text:
    Edith M. Lamb, Blanche A. Lamb and Beatrice L. Lamb, Infants, by their Guardian ad litem, James White, Appellants, v. Jessie M. Lamb, Respondent.

      Infants’ real estate — recovery of rent — agreement to pay rent — use of infant¡? house by their mother — agreement with the general guardian for occupation, rent free, in pevrt payment of the infants’ boos'd.

    An action to compel an accounting for the mesne profits or rents of an infant's real estate, in the absence of an express or implied contract to pay rent, can be maintained only against a wrongful occupant or intruder
    When, in an action to recover rent for an infant’s real estate, it appears that the defendant was in possession under the infant’s general guardian and by his permission, and hence was not an intruder or wrongfully in possession, the action cannot be maintained without proof of an express or implied agreement by the defendant to pay rent
    While the possession of real property with the consent of the owner is ordinarily sufficient to sustain an action upon an implied agreement for use and occupation, such an agreement may not be implied when the circumstances attending the use and occupation show clearly that there was no expectation on the part of either of the parties that rent would be paid.
    In an action brought in the name of infant owners by their guardian, to recover from the infants’ mother for the use and occupation of the family homestead which the mother had continued to occupy, with the infants, after the death, of*the infants’ father, by permission of their general guardian, the evideuce tended to show that it was not the intention of the parties that the defendant should pay for the occupation of the house, but that it was understood between her and the general guardian that she should have the use of the house for herself and the infants, rent free, in part payment for the board and clothing of the infants

      Held, that the general guardian had a right to allow the defendant to occupy the premises free of rent, if the arrangement was in fact a reasonable and fair one
    Appeal by tlie plaintiffs, Edith M. Lamb, Blanche A. Lamb and Beatrice L. Lamb, infants, by their guardian ad litem, James White, from a judgment of the Supreme Court, entered in the office of the clerk of Albany county on the 8th day of February, 1893, upon a verdict in favor of the defendant rendered at the Albany Circuit, and from an order denying the plaintiffs5 motion for a new trial made upon the minutes.
    The complaint in the action, which was commenced in February, 1891, was as follows :

      “ The above-named plaintiffs, by their guardian aforesaid, complaining against the above-named defendant, aver:
    “ I. That said plaintiffs now are and ever since January 18th, 1885, have been the joint owners in fee of certain premises situated on the northwest corner of Mohawk and Howard streets, in the city of Cohoes, N. Y., consisting of a lot about one hundred feet deep by fifty feet wide, on which is a large brick dwelling house, suitable-for residence purposes. That ever since the last day of February, in the year 1885, the same has been used and occupied as such by said defendant. That the use and occupation of said p>remises is. reasonably worth the sum of six hundred dollars per year. That no part of the same has been paid by said defendant, although requested so to do by the general guardian of the property of said plaintiffs.
    “ IL That each of said plaintiffs is under fourteen years of age.
    “ 111. That on the 16th day of February, 1891, said James White was by an order, duiy made by Hon. J. H. Clute, county judge of Albany county, appointed guardian ad ¿item of said plaintiffs herein.
    “ Wherefore these plaintiffs demand judgment herein, that they recover of said defendant the sum of thirty-five hundred and seventy-five dollars, with interest on the sum of each $600 from the •end of each year of such occupancy, together with costs of this action.”
    The answer consisted of a denial of liability or indebtedness for such use and occupation, and an averment that defendant, as the mother ■of plaintiffs, occupied said premises with them as their common home, with the consent of their guardian and under an agreement with him, whereby she was not to pay any rent, but was to provide .a home for them and pay one-third of the taxes and one-tliird of the repairs, etc., and that, considering the amount of the estate of such infants, the occupation of the premises as their residence was suitable and proper and not extravagant.
    James White is the guardian ad- Utem and general guardian of the infant plaintiffs, who were, at the time of the trial, all under fourteen years of age. James Lamb, the husband of the defendant •and father of the infants, died intestate January 18, 1885, leaving a considerable estate from which each of the children derived an annual income of $1,200, and among other real property a house and lot occupied by him in his lifetime as a residence, the rental value of which is about $600 per year. The defendant continued to live there with the children after the death of her husband, and remained in such occupation using it as a residence ever since.
    It was an undisputed fact on the trial that an agreement was made between the guardian and the mother of the infants in November, 1886, whereby the mother was to receive $1,000 a year for boarding ■and clothing the infants from the time of the decease of the father to the time of the agreement, which was then paid, and also thenceforward, which was paid accordingly every six months thereafter, but the defendant testified that under the agreement she was to remain in the old residence and have the right to use and occupy it as a part of the consideration for boarding and clothing the children. This was disputed and denied by the guardian.

      J. F. G-ra/wford and F. Covml/ryman, for the appellants.

      TIenry A. Strong and Matthew Male, for the respondent.
   Putnam, J.:

The appellant urges that the court below erred in holding that the action did not lie to recover the value of the use and occupation of the premises described in the complaint, in the absence of an agreement, express or implied, between defendant and the guardian, to pay rent therefor; that an intruder upon or a mere occupant of the lands of an infant is liable to account in an action for rents and profits.

It is undoubtedly true that one who occupies the land of an infant wrongfully 'or without right, an intruder thereon, can be made to account in a proper action.

Is this one of those cases, under the pleadings, or the facts appearing on the trial, where the defendant could be made to-account, in the absence of an express- or implied agreement to pay rent %

The complaint certainly is not drawn to recover a claim for mesne profits or rents accrued to plaintiff by reason of a wrongful occupancy of the lands belonging to plaintiffs.

It is held that a mere intruder on the lands of an infant is considered in equity as entering in the character of guardian, and after the infant comes of age he may, by a bill in chancery, recover the mesne profits. (Martin's Admr. v. Fielder et al., 82 Va. 455-459; Van Epps v. Van Deusen, 4 Paige, 64-71; Drury v. Conner, 1 Har. & Gill. 220.)

It does not appear that the complaint is drawn as a bill in equity to recover the mesne profits under the above cases. It does not. state facts to justify-such a recovery. It does not allege how defendant entered or occupied said premises, or that she occupied them wrongfully or as an intruder, or without the consent of plaintiff’s general guardian. It does not ask an accounting. The complaint is evidently framed to recover rent for the use and occupation of the premises described in the complaint due to plaintiffs under an express or implied contract. We are, therefore, inclined to agree with the position taken by respondent that under the pleadings the plaintiffs to recover were compelled to show an express or implied contract with the defendant to pay rent.

But, assuming the complaint is sufficient to justify a recovery in the absence of .such contract, we are of the opinion that under the facts established on the trial the court below made the proper disposition of the case.

The authorities cited by appellants to sustain their position above referred to are not applicable to such a case as this. In Boylan v. Deinzer (45 N. J. Eq. 485) the defendant wrongfully retained possession of lands of plaintiff after her term had expired. The •case merely affirms an old doctrine stated in Story’s Equity Jurisprudence, 5Y1, viz.: Thus, for instance, if a man intrudes upon ¡an infant’s lands and takes the profits, he is compellable to account for them, and will be treated as a guardian or trustee of the infant. And this is but following out the rule of law in like case, for so .■greatly does the law favor infants, that if a stranger enters into and ■occupies an infant’s lands, he is compellable at law to render an ■account of the rents and profits, and will be chargeable as guardian •or bailiff.”

In Hicks v. Sallitt (3 De G., M. &. G. 782) it was held that a party found wrongfully in the possession of property is to account for the rents and profits. All the other authorities cited by plain tiffs are to the same effect, holding that a mere intruder or one wrongfully or without right in possession of the premises of an infant in a proper action may be made to account for the rents and profits.

In this case plaintiffs on the trial failed to produce any evidence -showing that defendant was an intruder or wrongfully in possession of the premises in question. The testimony shows that she was rightfully occupying the same. It will not be questioned but what •James White, as general guardian of plaintiffs, had power to control their real estate. He could bring ejectment or tresjDass, could lease, manage and protect the same. (See 2 Kent’s Comm. 228 ; Torry v. Black, 58 N. Y. 185.) The evidence fairly shows that defendant a’emained in possession of plaintiff’s real estate by consent of, and under the general guardian. There is a dispute as to the terms of her occupancy, she claiming that he agreed she might have the use of the house and $1,000 a year for the board and clothing of the ■children, and he testifying to facts from which a conditional agreement to pay rent might be inferred. But by the testimony of both, there being no other evidence in the case on the subject, it appears that after the death of her husband defendant continued in the .occupation of the premises with the consent of the guardian. She testified, as already stated, that she was to remain in possession of the house and receive $1,000 a year for the board and clothing of plaintiffs. He testified in regard to her occupancy of the house as follows: I told her that Mr. Crawford had told me it was necessary for me to mate up an annual report of the business I had done for the children as guardian. She said, I suppose we will know how much the rent is going' to be now.’ I said I suppose so. I made up my report, and expected to go down with it, and Mr. Crawford came in and said it was not necessary for me to go down; that he would go down. * * * Q. Did you afterwards have a conversation with Mrs. Lamb? A. Yes, sir. * * * Q. What was said between you ? A. I said Mr. Crawford has returned; they have said nothing in regard to the rent; that is, the surrogate had ■said nothing. * * * Q. What did you say to her then about rent for that residence ? A. I said he had made no remarks about the rent of the residence, and she said, ‘ Probably he don’t intend to ■charge me anything.’ Q. Speaking of the surrogate ? A. Yes, sir; I said it looks so. Q. Before that time had remarks passed between you and Mrs. Lamb upon the subject of the surrogate fixing the rent? A. Yes, sir. The witness: We had talked about it. * * * Q. From what had occurred between you what did she say about her impression, and what did you say about giving your impression? A. That he had the stating of the amount of the rent. Q. That is, the surrogate had? A. Yes, sir. Q. Or whether rent should be paid at all? A. Yes, sir.”

Plaintiffs testimony, therefore, shows that defendant was in occupation under an agreement to pay rent if the surrogate required it, otherwise not. Hence, by the testimony of both parties, defendant was rightly in possession of said premises by consent of the guardian.

Hence, the authorities referred to by appellant, and on which he relies, are not applicable. The defendant being in possession of the premises in question, under an agreement with the guardian (and he was, in fact, the landlord) that she should have the rent of the said premises, and $1,000 for boarding and clothing said children, or under the circumstances and agreement as detailed by the plaintiff in his testimony, in either case, was so in occupation under the .guardian by his permission, and hence was not an intruder or wrongfully on the premises. It follows, we think, that respondent, if liable at all to pay rent, was so liable under an express or implied ■contract to make such payment. She could not be made responsible .as a wrongdoer or intruder or one unlawfully in possession. The trial judge, therefore, properly charged the jury that unless there was an express or implied agreement to pay rent the plaintiff could not recover.

As to whether the evidence disclosed such an agreement on the part of the defendant was a question of fact which was properly and fairly submitted to the jury by the trial court and we cannot say that the verdict of the jury was unsupported hy the evidence. It is held that while the possession of real property with the consent of the owner is ordinarily sufficient to sustain an action upon an implied agreement for use and occupation, such an agreement may not be implied where the circumstances attending the use and occupation show clearly that there was no expectation to pay rent by either of the parties. (Collyer v. Collyer, 113 N. Y. 442.)

Even if we should not take into consideration the testimony of defendant in the case, we think the other evidence was sufficient to support the conclusion reached by the jury. The petition to the surrogate signed by defendant stating that no rent was derived from the premises in question ; the testimony of "White before the surrogate that he thought as long as defendant and her children occupied the house she should live there rent free; his annual reports to the surrogate in which he made no mention of rent; his semi-annual payment to defendant without deducting anything for the use of said premises; the fact that she remained in the occupation five yeai’S without plaintiffs’ making any claim on account of the occupancy; all the facts proved on the trial tend to show that it was not the intention of the parties that defendant should pay for the occupation of said house, but that she should haye the use of the homestead for herself and the plaintiffs in addition to the payment of $1,000.

It is suggested that if plaintiffs permitted defendant to occupy the premises, she had no right to use them, and plaintiffs had no right to allow'her to do so. without the payment of rent, within the principles established in Torry v. Black (supra) and kindred cases. But the guardian had a right to allow defendant to occupy the premises free of rent if the arrangement he in fact made was a, reasonable and fair one. He could allow her to remain therein in part payment for the board and clothing of his wards. The guardian and defendant could not make a contract the effect of which was to defraud the plaintiffs. But such a fraudulent arrangement was not alleged in the complaint or proved on the trial. It was not shown that the use of said premises and the payment of $1,000 was not a proper and just arrangement. The defendant was entitled to the use of one-third of the premises, and she, therefore, received the use of two-thirds thereof and $1,000 for taking care of the three plaintiffs, the latter occupying the house with her. It certainly does not appear from the evidence that a contract which allowed her the use of the house was improper. If the view taken by the plaintiffs is correct, respondent furnished a house worth $600 per annum for the purpose of keeping the three infants, receiving $1,000 per year for their board and clothing. ' Such an arrangement might be deemed unfair, it not being probable that she would have required such a house except for the purpose of boarding the plaintiffs.

We have examined carefully the various exceptions taken on the trial. We do not think any of them require discussion or a reversal of the judgment.

Judgment affirmed, with costs.

Matham, P. J., concurred in result; Herrick, J., not acting.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Van Brunt, P. J.:

license: Public Domain

text:
    The Greenwich Insurance Company of the City of New York, Respondent, v. Oregon Improvement Company et al., Appellants.

      A check is only a conditional payment of a debt — effect of a receipt therefor — negligence in presenting the check — the damage must be shown.

    In. tlie absence of an agreement to take a security in absolute satisfaction of a debt, the intendment of the law is that such security is a conditional payment only; namely, that if the check is paid the debt is discharged, otherwise not.
    The agreement must be proved, and if any inference is to be drawn from silence or want of evidence it is in favor of the payment being a conditional one.
    The giving of a receipt for the money, represented by a check, in no way changes the aspect of the transaction, where the money was not received, and the receipt was only an acknowledgment of the receipt of the check.
    Where a person is negligent- in presenting for payment a check, given in discharge of a debt, a party who is liable for the debt, but not an indorser on the check, is not discharged from his liability, unless it is shown that he is damaged by such negligence.
    Appeal by tbe defendants, the Oregon Improvement Company and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 16th day of June, 1893, upon the verdict of a jury for $1,124.50, rendered by direction of the court, after a trial at the New York Circuit. .

      A. H. Holmes, for the appellants.

      E. R. Robinson, for the respondent.-
   Van Brunt, P. J.:

This action was brought to recover from the defendants a, pro rata or earned portion of a premium on a policy of insurance issued by the plaintiff.

The complaint alleged that the insurance was made at the request and for the benefit and advantage of the defendants, and that the ptoliey was continued in force until about the 20th of March, 1891, when it was canceled at the request of the defendants pursuant to the terms thereof, and that the pro rata or earned premium up to the date of the cancellation of said policy was the sum of $1,503.76, and that the defendants promised and agreed to pay said sum.

The defendants in their answer admit the issuance of the policy, and that it was issued at the request and for the benefit of the defendants, and that it continued in force, as alleged in the complaint, until it was canceled at the request of the defendants; they also admit that the pro rata or earned portion of the premium was the sum of $1,503.76, which sum defendants promised and agreed to pay; but they deny that payment had been demanded, or that they, or any of them, neglected or refused to pay the same, or any part thereof, and deny that said sum, or any part thereof, was due and owing. They also deny each and every allegation contained in the complaint not expressly admitted. And they further allege that before the commencement of this action the defendants paid to the plaintiff the sum of $1,503.76 in full payment of said claim or demand in said complaint set forth.

Hpon the trial it appeared that said plaintiff and defendants never had any transactions directly with each other, but that they were all conducted through a firm of insurance brokers by the name of Satterlee, Bostwick & Martin, and that the plaintiff delivered the policies issued upon the defendants’ property to Satterlee & Co., and that the defendants paid the premium upon said policies to said Satterlee & Co., who, after deducting their commissions, paid over the same to the insurance company, excepting in the instance out of which this action arose. It further appeared that shortly after the issuing of the policy.in question Satterlee & Co. made application to the defendants for the sum required to enable them to pay the premiums thereon, together with the premium upon another policy ■obtained by ¡them for the defendants in another insurance company, and tlie defendants thereupon, on the 13th of February, 1891, furnished Satterlee & Co. with the amount required to settle said account, and took their receipt in full. Satterlee & Co. did not, however, pay the premium on the policy, and on the 20th of March, 1891, when the policy in question was canceled at the request of the defendants, the pro rata, or earned portion of said premium due to. the plaintiff was $1,503.76, which the defendants promised and agreed to pay, as admitted in their answer. On the 28th of March, 1891, the plaintiff sent Satterlee & Co. a notice demanding the payment of this premium, and also that of another policy issued upon the 20th of .March, 1891, but it was not paid. On the fourth of May the treasurer of the defendant, the Oregon Improvement Company, went to see the president of the plaintiff, who informed him that the premium on the plaintiff’s policy had not been paid. The treasurer returned to the plaintiff’s office with Satterlee, in whose presence the president of the plaintiff again stated that the premium had not been paid, whereupon the treasurer stated that the defendant had paid it on the thirteenth of February to Satterlee & Co.

At this interview Satterlee promised that his firm would send a check, which was to be held for a few days. On the fifth of May the defendant’s attorneys wrote a letter to Satterlee & Co., notifying them to produce at once to the defendant satisfactory proof of payment of such premiums to the insurance company or forthwith to repay said moneys to the Oregon Improvement Company. On the same day Satterlee & Co. sent their check to the plaintiff on the Chemical Bank, dated the seventh of May, to its order, for the sum of $6,410.75; this check covered the original premium on the policy in question before cancellation, less the brokers’ commission of ten per cent, and entitled the defendant, if the check was paid,, to a credit in account with the plaintiff of $7,123.05. The amount, thus paid was not adequate to meet the indebtedness due the plaintiff for the earned premium on the policy mentioned in the complaint, and the full premium on the policy issued on the date of the cancellation of the policy mentioned in the complaint, but was simply the amount received by the brokers on February thirteenth, less their commissions. The amount of this check was receipted for on the receipt book of Satterlee & Co. by the plaintiff. Its receipt was also entered in the delivery book of the company. On the afternoon of May fifth the assistant secretary of the defendant called upon the plaintiff to ascertain whether the premiums had been paid by Satterlee & Co. The president of the plaintiff showed the defendant’s agent the check, and called his attention to the fact that it was dated, the seventh, and that they should consider it payment only if it was honored by the bank. The check was deposited in the bank on the eleventh of May and not paid. From the time of the giving of the check until the twelfth of May Satterlee & Oo. had no sufficient funds to meet the same in the bank.

On the ninth of May the plaintiff wrote'to the defendants calling their attention to the fact that they had been requested to hold from day to day the check given in payment of the premiums, and notifying them that the premiums were not paid and that they should look to defendants for their payment. On the eleventh the defendants wrote to the plaintiff in reply to the effect that they had paid the money to the brokers on the thirteenth of February; and that the plaintiff on the fourth of May was notified of such payment; and that on the fifth of May they were informed by the officers of the plaintiff that they had received a check of the brokers for the amount of the premiums less their commissions, and that under tie circumstances they were advised that the plaintiffs could not properly look to them for payment thereof, having accepted Satterlee & Oo.'s check- and their obligation in payment of the original obligations of the defendant therefor. On the same day the plaintiff wrote to the defendants in answer to their letter that their messenger, who called at the plaintiff’s office regarding the alleged payment by the brokers, was informed that they had received a check from the brokers for the premium, and his attention was called to the fact that it was dated ahead, and that they should only consider the premiums paid when the check was honored; and furthermore that they should look to the assured under the policy for payment in the event of the failure of the brokers to make their check good.

It was claimed upon the trial that Satterlee & Co. were the agents of the plaintiff to receive the payment of the premium from the defendants, and that even if they were not the plaintiff accepted the check of Satterlee & Co. as payment of the premium on the part of the defendants. These propositions were repeated in different forms, but they were decided against the defendants by the court, who refused to allow defendants to go to tlie jury upon any sucli issues, and directed a verdict in favor of the plaintiff, and from tlie judgment thereupon entered this appeal is taken.

It is difficult to see how, under the pleadings, it can be claimed that the payment of the 13th of February, 1891, to Satterlee & Co. was a payment to them as the 'agents of the plaintiff, because the answer admits the surrender of the policy in question on the 20th March, 1891, and that the pro rata, or earned premium on said policy up to the date of its cancellation was the sum of $1,503.10, which they promised and agreed to pay. Now, if they had already on the 13th of February, 1891, paid the full premium upon this policy, as was claimed upon the trial, how could it be possible that they should owe $1,503.16 upon such policy upon its surrender before maturity for pro rata or earned premium ? The admission in the pleadings is entirely inconsistent with any such view. But even if that were not so it is apparent from the tenor of the letter of May eleventh by the defendants to the plaintiff, when they were notified as to the condition of affairs in reference to this non-payment of the check of Satterlee & Co., that they did not consider that the payment to Satterlee & Co. of the thirteenth of February had canceled any indebtedness of theirs to tlie plaintiff, because they say: “ On May 1th you were fully notified of such payments (referring to the payment of February thirteenth), and on May 5th we made inquiries of Messrs. Satterlee, Bostwick and Martin, and having been informed by them that they had paid the premiums on the same date, the 5th inst., but after said statement by Satterlee, Bostwick and Martin, we sent to your office and were informed by your officers that they had received a check from Messrs. Satterlee, Bost-Avick and Martin for the amount of the premiums, less amount of their .commissions.

Under these circumstances we are advised that you cannot properly look to this company for the payment of the premiums referred to, you having accepted Satterlee, Bostwick and Martin’s check and their obligations in payment of the original obligation of this company therefor.”

Here is no pretense that there was any satisfaction of the indebtedness of the debt to the plaintiff on account of this transaction prior to the fifth of May, Avhen it is alleged the plaintiff accepted Satterlee’s check in cancellation of that obligation. It was not the payment to Satterlee & Co. which was then claimed to have canceled the indebtedness, but the fact that they had accepted the check of a third party in cancellation of the indebtedness. And this undoubtedly was the position which the defendants took; and it was not until the failure of Satterlee & Co., and they began to think of the relations existing between them, Satterlee & Co. and the plaintiff, that the idea dawned upon them that payment to Satterlee & Co. liquidated their indebtedness to the insurance company. But it is needless to discuss this proposition in view of the condition of the pleadings as already suggested.

The only question which was open to discussion in view of the issues raised by the pleadings was the question whether the indebtedness had been discharged by the acceptance of the check.of Satterlee & Co.

There is no evidence that there was any agreement that this check should be taken in absolute satisfaction of the debt. The messenger . of the defendants first called upon the plaintiff in regard to this matter to learn whether the premium had been paid. This action was entirely inconsistent with the idea that the payment to Satterlee '& Co. had satisfied their obligation. When they learned that it had not they brought Mr. Satterlee to the, plaintiff and he promised to give his cheek. But there is no evidence that upon the giving of that check the plaintiffs agreed to take it in full satisfaction of the debt. In fact it is difficult to conceive how they would have made any such agreement, because they knew of the embarrassment of Satterlee & Co. The check was to be post-dated, and they were to wait for its payment. The defendants were notified of these facts, and it is impossible to spell out such an agreement as would discharge them from their obligations.

The rule as laid down is that in the absence of an agreement to take the security in absolute satisfaction of the debt, the intendment, of law is that it is a conditional payment only; namely, that if the cheek is paid the debt will be discharged; otherwise not. This proposition is distinctly laid down in the case of Carroll v. Sweet (128 N. Y. 17) and cases there cited. There is no room for inferences. The agreement must be proved. If any inferences are to be drawn from silence or want of evidence, it is in favor of conditional payment. The giving of a receipt for the money as represented by this check in Satterlee & Oo.’s receipt book in no way changed the aspect of the transaction. The money was not received, and such entry was only an acknowledgment of the receipt of the check. It discharged nothing, and in no way changed the relation of the parties. It would seem, therefore, that the defendants failed to present sufficient proof to justify a submission to the jury on the question of payment.

There was a claim made that the plaintiffs were negligent in their attempts to collect the check in not having deposited it, and that, therefore, the defendants were discharged. But the defendants were not indorsers upon the check, and if the plaintiffs were guilty of negligence in respect to its collection, in order that the defendants should he discharged by reason thereof it must be shown that they were damaged thereby. It appears that in any event it would not have been paid because there were no funds to meet it.

Upon the whole case we see no error in the conclusion arrived at by the court below, and the judgment appealed from should be affirmed, with costs.

O’Brien and Parker, JJ., concurred.

Judgment affirmed, with costs.


text:
    In the Matter of Proving the Last Will, etc., of Robert Ray Hamilton.

      Preliminary questions in equity cases — token determined — probate of wills — -who may contest — surrogate may determine the status of a contestant — jurisdiction of surrogate to determine as to the validity of a marriage ceremony where a party is under disability — an agreement to marry may be established by circumstantial proof — law of Pennsylvania presumed to be the seme as Pew York — presumption of continuance of mamriage — appeals from decrees probating wills — the General Term is a court of original jurisdiction and may take evidence.

    It is a general rule in the conduct oí the trial of cases, particularly those in the nature of equity proceedings, where there is a preliminary' question as to the right of one of the parties, either to bring the action or to intervene as a defendant; to try such question and to determine the status of the parties before attempting to pass upon the final rights in respect to which the action is brought.

      Only those persons who are interested in the probate of a will have the right to contest the same, and one person cannot give another a standing in court which will enable him to contest the probate of a will, by naming him in the petition for its probate as being that which he is not.
    Upon the application for the probate of a will, where the right to support or oppose such application depends upon interest, the surrogate has the right to determine the status of the party proposing to contest, and to determine the same prior totalling testimony as to thefaotum of the will.
    Upon an accounting for the purpose of the distribution of an estate, the surrogate has the incidental power to construe the will so far as it is necessary to enable him to make his decree of distribution, and by statute, upon the probate of a will, he has the power to make such a construction where it is then required.
    A Surrogate’s Court has no equity jurisdiction, nor has it the,power to annul or set aside, on the ground of fraud, a release executed by the parties interested in the estate, to the executors thereof, although it would undoubtedly have the right to try the question whether a release presented to it had ever been signed or whether it was a forgery.
    Upon an application for the probate of an alleged will, a Surrogate’s Court may take proof and determine that the alleged widow of the testator -was not his lawful widow, and its decision is not a decree annulling a marriage, but simply a determination of the question as to whether the alleged widow had any status in that court as a contestant, by reason of her being the testator’s widow.
    In order that, a ceremony should be a marriage it is necessary that both parties be free to contract, and if either party be under a disability, although they go through the form of a marriage, there is no marriage.
    If a person, by reason of an alleged marital relation, seeks to enforce her rights in a court of law, those rights can be defeated by showing that no such relation existed because of the disability of one of the parties at the time of the attempted contract, and the surrogate, in passing upon such question upon the probate of a will, assumes no equity jurisdiction. Any party interested has the right to bring this question to the attention of the surrogate, and in the orderly conduct of the proceedings to ask him to pass upon it.
    A surrogate is bound to see that the proceedings before him are regularly conducted, to hear those entitled to be heard and to prevent contests of wills by persons wTho have no interest therein.
    Cohabitation and repute merely do not constitute a marriage. There must bo an agreement or contract to be husband and wife; mere living together as such is not sufficient. The agreement to be husband and wife is an absolute and vital prerequisite to constitute a valid marriage, but a valid marriage may be established by circumstantial evidence, and a preponderance of evidence which tends to establish the proposition is all that is required.
    Marriage may be inferred from the actions of the parties, their visible relations to each other and their representations to others that at some previous time they had entered into a contract of marriage, and the proof of cohabitation and repute is circumstantial evidence tending to establish a previously existing fact.
    In the absence of proof of the law of Pennsylvania as to marriage, it is presumed to be the same as tlie common law of New York State.
    The relation of marriage being once established, it is supposed to continue to exist until something is proved to have dissolved it.
    The General Term of the Supreme Court is a court of original jurisdiction upon appeals from decrees of Surrogates’ Courts admitting wills to probate, and it may take additional evidence and must determine questions of fact as it thinks the preponderance of evidence requires.
    Appeal by Evangeline L. Hamilton from that portion of tlie decree of tlie Surrogate’s Court of tlie county of New York, entered in the office of the clerk of the New York County Surrogate’s Court, on the 10th day of March, 1891, which adjudges that the appellant was never the wife and is not the widow of Robert Ray Hamilton, and is not in any wise interested in sustaining or defeating his alleged will, and dismissing her- objections to the probate of said will, and her answer to the petition for the probate thereof.

      G. W. Broolce, for the appellant.

      Elihu Root, for the respondent.
   Van Brunt, P. J.:

In August, 1890, Robert Ray Hamilton died in the State of Wyoming, being at the time a resident of this State. The said Hamilton left a last will and testament bearing date the 17th of March, 1890, and on or about the 2d of October, 1890, one of the executors named in said will petitioned tlie surrogate that a citation might issue to the heirs and next of kin of the deceased, and that the said will of the said Hamilton might be proved as a will of real and personal property, and letters testamentary issued thereon. In said petition the petitioner stated, on information and belief, that one Evangeline L. Mann, otherwise known as Evangeline L. Steele, and also as Evangeline L. Hamilton, then residing at Trenton, 'in tlie State of New Jersey, claimed to he the widow of the deceased, and that a certain child known as Beatrice Ray claimed to be the adopted daughter of the deceased. Citations were thereupon issued, amongst others, to said Evangeline L. Steele, otherwise Mann, otherwise Hamilton, and Beatrice Ray, as tlie heirs and next of kin of Robert Raj Hamilton, deceased. Hpon the return of said citations the said. Evangeline L. Steele appeared and claimed to be the widow of the deceased, and filed objections to the probate of the will. Thereupon one of the legatees and beneficiaries named in the will denied the right of the person styling herself Evangeline L. Hamilton, widow of Robert Ray Hamilton, to appear and contest the probate of the will, and also denied, upon information and belief, that said so-called Evangeline L. Hamilton was the widow of Robert Ray Hamilton.

Hpon the matter coming on for trial before the surrogate, the surrogate directed that as the status of the appellant claiming to be the widow was denied, and. her right to object to the probate denied, the burden was upon her to show that she had a status in court. The counsel for said Evangeline L. Steele thereupon called a witness proving a ceremonial marriage which had taken place between said Robert R. Hamilton and the contestant in the month of January, 1889. The proponent thereupon proceeded to offer proof, without any objection being made upon the part of the contestant, tending to show that at the time of her alleged marriage with Hamilton the contestant had a husband living, and the contestant offered evidence in reply. At the close of the testimony the surrogate held the previous marriage to be established, and denied the right of the contestant to appear in the proceeding, and from the decree thereupon entered admitting said will to probate, and adjudging-that the contestant was not the widow of Robert Ray Hamilton, this appeal is taken.

The principal objection urged by the counsel for the appellant, which, however, was not taken during the progress of the trial before the surrogate, was that the court erred in trying the question as to the status of the appellant as the widow of the decedent before taking testimony as to th & factum of the will.

It is urged that the appellant was made a party to the proceeding by the petition of the executor for probate; and that by section 2528 of the Code it is provided that the appearance of a party against whom a citation lias been issued has the same effect as the appearance of a defendant in an action brought in the Supreme Court. ¥e think in the presentation and argument of this objection, which goes to the jurisdiction of the surrogate, that the learned counsel has overlooked the authority which is vested in the snrro-.gate, and which, is necessary in the performance of his duties; and that he has also sought to invest the appearance of a defendant in .an action in the Supreme Court with a sanctity to which it is not entitled. It is a very familiar rule in the conduct of a trial of cases, particularly those in the nature of equity proceedings, where there is a preliminary question as to the right of one of the parties either to bring the action or to intervene as a defendant, to try such question and to determine the status of the parties before attempting to pass upon the final rights in respect to which the action is brought. ■Such is the foundation of almost all interlocutory judgments in ■equity actions, except those entered upon demurrers.

In actions for a partnership accounting, it is familiar practice where the partnership is denied, as to one of the parties, to first try the question of partnership before allowing such party claiming to. be a partner to vex the court and the other parties to the litigation with his presence in a controversy in which he may have no interest. So, in the case at bar, only those persons who are interested in the probate of this will had a right to contest the same. The provision of the statute is (if the will relates to both real and personal property, as in this case), that the husband or -wife, if any, or the heirs or next of kin of the testator, and all persons in being who would take an interest in any portion of said personal property, and the executor or executors, trustee or trustees named or described in the will shall be cited. And it provides that any person, although not cited, who is named as a devisee or legatee in the will propounded, or who is otherwise interested in sustaining or defeating the will, may appear and support or oppose the application. These provisions of the statute show that only those persons who are interested in the question as to whether the will shall be probated or not, can be heard to support or oppose the application. . And it seems to be a proposition which hardly needs a suggestion for its refutation, that •one person cannot give another a standing in court for contesting the probate of a will by naming him in the petition as being; that which he is not. Any person designated in the will as executor, devisee or legatee, or any person interested in the estate, or a ■creditor of the decedent, may apply to have a will admitted to probate.

Can it be that any one* of these parties, by simply naming another party as an lieir or next of kin, or a wife or husband, as the case may be, can give that person a status to contest the probate of a will in which he has not the slightest possible interest, because the relationship does not exist ? Clearly not. As in respect to the other procedures of the Surrogate’s Court, those incidental powers which are necessary for the fulfillment of the duties imposed upon him by statute are possessed by the surrogate, as was recognized in The-Matter of Peaslee (73 Hun, 113). So in reference to the probate of a will, where the right to support or oppose such application depends upon interest, has the surrogate the right to determine the status of the party proposing to contest. Upon an accounting for the purpose of distribution of an estate, the surrogate-has the power to construe the will so far as it affects his decree of distribution. This is an incidental power. He now has, by provision of the statute, the power upon the probate of a will to make such construction where then required. And to say that, a party may come in and delay the proceedings without establishing any right or status seems to place such proceedings at the mercy of any interloper who may have the assurance to claim an interest, even though without the slightest foundation.

It is urged that the Surrogate’s Court has no equity jurisdiction. It is undoubtedly true. And it is further urged that, therefore, the-court could not decree that this appellant was not the widow of the-testator; and in support of this proposition our attention is called to-the well-established principle that the Surrogate’s Court has no-power to annul or set aside on the ground of fraud, a release executed by the parties interested in the estate to the executors thereof. But it has never been held that the Surrogate’s Court had no power to try the question as to whether any such alleged release existed or not. The Surrogate’s Court would undoubtedly have the right to-try the question of a release presented before him as to whether it had ever been signed, or whether it was a forgery; and it is a similar question which was being determined by the surrogate in reference to the alleged marriage with the testator. He was not making a decree annulling a marriage. He was simply determining the question as to whether the contestant had any status in his court by reason of her being the testator’s widow. In order that this performance in New Jersey between Hamilton and the appellant should be a marriage, it was necessary that both parties should be free to contract, and, if either party was under a disability, although the parties went through the forms of a marriage, there was no marriage, and that is all that the surrogate attempted to deterririne.

If the appellant, by virtue of an alleged marital.relation, was seeking to enforce her rights in a court of law, those rights could be ■defeated by showing that no such relation existed, because, at the time of the attempted contract, of the disability of one of the parties. 'This has alwaysbeen the rule, and the surrogate, in passing upon the .status .of this contestant, assumed no equity jurisdiction, but was passing -upon a legal question.

It is further urged that in any event the legatee who filed the objection to the appearance of the appellant as a contestant of this will, being simply a defendant to this proceeding to probate the will, had no right to question the status of this contestant. The force of this objection we are unable to see. Any party interested had the right to bring this question to the attention of the surrogate, and in the orderly conduct of the proceeding ask him to pass upon it. The proceedings for the probate of the will did not belong to any of the parties, but belonged to the court. The court has a right to bring in other parties, to allow other parties to be heard, and to determine whether parties claiming to be heard have any status in the proceeding whether any of the other parties object or not. 'It seeems to be assumed by the appellant that the surrogate is the mere agent of the proponents of the will; that he has no powers of his own for the purpose of seeing that justice is done. This is contrary to the whole scope of the authority conferred upon the surrogate in the probate of wills. He is bound to see that the proceedings are regularly conducted, to hear those entitled to be heard, and to prevent contests of wills by persons who have no interest.

Yarious errors claimed to have been made by the surrogate in the •admission of testimony have been called to our attention. But upon .an examination of the record we do not see that any of them are deserving of special comment or mention.

It is urged upon various grounds that the proof was wholly insuffi■cient to establish the existence of a marriage between Joshua J. Mann ■and the contestant; that there was no evidence of a contract of mar.riage de verba et f resentí between Manir and this contestant; that in attempting to contract with Hamilton the contestant was guilty of bigamy if a marriage already existed between herself and Mann, and that there being a presumption of innocence there was no sufficient proof to overcome such presumption. And it is further urged that the parties contesting her right to appear must prove beyond all doubt that she was the wife of Joshua J. Mann at the time of the attempted marriage with Hamilton. The latter proposition seems to show the extremities to which the appellant’s counsel must resort in order to support the position he has taken upon this appeal. He claims before this court a dignity of proof in a civil proceeding which does not prevail upon a trial involving the life of the defendant. It is undoubtedly true that cohabitation and repute merely do not constitute a marriage. There must be an agreement or contract to be husband aud wife; mere living together as such is not sufficient ; the agreement to be such is an absolute and vital prerequisite to constitute a valid marriage. But murder can be proved by circumstantial evidence, and there does not seem to be any reason why a valid marriage may not be established by the same class of proof. Men are convicted and executed without having eye witnesses of their crime. Circumstances which inevitably lead to the conclusion of the commission of the crime are sufficient in a capital case; and in a civil case a preponderance of evidence which tends to establish the proposition is all that is required. So, where the issue is of marriage, although the contract itself may not be established by direct evidence, yet it may be established by. circumstances. It may, from the actions of the parties, their visible relations to each other and their representations to others, be inferred that at some previous time they had entered into a contract of marriage, and that is all the dignity of the proof of cohabitation and repute. It is circumstantial evidence tending to establish a previously existing fact, and such proof may be as satisfactory, and often more satisfactory than the much more limited direct evidence which it is ordinarily possible to produce.

It has been further urged as an objection to the character of the proof offered in this case that there was a failure to prove that a contract of marriage de verba et presentí was a marriage under the laws of Pennsylvania; and that there was no proof what the laws of that State were; and that there was no proof that this marriage was existing on the 7th of January, 1887, the time of the attempted marriage, or that no divorce or annullment of any pre-existing marriage was had.

As for the laws of Pennsylvania, in the absence of proof, they are presumed to be the same as the common law of this State. As to the question of the proof that there was no divorce or annullment of any pre-existing marriage, even in a trial for bigamy no such proof is required. The relation once established, it is supposed to continue to exist until something is proved to have dissolved it. And the existence of this marriage between Mann and the contestant having been established, it was incumbent upon her to show that the disability had been removed when she attempted to. marry the testator.

It would be impossible, within the limits to which this opinion should be kept, to consider in detail the evidence before the surrogate tending to establish the marriage to Mann. The probative character of such evidence always depends largely upon the peculiar features of each individual case, as will be seen by a reference to the adjudications upon the question as summed up in the case of Hynes v. McDermott (10 Daly, 423). In the case at bar the evidence of cohabitation and repute wras of the most satisfactory and complete character. Indeed, it seems it would have been difficult for the surrogate to come to any other conclusion from all the evidence introduced of the long-existing relations between Joshua J. Mann and the appellant, than that they were husband and wife.

It undoubtedly is true, as claimed by the appellant, that the surrogate seems to have had an exaggerated idea in regard to the force of his adjudications upon questions of fact where he says: “After having ascertained the facts, his finding thereon upon a conflict of evidence is, in my judgment, equivalent to the finding of a jury, and must settle forever in all courts the question of fact involved. If he errs in his application of the law, the appellate courts will correct his mistake. But they are powerless, as they should be in the proper administration of human affairs, to inquire into the fact which he or a jury has determined, as I think, for all time.” In the enunciation of this proposition the surrogate seems to have forgotten the provisions of the Code which make the General Term a court of original jurisdiction upon appeals in these proceedings; and they may take additional evidence, and must determine questions of fact as they think the preponderance of evidence requires. The powers of the court upon appeal from the surrogate on the probate of a will are entirely different from'those upon appeal from the verdict of a jury. And questions of fact upon conflicting evidence are finally determined, not by the surrogate, but by the General Term.

Bearing in mind this responsibility upon the part of the General Term, we not only see no reason to differ from the conclusions arrived at by the surrogate upon the questions of fact, but, as already intimated, we do not see hojv, under the evidence, he could have reached any other result.

The decree should be affirmed, with costs.

O’Brien and Parker, JJ., concurred.

Decree affirmed, with costs.


author: Per Curiam :

text:
    In the Matter of Opening St. Nicholas Terrace. John F. Pentz and Others, Petitioners, Respondents, v. Ira Shafer, Claimant, Appellant.

      Unopened private street — award therefor in eminent domain proceedings — apportioned among the owners of the fee and abutting otoners.

    Where the naked fee of a strip of land in the city of New York called Pentz street remained in the original owners, although under certain conveyances made by such owners, the grantees therein, as abutting owners, acquired ordinary street easements over the strip, the street never having been laid down on any of the official or permanent maps of the city, nor actually laid out, the amount of an award made for a portion of the street taken by the city in proceedings instituted under the right of eminent domain to open an intersecting street, must be apportioned between the abutting owners and the owners of the fee.

      Matter of Opening Eleventh Avenue (81 N. Y. 446), followed.
    Appeal by the claimant, Ira Shafer, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of October, 1893, confirming the report of a referee and directing the payment of a fund to the petitioners.

      This was a proceeding to determine the title to certain awards made to “ unknown owners ”, for land taken for the opening of St. Nicholas terrace, in which the petitioners, John F. Pentz and others, and the claimant, Ira Shafer, are adverse claimants to the award for certain parcels. The same petitioners and William R. Hutton and others, executors, are adverse claimants to the award for certain other parcels in another proceeding.
    The questions presented are the same in both cases, and arise upon the same facts, and may be disposed of together.
    Prior to January, 1863, Smith Barker, as executor and trustee under the will of John Pentz, deceased, became the owner of a tract of land which included the parcels to which the awards for damage in controversy were made, the land being included within the boundaries of a street called Pentz street, which was laid out in the year 1872 hy Barker, who caused a map of the Pentz tract to be made, by which it was laid off in numbered city lots fronting on streets and avenues designated thereon.
    It was conceded that Pentz street was never laid down upon any of the official or permanent maps of the city, neither upon that of 1811, made hy the commissioners of streets and roads under the act of 1807, nor later upon that of 1868, made by the Central Park commissioners under chapter 697 of the Laws of 1867, nor was it ever subsequently accepted or adopted by any department of the city government; it has never been graded or improved, nor used by the public or private owners.
    St. Nicholas terrace, as laid out in 1891, intersected Pentz street, and the awards in question were made for that part of the latter street included within the lines of this terrace.
    After filing the map of the Pentz tract, Barker, as executor, conveyed many of the lots embraced in said map by the numbers by which they were designated thereon, and by descriptions bounding the lots by Pentz street and One Hundred and Thirty-ninth street as laid down thereon.
    By the Hutton deeds, which contain four separate descriptions, and the Kilpatrick-Shafer deeds, which contain two separate descriptions, the property is conveyed by lot numbers as appearing upon the map filed by Barker, but this is followed by a description giving the boundaries by courses and distances.

      John O. Slum, for tlie appellant.

      James A. Jeering, for tlie respondents.
   Per Curiam :

We are satisfied that, under tlie conveyances, the naked fee of the strip of land called Pentz street was retained in the Pentz estate, and under them abutting owners acquired simply the ordinary street easements over this strip, and the city having condemned these easements and the fee, that the amount awarded must he apportioned between the abutters and the owner of the fee, for the reasons and upon the principle stated in the opinion in The Matter of Opening Eleventh Avenue (81 N. Y. 446).

The awards, therefore, should he equitably apportioned between the owners of tlie fee and those persons to whose lands tlie easements were appurtenant. The orders should accordingly he reversed and the ease sent hack to tlie referee, in order that an apportionment may he made, with costs to appellants to be paid out of the awards.

Present — Yan Brunt, P. «L, O’Brien and Follett, JJ.

Order reversed and the case sent hack to the referee, in order that an apportionment may be made, with costs to appellants to be paid out of the awards.


author: Follett, J.:

text:
    Frank Ross, as Ancillary Administrator, etc., of James G. Ross, Respondent, v. Wallace P. Willett et al., Appellants.

      Partnership as to profits and losses only — title to the property — it passes to an administrator and not to the co-partners of the partner holding it —a loss should he determined in equity, not at Imo — ancillary administration.

    A joint adventure is a limited partnership, not limited in a statutory sense as to liability but as to its scope and duration, and, under the laws of the State of New York, joint adventures and partnerships are governed by the same rules.
    It is entirely legal and competent for persons to agree that they will share the profits and losses arising from the purchase and sale of goods, although, as between themselves, one of them retains the legal title to the goods, and in such case they do not become partners in the goods, but are such in respect to the profits and losses.

      Where the title to certain property is in one person, and others have the right to one-fourth of the profits thereon, if any are made, and are bound to bear one-fourth of the losses, if any occur, the title to such property does not devolve upon the surviving partners, upon the death of the partner in whom the title was, but upon his legal representatives who have the right to make a sale of the property.
    Where there is a partnership as to profits and losses, an action in equity to determine the amount of the loss is proper and an action at law is not maintainable.
    It was shown upon an application for ancillary letters on the estate of a decedent, that such decedent was a resident citizen of the province of Quebec, where he died, and that by certain judicial proceedings, known as “ verification of heir-ship,” had in that province and by virtue of certain powers of attorney, the applicant for ancillary letters acquired a legal right to the possession of all the personal estate of such decedent, and that his authority to act in such province had not been revoked or annulled.

      Held, that such person was properly appointed ancillary administrator of the estate of said decedent.
    Appeal by the defendants, Wallace P. Willett and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of March, 1892, upon the decision of the court after a trial at the New York Special Term.

      Theodore F. Banxay, for the appellants.

      George B. Adams, for the respondent.
   Follett, J.:

The court found, and we think the evidence required the finding, that James G-. Ross and the defendants were engaged in two joint adventures by which Ross purchased two cargoes of sugar, taking the legal title to them in his own name, under an agreement between him and the defendants that they should have one-fourth of the profits, if any, and should bear one-fourth of the losses, if any. These facts are established beyond doubt by the defendants’ letters and telegrams. One of these cargoes, the “ Cornelia Smit,” was purchased in April, 1880, and Avas held until June 17,1889, when it was finally sold at a large loss. The other, the Phineas Pendleton,” was purchased in December, 1880, and was held until July 2, 1889, when it was also sold at a large loss. During the time that these cargoes were held, between eight and nine years, the defendants were repeatedly asked, but always refused, to pay one-fourtli of the cost of the cargoes and the accrued expenses, though they never denied their interest in them nor their liability for one-fourth of the loss. Ross offered to deliver to the defendants one-fourth of the sugar if they would pay one-fourth of its cost and its expenses, which they refused to do.

October 1, 1888, James G. Ross died, and on the 25th of April, 1889, ancillary letters of administration upon his estate were issued to the plaintiff by the surrogate of the city and county of New York. On the 17th of June, 1889, the plaintiff in this action sold the Smit cargo, and July 2,1889, he sold the Pendleton cargo. On the 30th of April, 1890, he brought this action to recover one-fourth of the loss arising from the adventures.

It is insisted on behalf of the appellants that no partnership existed, as between James G. Ross and themselves, but if there were, that his administrator did not succeed to the legal title to the property, and he had no right to sell it. A joint adventure is a limited partnership, not limited in a statutory sense as to liability, but as to its scope and duration, and under our law joint adventures and partnerships are governed by the same rules. (Hubbell v. Buhler, 43 Hun, 82-84.)

It cannot be denied that it is entirely legal and competent for persons to agree that they will share the profits and losses arising from the purchase and sale of goods, though, as between themselves, one of them retains the legal title to the goods. In case A. and B. agree that the former shall purchase certain articles at an agreed price for the purpose of speculation, and that they shall share the profits and losses arising from the venture, they do not, as between themselves, become partners in the goods, but are such in respect to the profits and losses. (Moore v. Huntington, 7 Hun, 425 ; Ward v. Thompson, 22 How. [U. S.] 330; Smith v. Watson, 2 B. & C. 401; Meyer v. Sharpe, 5 Taunt. 74; Story Part. § 27; Lind. Part. [3d Eng. ed.] 19, 20 et seq.)

Hnder the facts proved in this case it is clear that James G. Ross held the legal title to the two cargoes of sugar, and that the defendants had the right to one-fourth of the profits, if any were made, and were bound to bear one-fourth of the loss, if any accrued. Under such circumstances, the title to the cargoes of sugar not being in the partners, it did not devolve upon the surviving partners at the death of Ross, but upon his legal representative, who had the right to make a sale of the property. Tire evidence shows that he consulted with these defendants in respect to the time and mode of sale, and that they refused to consent that a sale should be made, and declined to advance the one-fourth part of the sums expended in the venture. It is further shown that the plaintiff sold these cargoes at a time when they brought a larger price than could have been obtained for them at any time subsequent to the death of his intestate, and there is no claim that the sale was not an advantageous one.

There being a partnership as to profits and losses, an action in equity to determine their amount was the appropriate remedy, and an action at law to recover one-fourth of the sum could not have been maintained. (Attwater v. Fowler, 1 Hall, 180.) The profits or losses of one or two joint adventures can no more be adjusted and recovered in a legal action than can those of a general partnership, the same principles being applicable to both. The fact that the defendants admitted in their answer (divisions 8 and 9) that the items constituting the account and set forth in the plaintiff’s bill of particulars were correct, did not deprive the court of equity of its jurisdiction of the action.

It is urged that this plaintiff was not duly appointed ancillary administrator of the estate of the decedent. Section 2696 of the Code of Civil Procedure provides that in cases where the decedent, at the time of his death, resided without the United States, upon the presentation to such Surrogate’s Court of satisfactory proof that the party so applying * * * is entitled to the possession in the foreign country of the personal estate of such decedent, the Surrogate’s Court to which such copy of such foreign letters, so authenticated, or such proof is so presented, must issue ancillary letters of administration in accordance with such application, except in the following cases.” The exceptions have no relation to the case in hand. -The evidence shows and the court found that James Gf. Ross was a resident citizen of the province of Quebee in the Dominion of Canada, where he died October 1,1888, and that by certain judicial proceedings known as “ verification of heirship,” had in that province and by virtue of certain powers of attorney, the plaintiff in this action acquired the legal right to the possession of all the personal estate of Janies G. Ross, deceased.

The proof was clear and undisputed that when the plaintiff was appointed ancillary administrator.by the surrogate of the county of New York, and when this action was tried, he was entitled to the possession in the province of Quebec of the personal estate of James G. Ross, which brings the case precisely within the provisions of the section of the Code above quoted, and authorized his appointment. His authority to act in the province of Quebec had not at the time of the trial been .revoked or annulled, and his right to maintain this action was perfect.

Many exceptions were taken on the trial to the admission and rejection of evidence, some of which related to the mode of proving the items of account, about which there was no real controversy, and the other exceptions in no way affect the merits, and they do not deserve consideration. After a careful examination of the evidence contained in this record we are satisfied that there is no r.eal merit in the defense in this action, and that the judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


text:
    Walter K. Freeman, Appellant, v. United States Electric Lighting Company, Respondent.

      Action to recover damages for a breach of contract — when the complaint is properly dismissed.

    The facts and circumstances considered and commented upon which, upon the trial of an ac.t-ion brought to recover damages for an alleged breach of contract, justify an order by the trial court dismissing the plaintiff’s complaint.
    Appeal by the plaintiff, Walter K. Freeman, from a judgment ©f the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 20th day of January, 1891, dismissing the plaintiff’s complaint, with costs, after a trial at the New York Circuit.

      A. Ii. Dyett, for the appellant.

      WilUam Allen Butler, for the respondent.
   Follett, J.:

This action was brought to recover $134,220 damages for the alleged breach of a written contract, dated June 21, 1881, which claim is made up of the following items : (1) $1,500 payable pursuant to the second division of the contract; (2) $100,000 payable for patents pursuant to the third division of the contract; (3) $16,510.66 for salary between June 21,1881, and October 27,1887; (4) $3',812.50, expenses for experimental purposes between the same dates, pursuant to the first paragraph of the third division of the contract, less $7,609.16, paid toward items 3 and 4; and (5) $20,000 damages for having been wrongfully discharged October 27, 1887, from defendant’s service. On the trial the plaintiff abandoned his claim to recover on the first item of $1,500, so that need not be considered. Testimony having been given from which the jury might have found that the contract of June 21, 1881, was duly made for and in behalf of the defendant, it will be assumed on this appeal that the contract was not the personal agreement of Charles R. Flint, but was the contract of the corporation — the defendant — of which he was president.

When the contract was entered into the plaintiff claimed to have invented an electric .lamp with a carbon filament of high resistance, and certain other valuable apparatus for lighting by electricity. ,The claim for the second item, $100,000, arises out of the first subdivision of the third division of the contract, which is as follows :

1st. In case a patent is granted to said party of the first part for said carbon filament lamp, and the claims of said Edison thereto are adjudicated invalid, and the patent granted as aforesaid the said party of the first part is adjudicated as securing to the said party of the second ¡Dart the exclusive right to the use of said carbon filament lamp in incandescent lighting, so as to prevent said Edison from using his present form of lamp, then the said party of the second part shall either pay to the said party of the first part $100,000' in cash for said patent, and retain the same as his exclusive property, free from all claims of the said party of the first part, or shall assign back said patent to said party of the first part. And in case a-patent is obtained upon said carbon filament lamp, but not-in such form as to entirely defeat said Edison’s claims or secure an entire monopoly therein to the said party of the second part, to the exclusion of said Edison, but, nevertheless, in such form as to cover valuable features of construction, the said party of the second part shall pay to said party of the first part, a less sum in proportion to the diminished value of the same therefor, hut at least twenty-five thousand dollars, or assign such patent back to said party of the first part.”

It is conceded that a ¡latent for the lamp which the plaintiff claims to have invented has not been granted to him, and that on the 27th of November, 1883, a patent was granted to Edison for his lamp, and on the 18th of March, 1887, all proceedings pending before the Commissioner of Patents in support of the invention claimed by the plaintiff tenninated adversely to him and to all persons claiming under him. The plaintiff asserts that defendant failed to prosecute the application for his patent with diligence, and that, by reason of its neglect, the right to the ¡latent was lost and he became entitled to receive $100,000. It will he observed that by the terms of the contract quoted, the defendant did not absolutely bind itself to pay $100,000 for the patent in case it was granted, but had the right in lieu thereof to assign it to the plaintiff. Assuming that an action could be maintained for the contract price instead of for the damages, if any were sustained by the plaintiff by reason of the defendant’s failure to prosecute the claim, and assuming that this action may now he turned into an action for damages, we are of the opinion that there is no evidence in the record which would have sustained a verdict that the defendant neglected to present all of the evidence of discovery and prior invention, presented or suggested by the plaintiff, or which the defendant could obtain by investigations made in its own behalf. The evidence in this case is entirely insufficient to raise a question of fact for the jury as to whether the failure to secure a patent occurred through the neglect of the defendant. A careful examination of the testimony given by the plaintiff leaves us in doubt whether he believed that he was entitled to a patent. We think the plaintiff failed to establish a prima, faeÁe case for the recovery of the $ 100,000, and that no issue of fact was presented by the evidence relating to this item.

The third, fourth and fifth items which the plaintiff claims to recover, all depend on whether plaintiff’s employment under the contract was terminated December 31,1881,-and may be considered together. The plaintiff testified that, pursuant to the contract., he began work for the defendant on the 21st of June, 1881, and continued until the thirty-first of December of that year, and received payment in- full for his services, and that he was also paid in full to December 31, 1881, for electrical experiments, pursuant to the contract. ■ On the 30th of December, 1881, the plaintiff wrote the defendant that another company had offered to pay him a greater compensation than the defendant was then paying him, and that unless some different proposition was made he should leave the defendant’s service the next day.

The defendant’s president testified that January 3, 1882, a letter was written and mailed to the plaintiff accepting his resignation.

The plaintiff testified that he did not receive the letter, but he heard that such a letter had been written, and that his resignation had been accepted in a sense. The plaintiff also testified, and so did the defendant’s officers, that since January 1, 1882, the plaintiff had not been in the employ of the defendant except in gathering evidence and in attempting to establish the patentability of his electric lamp. The plaintiff testified that since December 31, .1881, he had not been engaged in making experiments for the defendant. The fifty dollars per month mentioned in the contract are not for plaintiff’s compensation but for expenses of private experiments. Having made no experiments it is not probable that he has incurred any expenses in experimenting, and if he had shown that he had been engaged in experimenting he would have had to go further and show that he had incurred expenses before he could recover for them. The record is barren of evidence to support a claim for the item of 83,812.50.

This brings us to the question, was the evidence sufficient to authorize the jury to find that plaintiff’s employment, under the contract, did not terminate December 31, 1881, and was continued until October 27, 1887 ? We have referred to the plaintiff’s resignation and its acceptance, but the plaintiff'swore' that' his ’resignation was a sham and not designed to take effect, but to effect other purposes, and was so understood by defendant’s officers. The defendant’s president denies this. This of course may be said to have presented an issue of fact. But the difficulty is that the plaintiff’s evidence is so completely contradicted by his written receipts and by his conduct that a verdict in his favor would have been set aside. Notwithstanding the plaintiff’s testimony that his resignation was a sham, he is compelled to admit that he performed no service for the defendant after December 31,1881, except in attempting to secure evidence to establish his right to a patent for an electric lamp for which he was to receive $100,000. During the year 1881, when the plaintiff was employed by the defendant, he signed thirteen receipts, which, on their face, were on account of salary, and in the same year lie signed three receipts for money received for experiments and four for money advanced. After January 1,18S2, all payments for salary and for experiments ceased. In the year 1882 plaintiff received sixty-five dollars, which he receipted for as paid on account. In 1883 he received $955, paid on thirty-three different dates, for which receipts were given for money received “on account,” “for expenses” or for “money advanced.” In 1884 he received $1,020, on twenty-five different dates, for which he gave receipts “ for money advanced.” In 1885 he received $1,020 on twenty-two different dates, for which ah of the receipts were for money advanced, save one, which was for money on account. In. 188G he received $1,000 in thirty-two payments, all of which were for money advanced, and in 18S7 he received $420 in twelve different payments, which he receipted for as money advanced. From January 1, 1882, to July 14,1887, 127 payments, aggregating $4,480, were made by the defendant to the plaintiff, for all of which receipts were given, and there is no mention that any payments, were for salary, wages or for expenses incurred in experimenting.

After a careful examination of the record we are unable to find sufficient evidence to have justified the jury in finding that the plaintiff’s employment continued under the contract beyond January 1, 1882, and it follows that he could not have been wrongfully discharged from such employment as alleged in the complaint.

"We think that the plaintiff made no case for the jury, was rightly nonsuited and that the judgment should be affirmed, with costs.

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

Judgment affirmed, with^costs.


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    James J. Nealis, as Receiver, etc., Respondent, v. American Tube and Iron Company, Appellant.

      Temporary receiver— the notice required by 2 Jt. S. 469, § 70, need not be given by a temporary receiver —pleading and proof of corporate insolvency — qualification of the receiver — notice to Attorney-General.

    In an action brought by a receiver of a corporation to set aside a j udgment entered by the defendant against the corporation, by consent of its officers, and to recover the money realized upon such judgment, the complaint alleged, among other things, the appointment of the plaintiff as permanent receiver; authority to prosecute the action ; the insolvency of the company at the time •when the judgment was entered ; that this insolvency was known to the defendant and to the officers of the corporation when the latter consented that the judgment be entered, and that the offer of the officers of the corporation upon which the judgment was entered was intended to give preference to the defendant in the action over other creditors.
    Upon the trial the plaintiff proved the facts alleged. The complaint did not allege, nor was it proved, that the plaintiff was appointed a receiver in a creditor’s action, or ever gave the notice of his appointment as receiver required by 2 Revised Statutes, 469, section 70, and although the plaintiff alleged in his complaint that he was a permanent receiver, no proof of that fact was given, and the evidence admitted without objection showed that he was a temporary receiver, and the court upon the decision of the case conformed the pleadings to the proof in that' particular.
    Held, that the provisions of 2 Revised Statutes, 469, sections 70 and 72, to the effect that receivers immediately after their appointment shall give a certain notice, does not apply to a temporary receiver;
    'That section 1788 of the Code of Civil Procedure in regard to temporary receivers, requiring them-to qualify as prescribed by law for the qualification of permanent receivers, applies only to those things which a receiver must do in order to qualify him to act as such receiver and not to his proceedings after his qualification;
    'That an objection that the corporation should have been a party to the action, as the omission appeared upon the face of the complaint, should have been taken by demurrer and could not be raised by answer;
    That the allegation of the complaint that the corporation was insolvent was sufficient without specifying the other existing creditors, and the fact proved on the trial that suits were pending and judgments were about to be entered against it at the time of the offer of judgment, was sufficient to establish the fact that other creditors were injured by reason'of such offer.
    'The fact that'judgments are being entered against a corporation and that it. is unable to meet these obligations establishes a condition of insolvenc}'.
    It is not required by chapter 378 of the Laws of 1883 that the Attorney-General should have notice of every suit brought by a receiver by authority of the court.

      Appeal by the defendant', the American Tube and Iron Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of May, 1893, upon the decision of the court after a trial at the New York Special Term.

      P. Q. Eckerson, for the appellant.

      Walter Large, for the respondent.
   Van Brunt, P. J.:

This action was brought by the plaintiff, as receiver of the New York Supply Company, to set aside a judgment obtained by the defendant against said New York Supply Company, and for a. recovery of the money realized upon said judgment.

The answer consisted of a general denial and an allegation that the New York Supply Company was a necessary party to the action.

The complaint alleged that the plaintiff was appointed permanent receiver of the New York Supply Company (Limited), and that he qualified as such receiver, and took possession of the property and effects of said company, and that in June, 1889, this court made an order authorizing and directing him to commence and prosecute-this action. It further alleged that the defendant was a foreign corporation, and that in October, 1888, the New YLi’k Supply Company was insolvent and wholly unable to pay its debts, which was well known to its officers and also to the defendant; that on or about the thirtieth of said October, the defendant began an action against the New York Supply Company as defendant by service of a summons upon its treasurer; that on the same day the said company by its attorney offered to allow judgment, which offer this-defendant accepted, and judgment was thereupon entered on the thirty-first of October; that this defendant issued an execution upon said judgment, levied on property of said company, which was sold and realized the sum of $578.50, and $77.17 sheriff’s fees. It further alleged that, at the time of the offer of judgment and the acceptance thereof, the supply company was wholly insolvent, and that said offer was made with the intention to give a preference to the defendant in this action over other creditors of said corporation, and judgment was demanded declaring the offer of judgment and the acceptance thereof, and the judgment and the execution issued thereon to have been fraudulent and void and of no effect as to this plaintiff as receiver, and adjudging that the defendant pay to the plaintiff _ as receiver said sums of money.

Upon the trial the plaintiff proved these facts, and also that, at the time of the entry of this judgment, suits were pending against the New York Supply Company, and that judgments were entered at or about that time for a considerable amount. The court found from this evidence that, at the date of the offer of judgment, the New York Supply Company was insolvent and unable to pay its debts, and'that such condition was known to the treasurer and general manager thereof at the time when they authorized said offer of judgment to be made, and also to the defendant; and that said offer was made in contemplation of such insolvency; and granted the relief asked for in the complaint.

It is urged upon this appeal that the defendant’s motion to dismiss the complaint should have been granted because the complaint did not state a cause of action, nor was such a cause of action .made out by the evidence. It is urged that it was neither alleged nor proved that the plaintiff, who was appointed receiver in a creditor’s action to sequestrate property of the judgment debtor, the New York Supply Company, ever gave or published notice of his appointment as receiver, and that before publishing such notice he could not as such receiver maintain this action. And reliance is placed upon the provisions of 2 Revised Statutes, 469, section 70, which is to the effect that receivers, immediately after their appointment, shall give notice which shall contain the same matters as are required by law in notices to trustees of insolvent debtors; and by section 72 it is provided that after.the first publication of the notice'every person in possession of any property belonging to such corporation and indebted to such corporation shall account and answer for such debt, and for the value of such property, to said receivers. It is urged that the allegation of the complaint being that the plaintiff wras a permanent receiver, this provision applied, and he could not maintain this action. It is true that the complaint did aver that the plaintiff was a permanent receiver, but no proof was given, and the evidence, which was admitted without objection, showed that he was a temporary receiver, and tlie court, upon the decision of the case, conformed the pleadings to the proof in that regard and held that the provision did not apply to a temporary receiver.

It is urged, however, upon the part of the appellant, that there is no distinction in this regard between temporary and permanent receivers, because section 1788 of the Code, relating to temporary receivers, provides that a temporary receiver has power to receive debts, etc., of a corporation, and also that a temporary receiver must qualify as prescribed by law for the qualification of a permanent receiver.

It is undoubtedly the fact that in referring’ to qualifications no reference is made to the proceedings of the receiver after his appointment, but rather to those things which he must do in order that he may act at all. Section 66 of the Revised Statutes provides what a receiver shall do in order to qualify himself for his office. It provides that a receiver, before entering upon the duties of his appointment, shall give security jo the People in such penalty as the court shall direct, conditioned for the faithful discharge of his duties as receiver, and accounting for all moneys received, etc. And it is to this provision that the Code refers when it provides that a temporary receiver must qualify as prescribed by law for the qualification of a permanent receiver.

The objection that the Attorney-General does not appear in the action in any way, and that no papers appear to have been served on him officially, certainly is not well taken. A receiver is not bound to give the Attorney-General notice of every suit which he may be authorized by the court to commence. Notice of all proceedings in respect to the dissolution of a corporation, and the distribution of its assets, is required to be given to the Attorney-General by the receiver. But chapter 378 of the Laws of 1883 cannot be given any such extended interpretation as is claimed by the appellant.

The further objection is raised that the New York Supply Company should have been made a party to the action. It is sufficient to say that such objection appeared upon the face of the complaint, and, not having been taken by demurrer, cannot' be raised by answer. (Code, §§ 198, 499.)

The claim that there was no allegation of any other existing creditors of the New York Supply Company at the time of the alleged offer of judgment, or of any injury occurring to any creditors by reason of sucli offer, and that, therefore, the complaint is defective, is not well founded. The allegation is that the company ivas insolvent, and that its officers knew it, and the defendant knew it, and that this offer was made in contemplation of insolvency. It appeared from the evidence in the action that suits were pending, and that judgments were about to be entered at the time of the offer, and yet it is claimed upon this argument that there is no evidence that any creditors were injured by reason of the alleged offer of judgment. It is claimed that several judgment rolls were offered in evidence, hut no judgment docket or record or other evidence showing that any such judgment remained unpaid or was unsatisfied; and that unless it appeared that some of the creditors were injured by the offer of judgment, the action could not he sustained; and further, that there was no evidence in the case that the company was insolvent at the time of the offer, nor that the offer was made in contemplation of such insolvency, but, on the contrary, was solvent at the time of making such offer, and so represented to the defendants.

This is giving a force to the representations of the officer of an insolvent corporation which has certainly not as yet received the sanction of courts of law. Judgments were being entered against it, and it was unable to meet its obligations, according to the proof presented; and even the defendants in this action, upon their execution, were unable to realize their judgment. If this does not show a condition of insolvency then it is difficult to see what character of proof would establish such fact.

The evidence in the case seems to fully establish the findings of the court below, and the ju Jgment appealed from should be affirmed, with costs.

O’Brien and Parker, JJ., concurred.

Judgment affirmed, with costs.


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    Sarah E. Mellen, Respondent, v. William C. Banning, Sole Surviving Executor of the Last Will, etc., of Abner Mellen, and Others, Appellants.

      Appeal — affirmance, if error be not affirmatively shown.

    An order appealed irom is presumed to be correct, and until the papers upon appeal show that it should not have been granted, it necessarily devolves upon an appellate court to affirm the order.
    Appeal by the defendants, William O. Banning and others, from an order of the Supreme Court, made at the New York Special Term, filed in the office of the clerk of the county of New York on the 8th day of December, 1893, allowing plaintiff to serve an amended and supplemental complaint herein, in -place of the amended complaint already served, and from each and every part-of said order except the potion which directed that the order heretofore entered herein and dated November 21, 1893, and filed November 22, 1893, be vacated and set aside for irregularity under-rule 3 of this court, with ten dollars costs of motion, to be paid by the plaintiff to adult defendants or to their attorney herein.

      Geo. Ilill, for the appellants.

      Henry Daily, Jr., for the respondent.
   Van Brunt, P. J.:

If the papers upon which this appeal has been presented sustained the allegations of the counsel for the appellants,- that the amended and supplemental complaint set up a new and different cause of action from that contained in the amended complaint, it seems to us that the order appealed from should be reversed. But the difficulty with the appellants’ case, as contained in the papers is, that it does not appear what the cause of action set up in the amended complaint was. It is true that, in the affidavits presented by the appellants in opposition to the motion to serve the amended and supplemental complaint, various grounds of objection thereto are set up, amongst others, that the cause of action set up in the proposed amended and supplemental complaint is inconsistent with tiie canse of action, set forth in' the original and amended complaint, and that the plaintiff abandons the action as an action for the construction of the will, alleging that the power of sale contained in the will is void, and now seeks to recover a judgment admitting the power of sale to be valid, and that the power has been extinguished by the acts of the devisees named in the will.

If these objections appeared upon the papers presented upon the motion it is doubtful whether the court would have been justified in making the order. But as the amended complaint, .then already served, does not appear in the papers upon appeal, it is impossible for the court to tell whether these grounds of objection are well founded or not. The order appealed from is presumed to be correct, and until the papers upon appeal show that it should not have been granted it necessarily devolves upon this court to affirm the same.

The order should be affirmed, with ten dollars costs and ’ «í disbursements.

O’Brien and Parker, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.