied by Linden, I do not think the defendant was capable on the 20th of February, of giving to his grantee either the possession, or the right to the possession. Upon all the evidence, it seems to me, Linden could hold them until the 1st of August, as well against the defendant, as also against his grantee, notwithstanding the parol agreement that upon a sale of the premises he would surrender the possession.

The unpaid assessments were also an incumbrance upon the lots, and excused the plaintiff’s performance on the day; and the defendant can not claim that the time fixed by the contract for the delivery of the deed, was an essential part of such contract, if he on that day could not give a free title..

If I am correct in the views I have expressed, the time mentioned in the contract for the delivery of the deed, was not, as respects the rights of the plaintiff, an essential part of it; or if it was, performance by the plaintiff on that day, was excused, by the inability of the defendant to' convey a title free from all incumbrances.

The demand, therefore, on a subsequent day, was sufficient, and entitles the plaintiff to a performance of the contract.

The plaintiff must have judgment accordingly, with costs.