author: Merwin, J.:

text:
    MARY A. CARAHER, as Executrix, etc., and Another Respondents, v. THE ROYAL INSURANCE COMPANY OF LIVERPOOL, Appellants. SAME, Respondents, v. THE HOME INSURANCE COMPANY, Appellant. SAME, Respondents, v. THE SPRINGFIELD FIRE AND MARINE INSURANCE COMPANY, Appellant. MARY A. CARAHER, Executrix, etc., Respondent, v. THE STANDARD FIRE INSURANCE COMPANY, Appellant. SAME, Respondent, v. THE NEWARK FIRE INSURANCE COMPANY, Appellant. SAME, Respondent, v. THE AMERICAN CENTRAL INSURANCE COMPANY, Appellant.

      Insurance — loss by fire — when a building is “unoccupied ” — tohat is not a levy on land— “ loss payable to mortgagee ” — evidence as to cost of building — trustee buying property of the corporation.

    Where a witness, called to testify in reference to the cost of rebuilding a structure destroyed by fire, has given his estimate, and the court has had the benefit of his judgment in the matter, he should not be allowed to answer the question.“Would you be willing to rebuild this building at these figures? ”
    A. trustee of a corporation, a party defendant, individually, in a foreclosure action in which he has purchased the mortgaged property of the corporation at public sale, who pays from his own means apparently the full value of the property, enters into and continues in possession of the property without any antagonistic action by the corporation, and causes the property to be insured, is not, in case the premises are destroyed by fire, subject to the defense, in an action brought to recover from the insurance company the value of the property destroyed, that the interest which he acquired in the property was not that of unconditional and sole ownership, but that he held the same as trustee for the benefit of the corporation.
    Under what circumstances a church can be said to be unoccupied, under the provisions of a policy of fire insurance thereon, considered.
    A policy of insurance, containing a condition that the policy should be void if an execution should be levied on the property insured, is not rendered void by the issuing of an execution to the sheriff, followed by the giving of a notice of sale of the land on which the property insured is situated.
    The provision in a policy of insurance that the loss, if any, should be payable to a mortgagee of the insured premises does not constitute part of the policy, but is simply an indorsement thereon, and is not essential to the validity of any other policies covering the same property, under the terms of an indorsement- “ other insurance permitted concurrent in form herewith.”
    Appeal by the Royal Insurance Company from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Oneida county on October 20, 1890, and like appeals by the other several defendants above named from like judgments in favor of the plaintiff in the several actions above named.
    These actions were upon policies of insurance and were tried together, the evidence being deemed to be given in all the cases. There were separate reports and judgments and notices of appeal.
    The defenses litigated at the trial were, (1) that the property was not of the value alleged; (2) that other policies of insurance, not concurrent in form, had been obtained by plaintiff’s testator upon the property without consent, as required by the policies; (3) that the interest of plaintiff’s testator in the property insured was not the entire, unconditional and sole ownership for his own use and benefit; (4) that the building insured, for many months prior to the fire was vacant or unoccupied without consent of the companies; (5) that prior to the fire the insured property had been levied upon by the sheriff by virtue of judgments and executions against the assured.
    The policy issued by the Royal Insurance Company was dated April 2, 1881, and insured Patrick Caralier in the sum of $5,000, against loss or damage by fire for three years on the property described as follows: “ On the brick church edifice, with slate roof, known as the £ St. Patrick’s Church,’ situate corner of Columbia and Huntington streets, Utica, N. Y.” This policy contained, among others, the following conditions: ££ If the assured shall have, or shall hereafter make, any other insurance on the property hereby insured, or any part thereof, without the consent of the company written hereon, * * * or if the property be sold or transferred, or any change take place in the title or possession (except in case of succession by reason of the death of the' assured), whether by legal process, or judicial decree, or by voluntary transfer, or conveyance or if this policy shall be assigned before a loss, without the consent of the company indorsed hereon, or if the interest of the assured in the property, whether as owner, trustee, consignee, factor, agent, mortgagee, lessee or otherwise, be not truly stated in this policy; f * * then, and in every such case, this policy shall be void.” “ If the interest of the insured in the property be any other than the entire, unconditional and sole ownership of the property for the use and benefit of the assured, or if the building insured stands on leased ground, unless the lease be perpetual, it must be so represented to the company, and so expressed in the written part of this policy, otherwise the policy shall be void.”
    This policy also contained the following indorsements:
    “ Other insurance permitted concurrent in form herewith.
    “ Loss, if any, payable to L. M. Thompson, executor to the extent of his mortgage interest.”
    The policy issued by the Standard Fire Insurance Company insured “ Rev. Patrick Caraher for the term of three years from the 20th day of January, 1888,” in the sum of $3,500 against loss or damage by fire on the following described property: “$3)500 on his brick edifice, with slate roof, known as ‘ St. Patrick’s Church,’ situate on the south-east .corner of Huntington and Columbia streets, Utica, N. Y.”
    This policy was in the form known as the “ Standard Fire Insurance Policy of. the State of New York,” and contained, among others, the following conditions:
    “ This company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs, and the loss or damage shall be ascertained or estimated according to such actual cash value, with proper deduction for depreciation, however caused, and shall in no event exceed what it would then cost the insured to repair or replace the same with material of like kind and quality.”
    “ This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof, or if the interest of the insured in the property be not truly stated herein.”
    “ This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insrirance, whether valid or not, on property covered in whole or in part by this policy . * * * or if the interest of the insured be other than unconditional and sole ownership * * * or if any change, other than by the death of an insured, take place in the interest, title or possession of the subject of insurance (except change of occupants without increase of hazard), whether by legal process or judgment or by voluntary act of the insured or otherwise * * * or if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied and so remain for ten days.”
    There was written upon this policy the words “ other insurance permitted without notice until required.”
    The policy issued by the Newark Fire Insurance Company insured ■“ Rev. Patrick Caraher for the term of three years from the 26th day of October, 1887,” in the sum of $3,000 against loss or damage by fire to the following described property: “$2,500 on his brick church édifice, with slate roof, known as St. Patrick’s Church, situate •on the south-east corner of Huntington and Columbia streets, Utica, N. Y., $500 on organ therein.”
    This policy contained the same conditions as the Newark company policy, and it had on it the clause in writing: “ Other insurance permitted -without notice until required.”
    The policy issued by the Home Insurance Company insured “ Patrick Caraher against loss or damage by fire, to the amount of five thousand dollars, on the brick church edifice, with slate roof, known as ‘ St. Patrick’s Church,’ situate corner of Columbia and Huntington streets, Utica, N. Y.,” for the term of three years from April 2, 1887.
    This policy contained, among others, the following conditions: '“ If the assured shall have, or shall hereafter make, any other insurance on the property hereby insured, or any part thereof, without the consent of the company written thereon; or if the above-mentioned premises shall be occupied or used so as to increase the risk, or become vacant or unoccupied, without notice to and consent of this company in writing, * * * or if the property be sold or transferred, or any change takes place in title or possession (except by such succession by reason of the death of the assured), whether by legal process, or judicial decree, or voluntary transfer or conveyance ; or if this policy shall be assigned before a loss, without the. consent of the company indorsed hereon, or if the interest of the assured in the property, whether as owner, trustee, consignee, factor, agent, mortgagee, lessee, or otherwise, be not truly stated in this-policy, * * * then, and in every such case, this policy shall be void.”
    “ If the interest of the insured in the property be any other than the entire, unconditional and sole ownership of the property, for the use and benefit of the assured, or if the building insured stands on leased ground it must be so represented to the company, and so-expressed in the written part of this policy, otherwise the policy shall be void.”
    “ The cash value of property destroyed or damaged by fire shall in no case exceed what would be the cost to the assured, at the time of the fire, of replacing the same.”
    This policy also contained the following indorsements:
    “ Other insurance permitted, concurrent in form herewith.”' “ Loss, if any, payable to L. M. Thomson, executor, to the extent of his mortgage interest.”
    The policy of the Springfield Fire and Marine Insurance Company insured “ Patrick Caraher against loss or damage by fire, to the amount of five thousand dollars on the bidck church edifice, with slate roof, known as the ‘ St. Patrick’s Church,’ situate corner of Columbia and Huntington streets, Utica, N. Y.,” for the term of three years from April 2,1887.
    This policy contained, among others, the following conditions:
    “ If the assured, in a written or verbal application, makes any erroneous representation, or omits to make known any fact material to the risk; or if the assured shall have, or shall hereafter make, any other insurance on the property hereby insured, without the consent of the company written hereon, * * * or if an execution be levied on the property insured, or foreclosure of mortgage be begun, or the property be sold under a deed of trust,, or if the assured shall be adjudged a bankrupt, or if the property-insured be assigned under any bankrupt or insolvent laws, or if any change takes place in the title or possession of the property, whether by sale, transfer or conveyance, legal process or judicial decree; or the policy is assigned without consent of the company indorsed hereon; or if the assured is not the sole, absolute and unconditional owner of the property insured; or (if said property be a building ór buildings), of the land on which such building or buildings stand, by a title in fee simple, and the interest of the assured be not truly stated in the policy ; * * * or if the premises lieieby insured shall become vacated by the removal of the owner or occupant, and so remain for a period of more than thirty days, without notice to the company, and consent indorsed thereon; * * * then, and in every such case, this policy shall be void.”
    This policy also contained the following indorsements:
    “ Other insurance permitted concurrent in form herewith.”

      “ Loss, if any, payable to L. M. Thomson, executor, to the extent of his mortgage interest.”
    The policy of the American Central Insurance Company insured “ Rev. Patrick Caraher for the term of three years from the 23d day of August, 1887,” against damage by fire to the amount of $3,000 “ on the brick church building, with slate roof, situate on the south-east corner of Columbia and Huntington streets, Utica, N. Y.” This policy contained the same conditions as the Newark Company policy, and on it was the clause, in writing, “ Other concurrent insurance permitted.” ' ■
    On or about the 15th of March, 1871, the “ St. Patrick’s Church, Utica, N. Y.,” was duly incorporated as a Roman Catholic church or society under the laws of this State, and on the 18th of March, 1871, it received from John McCloskey a warranty deed of the premises upon which the church stood at the time of the fire. At the time of the execution of this deed, Patrick Caraher was the pastor of the church, and continued to be such until about October 1, 1888, and during that time he was, as pastor, ex officio one of the trustees of the corporation. On the 14th of September, 1881, the corporation executed and delivered to the Mutual Life Insurance Company o*f New York a mortgage upon the premises for $21,000. On the 27th of December, 1886, this mortgage not being paid, an action to foreclose it was commenced against the corporation and several other defendants, among whom was the said Patrick Caraher. In this action the usual judgment of foreclosure was entered on the 19th of February, 1887, and under it a sale of the premises was made on the 15th of March, 1887, for the sum of $26,700 to Patrick Caraher, he being the highest bidder therefor. On the 2d of April, 1887, in pursuance of the sale, the property was deeded to Caraher, he paying therefor the full amount of his bid with moneys of his own. Caraher, on receiving the deed, as the referee found, took possession of the property, and so remained down to the time of the trial, and retained and held his title thereto. On the 8th of November, 1889, the church edifice and its contents were substantially destroyed by fire, without any fault on the part of Caraher.
    The referee also found that, at the time of the execution and delivery of the policies, and during all the time down to and until after the destruction of the property by fire, the interest of Caraher in the property insured was the entire, unconditional and sole ownership thereof for the use and benefit of the assured; that the actual cash value of the damage to the property and the actual loss stiffered was $25,500; that the building in question did not become and was not, after the issuing of the policies down to the time of the fire, vacant or unoccupied ; that all the policies were concurrent in form.
    It further appears that, on May 21, 1889, John P. Kennedy recovered in the Supreme Court a judgment against Patrick Caraher for $5,319.28, which was duly entered and docketed in Oneida county on that day; that on the 25th of June, 1889, William J. Caraher obtained in the Supreme Court a judgment against Patrick Caraher for $215.35, which was duly entered and docketed on that day in Oneida county; that on or before October 19, 1889, executions in due form were issued on said judgments against the property of Patrick Caraher and delivered to the sheriff of Oneida county, and he thereupon advertised the said real property to be sold on the 30th of November, 1889, stating in his notice that he had seized and taken all the right, title and interest of Patrick Caraher in the real estate in question.
    Since the trial Patrick Caraher has died, and the executrix in his will has been substituted in his place as plaintiff. Caraher, after his purchase, gave a mortgage on the property, and the mortgagee is a party plaintiff in the cases against the Royal, the Home and the Springfield companies.

      A. H. Sa/wyer and I. W. Ames, for the appellants.

      WilUmn Kernan, for the respondents.
   Merwin, J.:

Two questions are presented which are involved in each of the cases —- first, that the referee' erred in finding the actual loss and damage to be $25,500; and, second, that the interest of Caraher in the property was not that of unconditional and sole ownership, and that, therefore, the policies by their terms were void.

(1.) The evidence was conflicting upon the subject of the amount of the loss. Witnesses upon either side made their estimates and stated the manner in which they arrived at results. We are of the opinion that the evidence warranted the conclusions of the referee upon the subject. In this connection the defendants claim that the referee erred in sustaining the objection of the plaintiffs to the question put by defendants to one of their witnesses: “Would you be willing to rebuild this building at these figures ? ” The witness was a carpenter and builder called by the defendants, and he had testified to making measurements and an estimate of the cost of rebuilding, and had stated what that estimate was, and what, in his judgment, was the amount of the damage to the building by the fire. He was then asked the question above set out. What the witness would be willing at the time of the trial to do was not the test. He had given his estimates, and the court already had the benefit of his judgment in the matter. The objection was properly sustained.

(2.) The proposition that the interest of Caraher was not that of unconditional and sole ownership is based on the circumstance that, at the time of his purchase at the foreclosure sale, he was one of the trustees of the corporation which had given the mortgage.

The claim of the defendants is that Caraher, being a trustee, could not purchase for his own benefit, and that the interest which he acquired in the property was not that of unconditional and sole ownership, but that he thereafter held the same as a trustee for the benefit of the church. The plaintiffs claim that the possibility that the corporation might have the right in equity to pay Caraher what he had paid for the property, and compel him to convey to the corporation, is no defense to these actions; that this was a right which, if the corporation had it, it might of might not enforce at its option, and that the defendants cannot take advantage of it.

Many cases are cited by the learned counsel for the defendants to the general proposition that a trustee cannot deal with trust property to his own benefit, although he may hold it as security for wliat he has advanced. It is said that if he purchases such property the cestui que t/rust has the option of taking the benefit of the purchase. In Duncomb v. N. Y., H. and N. R. R. Co. (84 N. Y., 199) it is said the beneficiary may avoid the act of the trustee, but cannot do so without restoring what it has received. The cases cited by the counsel do not discuss the effect of such a situation upon a case like the one here in controversy.

The counsel for plaintiffs refers us to Olcott v. Tioga Railroad Company (27 N. Y., 546) and Bicknell v. Lancaster Insurance Company (58 id., 677) as supporting his view of the matter.

In Olcott v. Tioga Railroad Company it was held (p. 567) that a purchase of trust property by a trustee at public sale is good at law, and is in equity not void, but voidable only at the election of the beneficiary, and that the purchase cannot be impeached in a suit to which the beneficiary is not a party. Judge Selden says: “The mortgagor (the beneficiary) is the party most directly interested in the question and the validity of the sale cannot be impeached without its consent, or at least without giving it an opportunity to be heard.”

In Bicknell v. Lancaster City and Country Fire Insurance Company (1 Thomp. & Cook, 215) the action was on a policy which provided that the company should not be liable for loss for property owned by any other party unless the interest of such party was stated in the policy. The defendant alleged that Thompson & Judd were the equitable owners of the property, and that their interest was not stated in the policy. The plaintiff bid off the property at a receiver’s sale, and the defendant on the trial offered to prove that the purchase at such sale, although in plaintiff’s name, was in point of fact for Thompson & Judd. This being objected to was ruled out. The General Term sustained the raling, it being' said that the plaintiff was the absolute owner so far as the defendant was concerned. This was affirmed in the Court of Appeals (58 N. Y., 677), it being said that plaintiff “had the legal title as against the whole world, save, perhaps, Thompson & Judd and their creditors, and as the owner of the legal title he could insure.”

In Noyes v. The Hartford Fire Insurance Company (51 N. Y., 668) the defendant insured plaintiffs for $3,000 on a quantity of cotton in the gin-liouse. The policy contained a condition that “if the assured is not the sole and unconditional owner of the property insured” the policy should be void. It appeared that plaintiffs made an arrangement with one Flournoy to operate his plantation in Arkansas for one year, they to furnish certain supplies and Flournoy to attend to the work, the crop of cotton to be delivered to plaintiffs at the river bank for transport to market and sale, and the proceeds to be applied first to reimburse the plaintiffs for advances and the balance to be divided equally between the plaintiffs and Flournoy. While iii the gin-house a portion of the cotton was destroyed by fire. It was held: “ That by the terms of the agreement plaintiffs were not necessarily the sole and unconditional owners of the cotton, but that .they were either partners or tenants in common with Flournoy in carrying on the plantation. But it appearing that plaintiffs had expended more than the whole crop of cotton was worth, and as, therefore, they were entitled, under the contract, to the entire proceeds, and Flournoy had no-interest therein within the spirit and meaning of the policy, they were the sole and unconditional owners and entitled to recover the loss.”

In Carrigan v. Lycoming Fire Insurance Company (53 Vt., 418), it was held that a conditional sale- by the plaintiff, he remaining in possession, did not prevent his interest being the entire, unconditional and sole ownership for his use and benefit as required by the policy, it being said that the vendees, until they had complied with the conditions entitling them to a conveyance, had no more interest in the propei’ty than a stranger. So it has been held that an outstanding lease does not prevent the existence of such ownership. (Ins. Co. v. Haven, 95 U. S., 212; Dolliver v. St. Joseph Ins. Co., 128 Mass., 315.)

In the present case, Caraher purchased at public sale upon a foreclosure judgment, to which he was individually a party defendant, paying from Ms own means the full value apparently of the property and immediately entered into possession, and so continued until after the fire without any antagonistic action on the part of the corporation. If the corporation had an election, it failed to exercise it. The proceeds of the sale were applied to the benefit of the corporation.

Caraher, when he obtained the insurance, informed the agents of the respective companies that he had purchased the property. So that the companies knowingly dealt with him, as individual owner.

The finding of the referee on this subject should not be disturbed.

( 3.) The further proposition is presented that the building insured became vacant or unoccupied on or about October 1, 1888, and so remained without consent of the insurance companies down to the time of the fire, and that, therefore, under the provisions of the policies in several of the cases, the insurance became void.

The referee found as matter of fact that the building did not become vacant or unoccupied.

Mr. Caraher, from the time he purchased the property, held therein public religious service until October, 1888. Soon after that time another pastor was appointed for the congregation and it worshipped at another place. No religious service was held in the church after October, 1888. There is evidence tending to show that Mr. Caraher quit holding services on account of ill health, and that this disability continued until after the fire; that, during all the time service was not held, and down to the fire the church was in the care of the sexton, who had been such for several years, and that he substantially took the same care of it that he did when service was held. Mr. Caraher continued all the time to reside in the dwelling in the same yard, and within fifteen feet of the church; and he testifies that he went frequently into the church; that the ornaments and vestments used in the service of the church remained there down to the fire, and that at the time of the fire there was ■everything in the church necessary for services. It appears that some months before the fire the gas meter was taken out of the church by the gas company.

The question seems to be whether, within the contemplation of the contract, the building became unoccupied in October, 1888, by reason of the cessation therein of church services. There was no warranty that church service should continúe to be held there. The fact that the insurance was to Caraher as individual owner rather rebuts the idea that the religious corporation and society that had previously owned and occupied were expected to continue to occupy for an indefinite period.

A condition of this kind is to be construed in view of the situation and character of the property insured and in view of contingencies as to its use within the reasonable contemplation of the parties. (Whitney v. Blade River Ins. Co., 72 N. Y., 120.) The occupancy to be expected was not such as a church corporation that had procured insurance would be expected to have, but such occupation as an individual would have who had, for reasons satisfactory to himself, purchased the property.

The case of Herrman v. Adriatic Fire Insurance Company (85 N. Y., 162), is strongly relied on by the appellants. There the plaintiff had procured an insurance upon his dwelling-house and thereafter left it for the winter, leaving it, however, furnished and in charge of a servant who lived near and who opened and aired it once a week, and the plaintiff also visited it once a fortnight. While in this situation it ivas destroyed by .fire, and it was held that it was not occupied within the meaning of the condition of the policy. It was said that for a dwelling-house to be occupied, within the meaning of the policy, it must be used by human beings as their customary place of abode. That case would seem to be clearly distinguishable from the present. And so is the case of Halpin v. Phenix Insurance Company (118 N. Y., 165). There the property insured was described in the policy as “ occupied as a morocco factory.” This indicated the use contemplated by the parties to the contract, and there having become a total and absolute suspension of business, it was held that the property became unoccupied within the meaning of the policy. In Halpin v. Insurance Company of North America (120 N. Y., 73), it is said .that forfeiture will not be permitted upon equivocal or doubtful language. When the terms used permit more than one construction, that will be adopted which supports the validity of the policy. (Darrow v. Family Fund Society, 116 N. Y., 537.)

Oaraher upon his purchase became owner and occupant. Whether he ceased to occupy, or whether the property became vacant or unoccupied within the meaning* of the policy, was, under the circumstances of this case, a question of fact and the finding of the referee should not be disturbed.

(4.) The policy issued by the Springfield Company contained the condition that the policy should be void if an execution be levied on the property insured, and the other policies contained conditions rendering them void if any change take place in the interest, title or possession of the property whether by legal process or judgment or by voluntary act of the insured or otherwise. It is claimed by the appellants that the issuing and delivery to the sheriff of executions on the property against Oaraher, and the advertisement of sale by the sheriff amounted to a seizure and levy and avoided the policies.

There was no possession, in fact, taken by the sheriff. It is not claimed that the recovery of the judgments simply made the policies void. It has been, in effect, held to the contrary. (Chamberlain v. Ins. Co. of N. A., 20 N. Y. St. Rep., 546, and cases cited.) Nor was the issuing of the execution, followed by the notice of sale, a levy upon the property within the meaning of the policy.

This was, in substance, held in Colt v. Phenix Insurance Company (54 N. Y., 595). It was there said that the “ levy of an execution ” referred only to a levy on personal property, as a levy upon real estate is unnecessary and is now unknown to the law. (See, also, 1 May on Insurance, § 274.) It .follows that the issuing of executions and notice of sale did not affect the policies.

(5.) The policy issued by the Royal company on April 2,1887, had upon its face in writing the following -clauses or indorsements: Other insurance permitted concurrent in form herewith.” u Loss, if any, payable to L. M. Thomson, executor, to the extent of his mortgage interest.”

The policies issued by the Home and the Springfield at the same date had similar clauses. The policy of the American Central, issued on the 28d of August, 1887, had the clause “ Other concurrent insurance permitted,” but no clause as to loss being payable to the mortgagee. The policy of the Standard company, issued January 20, 1888, and of the Newark, issued October 26, 1887, had the clause, “ Other insurance permitted without notice until required,” and no clause as to the payment of the loss to the mortgagee.

It is claimed by the Royal, Home and Springfield companies that their policies are void because other policies were obtained that did not have the loss payable to the mortgagee; and it is claimed by the American Central that its policy is void because other policies were obtained or held that did have the loss payable to the mortgagee. The argument is, that there was, in effect, a warranty by the assured that all other insurance should be concurrent in form, and that this warranty was broken in regard to the three companies first named by the failure to make Ihe loss in the other cases payable to the mortgagee, and was broken in regard to the American Central by the fact that the loss in the first three cases was so payable.

This reasoning is founded on the idea that the provisions as to other insurance, and as to the payment of the loss, are parts of the policy, while, in fact, they are not. They are simply indorsements, and treated as such, and made by the companies in pursuance of provisions of the policy requiring indorsements in regard to other insurance, or in regard to the payment of loss to other than the assured. The provision as to the payment of loss didn’t refer to the other permitted insurance, but to the loss on the policy upon which the indorsement was made. Besides, it is not made clear that other insurance would fail to be concurrent in form, because the loss, if any, in the one case, would be payable to the assured, and in the other the company had, by indorsement, assented to its payment to a mortgagee as his interest might appear. The subject of the insurance and the interest insured would be the same in each case. The insurance in all the cases would run together.

( 6.) The policy issued by the Newark company insured Mr. Caraher to the amount of $500 upon the organ in the churóli. The referee allowed the plaintiff upon this the sum of $433.33, with interest from February 1,1890, and this forms part of the judgment against the Newark company. The claim of that company is that there is no proof that Mr. Caraher had any title or interest in the organ. There seems to be no answer to this claim. The only proof of title or interest given by Caraher is the deed upon the foreclosure. The organ was not included in that or in the mortgage by the corporation. It was not real estate. The possession that Caraher had was under the deed and would not afford any presumption of ownership of the organ. The amount allowed for the organ must, therefore, be deducted from the recovery.

It is suggested on the part of the appellants that the altars in the church were personal property, and, therefore, not covered by the insurance. We are, however, of the opinion that they were part of the real estate,

No other cpiestions are presented. It follows that all of the judgments, except the one against the Newark company, should be affirmed, with costs. The judgment against the Newark company should be modified by deducting thei’efi’om the sum of $433.33, with interest from February 1, 1890, and as so modified affirmed, without costs upon this appeal to either party.

Hardin, P. J., and Martin, J\, concurred.

So ordered.


source: Caselaw Access Project

author: Martin, J.:

license: Public Domain

text:
    LIDA G. CHAMBERLAIN, Appellant, v. ALLEN CHAMBERLAIN, Respondent.

      Divorce — alimony — an application therefor must be made before, and, be included in, the final judgment — after judgment the cou/rt has no power to modify the judgment.

    In 1889 a wife brought, an action against her husband for a divorce upon the ground of adultery, in which she recovered judgment. The complaint did not demand alimony nor any allowance for the maintenance of the children.
    In 1890 she applied to the court to have the judgment modified so as to provide for the payment to her by the husband of certain sums for the education and maintenance of the children.

      Held, that the application was properly refused as the court had no power after the entry of final judgment to modify it.
    That the Code of Civil Procedure (§ 1759, sub. 2, and § 1771) now requires that an application for an allowance in the nature of alimony must be made befoi'e, and be contained in, the final judgment where the action is for a divoi'ce.
    That it is otherwise where the action is for a separation.
    That the former rule, found in section 59, title 1, chapter 8, part 2 of the Revised Statutes, allowing such an application to be made after judgment in an action for a divorce, was abrogated by the Code of Civil Procedure.

      Wells v. Wells (10 N. Y. St. Rep., 248), not followed.
    Appeal by the plaintiff Lida Gr. Oliambei’Iain from au oi'der of the Supreme Court, entered in the office of the clerk of the county of Broozne on the 4tlz day of February, 1891, denying a motion to amend the judgment in this action by inserting a provision therein requiring the defendant to pay to her certain sums for the education and maintenance of the children of the parties.
    The action was brought in the year 1888, and the motion was made in the year 1890.

      H. 8. Williams, for the appellant.

      A. D. Wales, for the respondent.
   Martin, J.:

This action was for divorce. The judgment granted the plaintiff an absolute divorce and the custody of their two infant children. The plaintiff sought by motion at' Special Term to obtain an order modifying it so that it should provide for the payment by the defendant to the plaintiff of certain sums for the support, care, maintenance and education of the children. The plaintiff’s complaint asked for a judgment of divorce and the custody of the children, but contained no prayer for alimony or for any allowance for such care and maintenance. The Special Term denied the appellant’s motion upon the sole ground that it had no authority to grant the relief sought. Thus the only question before us is, whether the court possessed the power to order such a modification of tlie judgment.

It is well settled that the courts of this State have no common-law jurisdiction over the subject of divorces, and that their authority is confined to the exercise of such express and incidental powers as are conferred by statute. (Erkenbrach v. Erkenbrach, 96 N. Y., 463.) Therefore, we must seek for authority to modify this judgment, if it exists, in some statute by which the power to do so was expressly or incidentally conferred. Do the statutes as they now stand, or as they stood when this judgment was entered, confer such authority? This question is dependent for its solution upon the construction of the present statutes relating to this subject, as there has been no change since this action was commenced.

Before the adoption of the last eight chapters of the Code of Civil Procedure, actions like this were regulated by the provisions of the Revised Statutes. Section 59, title 1, chapter 8, part 2 of the Revised Statutes provided : “ In any suit brought by a married woman for a divorce, or for a separation, from lier husband, the court in which the same shall be pending may, during the pendency of the cause, or at its final hearing, or afterwa/rds, as occasion may require, make such order, as between the parties, for the custody, care and education of the children of the marriage, as may seem necessary and proper, and may, at any time thereafter, annul, vary or modify such order.”

Under the provisions of this statute it wras held that, after a final decree, an order might be granted in such an action making provision for the care, custody and education of the children of the marriage, and that there was no distinction in this respect between an action for separation and one for an absolute divorce. (Erkenbrach v. Erkenbrach, supra; Washburn v. Catlin, 97 N. Y., 623.) That statute was, however, repealed by chapter 245 of the Laws of 1880.

The Code of Civil Procedure now contains the only existing statutes relating to the subject. It is provided by section 1759, subdivision 2, that where the action is brought by the wife, “ The court may, in the final jxodgment dissolving the marriage, require the defendant to provide suitably for the education and maintenance of the children of the marriage, and for the support of the plaintiff, as justice requires, having regard to the circumstances of the respective parties.” While, section 1771 declares, “ Where an action is brought by either husband or wife, as prescribed in either of the last two articles (being articles two and three, the former relating to an action for divorce, and the latter to an action, for separation), the court must, except as otherwise expressly prescribed in those articles, give, either in the final judgment, or by one or more orders made from time to time before final judgment, such directions as justice requires between the parties for the custody, care and education of any of the children of the marriage. Where the action was brought, as'prescribed in article third of this title, the court may, by order, at any time after final judgment, annul, vary or modify such a direction.”

These sections of the Code are a revision of sections 45 and 59 of title 1, chapter 8, part 2 of the Revised Statutes. Mr. Throop, in his notes to those sections of the Code, states that sections 45 and 59 have, in the revision, been so amended as to make them conform to the theory of the decision of the Court of Appeals in Kamp v. Kamp (59 N. Y., 212), where it was lield that, in an action for divorce a vinculo, the jurisdiction of the court over the subject-matter of the action, and over the parties in all respects to matters involved in it, terminates with the entry of final judgment therein, save for the enforcement or correction of the judgment; that where the action is by the wife, her claim for alimony is to be determined by the situation of herself and husband at the time of making the decree; that, if no provision for her is made therein, it is to be presumed that the court decided adversely to her claim, and .the decree is equally final as if such provision had been made; and that the court has no power, on subsequent application showing circumstances thereafter arising, to award alimony.

Thus, if we rely upon the notes to those sections as evidence of the intent of the amendments, it would seem that it was intended to change the rule as it existed under the former statutes, so that, after judgment in an action for an absolute divorce, the judgment could neither be modified nor an order made so as to provide for the care, custody and education of the children if not provided for by such judgment, or by changing the provisions of the judgment in that respect, and by applying to such a case the same rule as formerly existed in regard to alimony for the wife under the decision of Kamp v. Kamp. This intent is made more manifest by the change made in the language of the statute. The former statute provided, that in such an action the court might, during the pend-ency of the action at its final hearing, or afterwards, make the order. The statute as it now stands provides that the court may make such an order before final judgment (§ 1771); and such a provision may also be included in the final judgment (§ 1759, sub. 2). There is now no provision in the statute authorizing the making of such an order after judgment. Thus it becomes quite evident that it was the intention of the legislature to change the statute as stated in Mr. Throop’s notes to the Code. This is rendered more obvious by the last paragraph of section 1771, which provides, where the action is for a separation that the court may, at any time after final judgment, vary or modify such direction, but makes no such provision when the action is for a divorce.

It is true that in Wells v. Wells (10 N. Y. St. Rep., 248) a contrary doctrine was held; but an examination of that case discloses that the court construed section 1771 as though it expressly provided that an order might be granted in an action for a divorce annulling, varying or modifying a direction as to the care, custody and education of the children contained in a judgment in such actions. It is quite manifest that the fact that the last paragraph of that section is applicable only to an action for a separation, and not to an action for a divorce, escaped the attention of the court. This misapprehension is so apparent, from reading the opinion in that case, that we do not think it should be followed.

The other cases cited by the appellant were decided under the statute as it existed before the adoption of that portion of the Code which relates to this subject. These considerations lead us to the conclusion that the order appealed from should be affirmed.

Hardin, P, J., and Merwin, J., concurred.

Order affirmed, without costs to either party.


author: Martin, J.: Mrravin, J.:

text:
    ABRAM SMITH, Appellant, v. ALMON H. DAVIS, Respondent.

      Supplementary proceedings — appointment of a receiver — a subsequent levy under a second execution — election between the execution and the supplementan'y proceedings.

    Abram Smith, having recovered a judgment against one Davis, on 'which an execution was issued and returned unsatisfied, instituted supplementary proceedings thereon, in which a receiver was appointed. Nine months later, when the receiver was about to apply to be discharged, Smith issued a second execution ■and had it levied upon property of Davis, which was in the possession of Davis when the receiver was appointed, but to which the receiver made no claim.

      Held, that the second execution would not be set aside as irregular and void.
    That the remedy by a receiver, and also by execution, might be pursued concurrently.
    That where, however, it appears that under a second execution the plaintiff has levied upon property indisputably the property of the debtor, and abundantly sufficient to pay the judgment, he may be compelled to elect between the execution and the supplementary proceedings.
    Appeal by the plaintiff Abram Smith from an order of the Otsego County Court, entered in the clerk’s office of said county on the 9th day of January, 1890, vacating and setting aside an execution issued herein by the plaintiff about October 26, 1889, and a levy made thereunder.
    On the 23d of December, 1887, the plaintiff obtained judgment against the defendant, before a justice of the peace of the county of Otsego, for $201.05 damages and costs. A transcript was duly filed, and judgment docketed in the office of the clerk of Otsego county, and an execution issued thereon by the clerk of that county to the sheriff thereof. The execution was returned wholly unsatisfied. Soon after the plaintiff caused proceedings supplementary to execution to be commenced before the county judge, who appointed M. E. Baldwin referee to take the evidence therein, and an examination was duly had. Afterwards, and on the 26th day of January, 1889, M. E. Baldwin was duly appointed receiver of the property of the judgment-debtor, and duly qualified and entered upon the duties of his office. On October 26, 1889, the plaintiff caused another execution on the same judgment to be issued against the property of the. defendant, which was delivered to the sheriff, who, by virtue thereof, levied upon certain personal property as the property of the defendant. He afterwards advertised a portion of said property for sale. The property levied upon was in the possession of the defendant when the receiver was appointed. The property thus levied upon had been formerly owned by the defendant, but he had transferred it to other parties previous to the institution of the proceedings supplementary to execution. The receiver never took possession of any of such • property, or made any demand for the same, and did not attack the transfer of the property for the reason, as stated in his affidavit, that he had not been directed so to do by the judgment-creditor, and for the further reason that he regarded it doubtful if the transfer could be successfully assailed. The receiver was about to apply for his discharge when this motion was made. After the property mentioned was levied upon, the officer making such levy was sued by the daughter of the judgment-debtor, who claimed to be the owner thereof, which action was-pending when this motion was made. '

      J. B, Holmes, for the appellant.

      L. J. Barnes, for the respondent.
   Martin, J.:

The only question involved on this appeal is whether, after proceedings supplementary to execution had been instituted and a receiver appointed therein, who had qualified, the issuing of another or second execution and a levy under it was -irregular and void, because made before the receiver was discharged.

The institution of supplementary proceedings, after return of execution against property, does not preclude the issuing of another execution upon the same judgment. The two proceedings having the same object in view — the collection of the judgment — may be pursued concurrently. (Smith v. Mahoney, 3 Daly, 285; Gates v. Young, 17 N. Y. W. Dig., 551.) Nor will the proceedings be-superseded by the issue of a. second execution unless it clearly appears that the property levied upon indisputably belongs to the debtor and is abundantly sufficient to satisfy the debt, and then the creditor may be compelled to elect between the execution and the proceedings. (Fellerman's Case, 2 Abb., 155; Lilliendahl v. Fellerman, 11 How., 528; Farqueharson v. Kimball, 18 id., 33; 9 Abb., 385, note; Hanson v. Tripler, 1 Code R. [N. S.], 154; 3 Sandf., 733; Owen v. Dupignac, 9 Abb., 180; Conway v. Hitchins, 9 Barb., 378.)

Under these authorities it would seem that the plaintiff was authorized to issue the second execution in this case, although proceedings supplementary to execution had been instituted and were then pending, and that, as these remedies were concurrent, the plaintiff might pursue either or both, unless the property acquired by the supplementary proceedings, or levied upon by virtue of the execution, indisputably belonged to the debtor and was amply sufficient to satisfy the debt, and that in that case he could be compelled to elect between the two proceedings. We think the plaintiff had the right to have the second execution issued, and, as there was a question as to the ownership of the property levied upon, the appellant was not required to elect between the two remedies.

But it is' said that, by operation of law, the receiver, upon his appointment, became vested with the title to the property of the judgment-debtor, and a levy upon any such property, or sale of it in pursuance thereof, would be irregular and void. The case of Walling v. Miller (108 N. Y., 173) is relied upon to sustain that claim. We think that case is clearly distinguishable from the case at bar. In that case the receiver, who was appointed in an action in the Supreme Court, and not in proceedings supplementary to execution, Avas in possession of the property when it was sold by the sheriff, and it Avas held that the sale was illegal and void. Iu this case, however, the receiver was not only not in possession of the property levied upon, but his affidavit shows that he did not claim any right or interest in it. It was claimed by a third person under a transfer that he did not propose to attack, for the yeason that he had not been directed by the judgment-debtor to do so, and because he regarded it doubtful if it could be successfully assailed. Moreover, he regarded his duties as receiver practically at an end, and Avas about to apjdy for his discharge. In Varnum v. Hart (119 N. Y., 108) it Avas held that where a sheriff was in possession of property, a sale thereof by him while the jxroperty was in his possession, but after the appointment of a receiver, was not void, but, at most, irregular, and that the case of Walling v. Miller was distinguishable from that case.

We need not now consider or decide the question Avhether the plaintiff should have obtained consent of the court before selling the property levied upon under the second execution; but, under the circumstances disclosed by the papers used on this motion, we think the issuing of the execution was authorized, and the learned county judge erred in vacating and setting it aside, and in setting aside the levy of the sheriff under it.

Therefore, the order should be reversed.

Hardin, P. J., concurred.

Mrravin, J.:

I favor reversal upon the ground that it was not shown that the property levied upon under the second execution was owned by the defendant at the commencement of the supplementary proceedings.

Order reversed, with ten dollars costs and disbursements.


author:
Martín, J.:
      Hardin, P. J.: Merwin, J.:

text:
    MATHIAS SCHENCK and Another, Respondents, v. ARTHUR B. ERWIN, Defendant. FRANCIS ERWIN, a Third Person Claiming to be a Party in Interest, Appellant.

      Supplementa/ry proceedings — jurisdiction to grant an order to examine a thirdperson.

    Mathias Schenck and another recovered a judgment against Arthur B. Erwin in Steuben county, a transcript of which was filed in Chemung county, where Erwin lived, an execution was issued and supplementary proceedings were instituted thereon. Subsequently Schenck obtained an order from the county Judge of Steuben county and examined Francis Erwin, as a third person having property of Arthur B. Erwin.
    Upon this examination, and upon the prior examination of Arthur B. Erwin, the county judge of Chemung county made an order requiring Francis Erwin to pay to the judgment-creditors certain moneys.

      Held, that the county judge of Steuben county had no authority to make this order; that the order to examine a'third party could be made only by the Chemung county judge.
    That the Chemung county judge acquired no jurisdiction of Francis Erwin, the third party, by virtue of the examination had under the order of the Steuben county judge, and that the order made by the Chemung county judge was void.
    Appeal by Francis Erwin, a third person, from an order of Hon. S. S. Taylor, County Judge of Chemung county, entered in the office of the clerk of said county on the 7th day of March, 1891.
    The order made by the county judge of Chemung, denied a motion that an order made by said judge' requiring appellant to pay the receiver appointed in supplementary proceedings $129 out of a legacy to which Arthur B. Erwin was entitled, as residuary legatee, under the will of Francis E. Erwin, deceased, be vacated. .
    The plaintiffs recovered a judgment against Arthur B. Erwin before a justice of the peace in Steuben county, and a transcript was filed and judgment docketed in the clerk’s office of Chemung county, and an execution was issued to the sheriff of that county, and returned unsatisfied. Supplementary proceedings were instituted before the county judge of Chemung county, and defendant, Arthur B. Erwin, was examined, he then being a resident of Chemung county. Subsequently plaintiffs obtained an order from the county judge of Steuben county for the examination of Francis Erwin, the appellant, concerning tlie property of tlie defendant, and on tlie examination of Francis, and tlie previous examination of defendant, tlie county judge of Chemung made an order requiring Francis to pay to tlie receiver $129, the amount of the judgment and costs in the supplementary proceedings.

      Spencer & Mills, for the appellant.

      Leslie W. Wellington, for the respondents.
   Martín, J.:

On February 12, 1891, the county judge of Chemung county made an order requiring the appellant to pay to the receiver herein the sum of $129. The single question in this case is, whether the ■ judge making that order had jurisdiction. If he had no jurisdiction to make the order, then he erred in refusing to vacate it. lie acquired no jurisdiction over Francis Erwin, who was examined as a third person having property of the judgment-debtor, under or by virtue of the order issued by the Steuben county judge. The •county judge of Steuben county liad no authority to issue such an order. It could be issued only by tlie county judge of Chemung county. (Merrill v. Allen, 46 Hun, 623.) The county judge of the latter county made no such order, hence there was never any valid order to examine the appellant as such third person. There was an attempt to institute the special proceeding provided for by subdivision 3 of section 2432 of the Code, but it failed. There was no proceeding under that provision of the Code in which the county judge of Chemung county could make any valid order whatever.

Nor do I think that in the proceedings instituted before him under subdivision 1 of section 2432 he in any way acquired jurisdiction of the appellant or jurisdiction to make the order requiring him to pay the sum named to the receiver. The appellant was not even examined under the order in that proceeding. He was examined only in a proceeding commenced before another county judge, who had no authority whatever to entertain it, and neither judge obtained any jurisdiction over the person of the appellant.

These views lead me to the conclusion that the order appealed from should be reversed.

Hardin, P. J.:

Upon reflection, I yield to tlie views expressed in the foregoing opinion, and vote for a reversal.

Tlie order must be reversed, with ten dollars costs and disbursements.

Merwin, J.:

The cases of Cooman v. Board of Education of Rochester (37 Hun, 96), and Woodman v. Goodenough (18 Abb., 265), sustain the proposition that the county judge of Chemung county had no jurisdiction to make the order complained of. (See, also, Riddle & Bullard, Supp. Pro. [3d ed.], 320.) The appellant was not a party to the proceeding before that officer, and did not appeal* therein. The service of notice by the plaintiff’s attorney could not take the place of a third party order.

Besides, a case was not made that justified an order requiring the appellant to pay.- It was not shown that he had money in his hands that belonged to the defendant. It may be that he owed the defendant a portion of his legacy, or had in his hands a mortgage from which, at some future time, he would have the means to pay the legacy, but that was not enough. (West Side Bank v. Pugsley, 47 N. Y., 368.)

I think, therefore, that the order appealed from should be reversed.

Order reversed, with ten dollars costs and disbursements.


author: Mbkwin, J.:

text:
    ROBERT WATKINS, Respondent, v. WILLIAM P. JONES, Appellant, Impleaded with Another, Defendant.

      Statute of limitations — new promise — what is a sufficient ‘‘acknowledgment" — evidence of it.

    A promissory note was made by David T. and William P. Jones, tlie latter being an accommodation maker. After the statute of limitations had run against the note as to William P. Jones he wrote the payee a letter relative to the note, in which, in reply to a.letter from the payee, he said that David was trying to sell a horse; that as soon as David could dispose of it David would pay the holder some; that the writer had expected the last fall to help David some, but could not do so, and that the writer would help David to pay some as soon as he could.

      Held, that, within section 895 of the Code of Civil Procedure, the letter was not an "acknowledgment” to the payee of the indebtedness of William P. Jones sufficient to take the case out of the statute.
    That there was no recognition of a debt, nor promise to pay it upon his own part, but, at most, only a willingness and expectation of helping the other maker to pay.
    That, in construing the letter of William, the letter of the payee to him not being-signed by the party to be charged thereby, was incompetent.
    That the acknowledgment or new promise cannot be partly in writing- and partly by parol, and that oral evidence was only admissible to identify the debt.
    Appeal by tlie defendant William P. Jones from a judgment of the Supreme Court, entered in the office of the clerk of the county of Oneida on the 22d day of May, 1891, upon a verdict for the plaintiff for $423.63, after a trial at the Oneida Circuit before the court and a jury.

      Jones <& Townsend, for the appellant.

      Sisley Perry, for the respondent.
   Mbkwin, J.:

This action is against William P. Jones and David T. Jones upon a note for $377, reading as follows:

“ $377.00.
“On the first day of January next we promise to pay Bobert Watkins or order three hundred and seventy-seven dollars for value received, with use.
“Bemsen, N. Y., Ma/reh 29, 1882. “W. P. JONES.
“D.T. JONES.”

In the complaint it is alleged that the interest has been paid to 29th of March, 1889. The defendant William P. Jones alone answers. He admits the execution of the note; alleges that he signed solely for the accommodation of the other maker; denies that he has made any payments, and sets up the statute of limitations.

Upon the trial the plaintiff, as a witness in his own behalf, testified that the defendant David T. Jones paid the interest on the note up to March 29, 1889; that after this, and in October, 1890, he saw William P. Jones and told him he should have to look to him for the payment of the note, as he didn’t think David would ever pay it, and asked him what he proposed doing about it; that William replied he would pay it, but would have to have time, and would see that the plaintiff got the interest and some of the principal that fall; that in January, 1891, he, the plaintiff, wrote William a letter, in which he said to him that he had promised to pay the interest and some of the principal, and that he had been waiting quite a while, and asked him what he proposed doing about it; that in reply to this he received from defendant the following letter:

“ Remsen, January 24th, 1891.
“ Robert Watkins :
“Dear Sir.— Your letter was duly received, and in answer will say that David is trying to sell, the horse he has and I am trying to sell it also. As quick as he can dispose of it he will pay you some. I expected last fall to be able to help him some, but the cheese sold so low that my dairy did not bring me enough to pay my rent and help. Will help him to pay some as soon as I can.
“W. P. JONES.”

No .other evidence material to the question here was given. Thereupon the counsel for defendant asked the court to nonsuit’the plaintiff and dismiss the complaint on the ground that the note was outlawed ; that the verbal promise did not take the case out of the statute, and that the letter was not such a promise or recognition of liability upon the note as to take it out of the statute; and, also, that it was conditional, and not effective to aid the plaintiff except upon the happening of the condition. This motion was denied, and defendant excepted. Thereupon, upon motion of plaintiff, the court ordered a verdict for the plaintiff on the note, and defendant excepted.

It sufficiently appeared that the letter of defendant referred to the note in suit. The oral evidence was admissible to identify the debt. (Manchester v. Braedner, 107 N. Y., 346.)

Beyond that, the oral evidence cannot be considered, as the promise or acknowledgment required by the statute cannot be partly in •writing and partly by parol. Nor can the contents of the letter written by the plaintiff to the defendant be considered, as the statute ■calls for a writing signed by the party to be charged.

Assuming, then, that the letter of defendant refers to the claim of plaintiff on the note, the question is whether the letter contains an acknowledgment or promise sufficient to take the case out of the statute. The defendant does not say he will pay the plaintiff anything, nor does he intimate that anything is due from him to plaintiff. He says that the other maker will pay him something when he sells his horse. It does not appear that the horse has been sold. He says he will kelp the other maker pay some as soon as he can. It does not appear that he is now able to do it. He says he expected last fall to be able to help the other maker to pay some, but failed for reasons stated. He indicates a willingness and expectation to help the other maker, but does not acknowledge any liability from himself to the plaintiff. It does not appear what the relations were between the defendant and the other maker, except as it may be inferred from the fact that defendant had paid none of the interest, and was not apparently called on for anything as long as the other maker was good.

Anderson v. Sibley (28 Hun, 17), and Manchester v. Braedner (supra), are cited by plaintiff as applicable hei’e. In the Anderson case, the plaintiff and defendant’s intestate entered into a written stipulation to submit their matters in difference to an arbitrator named, and on the hearing before the arbitrator to waive the statute of limitations. The defendant’s testator the next day revoked the submission. Thereupon the plaintiff having sought to enforce his claim the statute of limitations was set up. It was held that the agreement to waive the statute on the hearing before the arbitrator was a sufficient written acknowledgment to remove the bar of the statute. It was said that the stipulation and the facts attending it raised an implied promise to pay the claim, unless some defense should be found to exist to it, other than the statute of limitations, and that no such defense appearing the written pi-omise or acknowledgment was sufficient; In the Manchester case the defendant had given to the plaintiff written orders on a third party to an amount equal to plaintiff’s claim. The orders were not paid. It was held that the orders implied the relation of debtor and creditor between the plaintiff and defendant to the extent of the sums specified in the orders, and a willingness on the part of the defendant to pay the debt, and constituted a sufficient acknowledgment to avoid the statute. These cases do not reach the present. There is here no order, in fact or substance, upon a third party, nor is there any promise from which a recognition of the debt may be implied. The fact that defendant was willing, for some undisclosed reason, to help the other maker does not authorize the inference of a recognition of the existence of a debt from defendant to plaintiff. On the contrary, the expressions used rebut the idea of any intention on the part of defendant to recognize any liability upon himself to plaintiff. He does not propose to pay anything to plaintiff, he only proposes to help the other party. At the time the letter was written the six years had fully run as against the defendant, as it is not claimed that the payments made by the other party affected the defendant.

So far as there was any promise that was conditional, it was incumbent on the plaintiff to show the condition fulfilled. (Cocks v. Weeks, 7 Hill, 45; Wakemab v. Sherman, 9 N. Y., 85; Telo v. Robinson, 100 id., 27; Angell on Limitations [6th ed.], § 236.)

The foregoing suggestions lead to the conclusion that the letter in question was not sufficient to show an acknowledgment or promise that would relieve the bar of the statute. It follows that the court erred in directing a verdict for plaintiff.

Martin, J., concurred; Hardin, P. L, not voting.

Judgment reversed upon the exceptions, and a new trial ordered, costs to abide the event.


text:
    JULIUS A. SCHORN, Respondent, v. CHARLES A. BERRY, Appellant.

      Action for criminal conversation — the adultery of the husband — consent to wife’s intercourse with others — test of the relevancy of matter pleaded.

    In an action brought by a husband, alleging the alienation of the affections of his wife, the defendant may set up the adultery of the husband; that he had bragged and boasted about it to the wife, and that he had importuned her to have intercourse with other men.
    Such facts, if proved, may amount to a complete defense; but if this be not so they are competent in mitigation of damages.
    The true test of the relevancy of matter pleaded is whether the averments constitute a cause of action or a defense.

      Appeal by tbe defendant Oliarles A. Berry from an order of tlie Supreme Court, entered in the office of the clerk of the county of Chenango on the 1st day of July, 1891, striking out a part of the answer of the defendant as irrelevant, redundant and scandalous.

      George W. Bang, for the appellant.

      W. G. Moulton, for the respondent.
   Martin, J.:

This action was to recover damages for an alleged alienation of the affections of the plaintiff’s wife. Among other allegations contained in the answer was the following: “ That on divers and different occasions .during the years 1886,1887, 1888, 1889 and 1890, the plaintiff; had carnal and criminal connection and intercourse tvith his servant girls, and with other females, and bragged and boasted of the same to the said Clara Schorn, his said wife, and importuned his said wife to have intercourse with other men.” This portion of tlie answer was stricken out as irrelevant, redundant and scandalous, and from that portion of the order the defendant appealed. If this matter was proper to be pleaded for any purpose, or if it would affect the question of damages or go in mitigation of the amount of damages, it was not irrelevant. The true test of relevancy is to inquire whether the averments tend to constitute a cause of action or defense. If they do, they are not irrelevant. (1 Rumsey’s Pr., 299 et seq.)

In an action for criminal conversation, if. the husband consents to his wife’s adultery, it is a bar to the action, whether the consent be general by giving a general license to his wife to conduct herself as she pleased with men generally, or by assenting to the particular act of adultery charged. (Winter v. Henn, 4 C. & P., 498; Bunnell v. Greathead, 49 Barb., 106; Norris v. Norris, 30 L. J. Matrimonial, 111; Cibber v. Sloper, cited in Duberley v. Gunning, 4 T. R., 655; Sanborn v. Neilson, 4 N. H., 501; Cook v. Wood, 30 Ga., 891.)

In an action of this character the defendant may show the plaintiff’s carnal connection with other women at any time after his marriage and before trial in mitigation of damages. (Smith v. Masten, 15 Wend., 270; Shattuck v. Hammond, 46 Vt., 466; Rea v. Tucker, 51 Ill., 110; Sanborn v. Neilson, supra.)

The matter contained in the portion of the answer stricken out was alleged both as a defense and in mitigation of damages. It, in effect, alleged that the plaintiff committed adultery with other persons after his marriage and before trial, and that he consented to his wife’s adultery. If the facts alleged could be established, they would constitute a full, or at least a partial defense to the action. Ve think the defendant had a right to plead the matters stricken out, and that the court erred in granting the order appealed from, and die order should be reversed, with ten dollars costs and disbursements.

Hardin, P. J., and Merwin, J., concurred.

Order reversed, with ten dollars costs and disbursements.


author: Martin, J.: Merwin, J.

text:
    WILLIAM H. De MOTT, Appellant, v. FRANCIS M. KENDRICK, Respondent.

      Appeal — time, how limited — a judgment is not final while the costs mag be readjusted,.

    On the 10th day of April, 1891, the attorneys for a defendant entered judgment upon a referee’s report, and taxed their costs without notice. Upon the same day they served upon the plaintiff’s attorney a copy of the judgment, with notice of retaxation of the costs. No further notice of this character was ever served hy the attorneys for the defendant. On the 23d day of October, 1891, the plaintiff’s attorney filed and served notice of exceptions to the referee’s report, and notices of appeal from the judgment. The notices served upon the defendant’s attorneys were returned by them on the ground that they were not served in time, more than thirty days having elapsed since the service upon the plaintiff’s attorney of a copy of the judgment.

      Held, that as the notice of the entry of judgment was served before the amount of the judgment had become fixed by a readjustment of the costs, and as it was served while the power of the clerk to readjust the costs was not exhausted, service of such notice was insufficient to limit the time of appeal. (Merwin, J., dissenting.)
    Appeal by tbe plaintiff William H. De Mott from an order of the Supreme Court, entered in the clerk’s office of the county of Oneida on the 9th day of November, 1891, denying a motion to compel the defendant to receive a notice of appeal, and notice of exceptions to a referee’s report, and also to give the plaintiff thirty days in which to make a case.

      The' action was brought for an accounting between the plaintiff and defendant, who were copartners, and the report of the referee directed a judgment settling the affairs of the copartnership, and for the recovery of a judgment by the defendant against the plaintiff.
    On the 10th of April, 1891, the attorneys for the defendant entered the judgment and taxed costs without notice to the attorney for the plaintiff. On the same day they served upon the plaintiff’s attorney a copy of such judgment with a notice of the entry thereof, and their bill of costs, with a notice that the same would be readjusted by the clerk of Oneida county on the 13th day of April, 1891, at two o’clock p. m. No other notice of the entry of said judgment, or of the adjustment or readjustment of the costs, was served upon the attorney for the plaintiff. On the 23d of October, 1891, the plaintiff filed with the clerk of Oneida county a notice of exceptions to the report of the referee, and a notice of appeal by the plaintiff from said judgment. On the same day the attorneys for the defendant were served with a notice of appeal and with a notice of said exceptions. The attorneys for the defendant returned the notice of appeal and notice of exceptions to the attorney for the plaintiff on the same day, witli written notice that the same were served too late and after the time to appeal had expired.
    The order appealed from denied the plaintiff’s motion “ on the ground that said notices of appeaj and of exceptions were served too late and were not served in time, more than thirty days having elapsed between the service of a copy of the referee’s report, notice of filing thereof, a copy of the judgment with a notice of the entry thereof, and the service of the notice of appeal and notice of exceptions.”
    IF. A. Matteson, for the appellant.

      Goodier <& Wolcott, for the respondent.
   Martin, J.:

As the appellant’s motion was denied upon the ground that more than thirty days had elapsed after the service of a copy of the judgment with a notice of the entry thereof, and before the service of the notice of appeal, we think it is fair to presume from the order in this case that the motion was denied upon the ground that the appellant’s time to appeal liad expired, and consequently tlie court had no power or authority to grant the order.

The only question we need consider is, whether the service of a copy of the judgment herein, with a written notice of the entry thereof, at the time when it was served, was sufficient to limit the appellant’s right to appeal.

The appellant’s claim is that the judgment that was entered, and of which a notice was given, was not then a final and perfected judgment, but was uncertain and liable to be changed, and hence that a notice of its entry before it had been perfected and become final was insufficient to limit his time to appeal.

In Sherman v. Wells, President, etc. (14 How. Pr., 522), the General Term of the first district held that while the amount of the costs is kept open no notice of the entry of judgment can be given which will limit the time to appeal. Mitchell, J., in delivering the opinion of the court in that case, said : “ The appellant is to appeal within thirty days after written notice of the judgment is given to him. This must mean of a judgment, so perfected in form that on the very day on. which the notice is given of its entry the appellant has on the record a knowledge of all the matters necessary to the perfection of an appeal and of a stay upon it. One of these matters is the amount of the judgment, and that depends on the amount of the costs. So, that while the amount of the costs is kept open, no notice of the entry of judgment can be given which will limit the time to appeal.”

The doctrine of that case was followed by the General Term of the seventh district in Champion v. The Plymouth Congregational Society (42 Barb., 441). In the opinion of the court in that case the doctrine laid down in the Sherman case was quoted with approval, and it was distinctly held that a notice of the entry of judgment, served before the costs were finally adjusted, did not have the effect to limit the right of the opposite party to appeal to the General Term.

In Thurber v. Chambers (60 N. Y., 29), it was held that where a decree in a partition suit awards costs, a notice of judgment, served prior to the taxation and entry of the costs, does not limit the time for appeal. The same doctrine was held in Beinhauer v. Gleason (44 Hun, 556).

These authorities seem to justify the appellant’s claim, and to establish the doctrine that a notice to limit the time of appeal can only be given when the amount of the judgment, including costs as well as damages, has been finally adjusted and determined by the clerk who is the taxing officer.

The respondent, however, contends that the doctrine of the first two cases has been, in effect, overruled by the cases of Wilson v. Palmer (75 N. Y., 250), and Yates v. Burch (87 id., 412).

In Wilson v. Palmer a judgment was perfected by the final adjustment of costs by the clerk on August 3, 1877, and a copy thereof, with notice of entry, was served on the same day. On the thirtieth of the same month, on application to the court for an order for a retaxation of the costs, an order was granted by the court striking out an item of one dollar and twenty-five cents. It did not appear that the judgment was actually modified. An undertaking on appeal was filed and served August 30, 1878. On a motion to dismiss the appeal on the ground that it was not perfected within one year, it was held that, as the appeal was not perfected within one year from August 3, 1877, it was too late, and that no other notice to limit the time of appeal was necessary, although the taxation was corrected on August thirtieth. It is quite obvious that the costs in that case were finally adjusted by the clerk upon notice to the adverse party on August third, when the notice to limit the time to appeal was given, as it appears from the report of the case that the taxation was corrected by an order of the court granted on a motion for retaxation made by the appellant. In other words, the correction in that case was made on an appeal to the court from the decision of the clerk, and not upon a readjustment of the costs by the clerk. While the report of that case is meager, it shows that the judgment had become fixed and was final, so far as any act of the clerk, as taxing officer, was concerned, before the notice was served. At the time of its entry his power to adjust or readjust the costs was at an end, and hence it was that the notice of entry of judgment was held effectual to limit the time of appeal.

The question under consideration in this case was not involved in the case of Yates v. Burch. The question in that case arose under a section of the Code of Procedure, which provided that an action should not be brought on an undertaking given on appeal “ until ten days after the service of notice on the adverse party of the entry of the order or judgment affirming the judgment appealed from.” In discussing the question of the.sufficiency of the notice in that case, it was said: “ On the other hand, in Wilson v. Palmer (15 N. Y., 250), upon facts quite similar to those before us, it was held that the time to appeal ran from the entry of judgment containing the sum of costs as first adjusted. The appellants object that this was under another statute. (Old Code, §§ 331, 331.) This is so; but, as will be seen, its provisions are broader than those under review, and the reasoning of the court m that case may well include and be decisive of this. In neither was the judgment, in fact, changed although in both the costs were reduced; but under the statute governing the rights of the parties here, it would seem to be sufficient to give notice of the entry of the order or judgment of affirmance without stating the amount of costs awarded; while under the other statute, when notice is required, it must be of the order (§ 334), or of the judgment or order (§ 331); not of the entry merely. The object of the different provisions is manifest. In the one case, to notify the appellant that the contingent obligation of his surety has become fixed; in the other, to give the party such information of the terms or amount of the order or judgment as will enable him to state it in the undertaking rfequired upon appeal.” The court then remarked that, “ The argument, as well as the decisions, in Sherman v. Wells and Champion v. Plymouth Congregational Society apply only to the latter case ; ” that the notice required by the statute then under consideration was of the entry of the judgment or order of affirmance only, and not of the costs or damages awarded, and then stated: “ There is a difference in the phraseology and the object of the two statutes, and the' construction applied to one need not be extended to- the other.”

This examination of the decision in the Yates case renders it quite manifest that the court in that case did not intend to and did not decide the question involved in the case at bai\ Nor did it overrule or question the authority of the decisions in the Sherman and Champion cases.

We think the cases relied upon by the respondent are clearly distinguishable from the Sherman and Champion cases and from the cáse at bar. As we have already seen in the Palmer case, the costs had been finally adjusted by the clerk, so that his jurisdiction over the question of costs was at an end when the notice to limit the time to appeal was served. In that case the clerk’s authority to tax or retax the costs was spent. He had no power to act further in the matter. The judgment was absolutely final so far as any act of his in regard to the costs was concerned. But in the Sherman and Champion cases as in the case at bar, the clerk still had power and it was his duty to readjust the costs. There had been no final and conclusive adjustment of them by him, and hence the judgment was not final, as its amount had not been finally determined when the notice was given by which the time to appeal was sought to be limited.

The party who undertakes to serve a notice of the entry of judgment, so as to limit the time to appeal is held to very strict practice. (Good v. Daland, 119 N. Y., 153.)

We are of the opinion that the notice of entry of judgment, having been served before the amount of judgment had become fixed by readjustment of costs after notice to the appellant, it did not limit his time to appeal. Nor do we think the rule, as it existed before the adoption of the Code of Civil Procedure, has been changed by section 3261. It seems that that section was intended as simply declarative of the practice as it existed at the time of its adoption. Mr. Throop in his note to that section says: “New in form, but, according to the existing practice, as recognized in numerous cases,” citing Stimson v. Huggins (16 Barb., 658); Macomber v. Mayor of New York (17 Abb. Pr., 35); Henry v. Bow (20 How. Pr., 215); Hoffnung v. Grove (18 Abb. Pr., 112); Champion v. Plymouth Congregational Society (12 Barb., 441); Petrie v. Fitzgerald (2 Abb. [N. S.], 354; Watson v. Gardiner (50 N. Y., 671).

These considerations lead us to the conclusion that the order1 appealed from should be reversed and the motion granted.

Hardin, P. J., concurred.

Merwin, J.

(dissenting):

I am inclined to the opinion that the order in this case should be affirmed. The judgment sought to be appealed from was, at its entry, a complete judgment. The costs had been taxed as the party had a right to have them taxed under section 3261 of the Code. That section provided for a retaxation, and then provided that “ any sum deducted upon a relaxation must be credited upon the execution, or other mandate issued to enforce the judgment.” So that apparently the judgment in form remained as entered, but could be enforced only for the proper amount. No modification of the form of the judgment was provided for. It would seem to follow that the judgment as entered was the one to be appealed from, and the one, and the only one, of which a copy could be served.

Under the old Code, the costs could not be regularly inserted in the judgment without taxation upon notice, and the judgment was, therefore, incomplete until such taxation. The difference in that, respect in the present Code renders inapplicable the cases decided under the old Code. This distinction is not considered in Beinhauer v. Gleason (44 Hun, 556). The question was not involved in Beinhauer v. Gleason (15 N Y. St. Rep., 227; affirmed, 119 N. Y., 658).

The case of Wilson v. Palmer (75 N. Y., 250), seems to be in point. Here, as there, no other judgment was ever entered, and it does not appear that the judgment has been modified. Yates v. Burch (87 N. Y., 412), is in the same direction. I think, therefore, the order should be affirmed.

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


text:
    SIDNEY WILDER, Appellant, v. HENRY C. BALLOU, as Executor of THEODORE P. BALLOU, Respondent.

      Statute of limitations — claim against am, executor — effect of a stipulation to stay-proceedings.

    In. 1885 Sidney Wilder began an action against one Theodore C. Ballou and another, during the pendency of which Ballou died. His executor advertised for claims and Wilder presented the claim, which was the subject of his action, which the executor disputed.
    Upon a motion to revive the action against the executor the court granted it upon terms, among which was one that Wilder should stipulate to stay all proceedings upon his claim against the executor while the order reviving the action stood. Wilder filed such a stipulation, subsequent to which the order reviving the action against the executor was reversed upon appeal.
    Wilder, a month after such reversal, began an action, to which the executor- ■ pleaded the six-months statute of limitations created by section 1822 of the Code of Civil Procedure.

      Held, that while the order was conditional, yet when Wilder accepted it and gave the stipulation the result was a stay by an “order of the court,” within the meaning of section 406 of the Code of Civil Procedure, and that the time during which the order stood was not a part of the time limited for the commencement of the action against the executor.
    Appeal by the plaintiff Sidney Wilder from a judgment of the Supreme Court, entered in the office of the clerk of the county of Oneida on the 9th day of October, 1891, dismissing the complaint, with costs, after a trial before a referee.
    In December, 1885, the plaintiff commenced an action against the defendant’s testator and one James N. Walters for the same cause of action set out in the complaint herein. Issue was joined therein by the service of answers by both defendants. Before it was brought to trial, and on February 28, 1887, the defendant’s testator died, leaving a last will and testament by which the defendant was appointed as his executor. This will was subsequently admitted to probate, and letters testamentary were duly issued to him, and he qualified as such executor.
    After having so qualified and entered upon the duties of his office, lie caused a notice to the creditors of the decedent to be published in a newspaper printed in the county where the testator resided at the time of his death, requiring such creditors to present their claims to him at his office on or before the 15th of September, 1888. This notice was published from March twelfth until September fifteenth of that year. ,
    During the publication of such notice, and on June 30th and July 2, 1888, the plaintiff presented to the defendant his claim, which was the same as the cause of action set forth in the complaint. On the twenty-fifth of the latter month, the defendant served upon the plaintiff a notice in writing, that he doubted the justice and validity of such claim, and, therefore, disputed it. The claim presented was not referred.
    On December 3, 1888, the plaintiff moved, in the action against the defendant’s testator and Walters, for an order reviving that action as against the decedent’s estate, and to make the defendant a party thereto. This motion was opposed by the defendant on the grounds that, after the death of his testator and after letters testamentary were issued to him, the plaintiff had proceeded therein against Walters, the surviving defendant, thus working a practical severance thereof. And, also, on the further ground that the claim presented by the plaintiff to the defendant had not been withdrawn, and defendant claimed that any motion granted to revive and continue such action should be conditional upon the withdrawal and abandonment of his claim as presented against the estate of defendant’s testator.
    The, court decided that it would grant plaintiff’s motion, provided he would, within ten days, stipulate to waive his right to apply for treble damages in case of a verdict in his favor, and, also, stipulate within that' time to stay all proceedings upon his claim presented to the executor, to be binding as long as the order stood. In pursuance of that decision, an order was entered as follows:
    “Upon reading and filing affidavits of the above-named plaintiff, verified November 23, 1888, and notice of motion to continue and revive the action as to the estate of defendant Theodore P. Ballou, and bring in his executor, and upon reading and filing affidavit of Henry C. Ballou, verified November twenty-sixth, and E. J. Richardson, verified November 27, 1888, after hearing A. B. Steele, of counsel for plaintiff, for said motion, and E. J. Richardson, of counsel for defendants and said executor, opposed. Ordered, that this motion be, and the same is hereby granted; the said plaintiff, as a condition of the granting of said motion, file a stipulation to waive his right to apply for treble damages in case of a verdict in his favor, and also stipulate to stay all proceedings upon his claim presented to the executor, such stipulation to be filed within ten days, and to be binding as long as this order stands.”- - On December 13, 1888, the plaintiff filed a stipulation in compliance with such order, waiving the right of plaintiff to apply for treble damages, and stipulating that all proceedings be stayed upon the claim of plaintiff presented to the defendant, tp be binding as long as the order reviving the action and bringing in the executor stood.
    After such stipulation was filed, the defendant appealed from the foregomg order. Upon the appeal the order of the Special Term was reversed. The order of reversal was entered February 27,1889, and copies thereof served upon the plaintiff’s attorneys upon that day.
    This action was commenced by the personal service of the summons and complaint herein upon the defendant, as such executor, on the 28th day of March, 1889, and not prior to that time.
    From the time of the rejection of the plaintiff’s claim to the time of granting the order to revive the former action was four months and sixteen days, and from the date of the entry of the order of the General Term reversing the order of the Special Term to revive and continue said action to the commencement of this action, was one month and one day. This action was not commenced within six months after the plaintiff’s claim was rejected by the defendant, but excluding the time during which the order reviving said action remained unreversed, and the remaining time between the rejection of such claim and the commencement of this action, was only five months and seventeen days.

      Steele c& Prescott, for the appellant.

      E J. Richardson and A. M. Mills, for the respondent.
   Martin, J.:

The only question that need be considered on this appeal is, whether the plaintiff’s right to maintain this action was barred by the six months’ limitation provided for by section 1822 of the Code of Civil Procedure.

That the claim, which was the foundation of this action, was presented to the defendant as executor, and by him disputed and rejected more than six months before the commencement of this action was amply proved and undisputed.

The appellant, however, seeks to avoid the effect of the limitation provided for by section 1822 on the theory that section 406, which declares that, “ Where the commencement of an action has been stayed by injunction, or by other order of a court or judge, or by statutory prohibition, the time of the continuance of the stay is not a part of the time limited for the commencement of the action,” was applicable to this ease, and that he was stayed by the order of the Special Term during the time the order reviving and continuing that action was in force.

The first question presented is, whether the provisions of section 406 are applicable to the limitation provided for by section 1822. It is contended by the respondent that the general provisions contained in chapter 4 of the Code of Civil Procedure are not applicable to the special limitation provided for by section 1822. That question can hardly be regarded as an open one in this court. In Titus v. Poole (88 N. Y. St. Rep., 627) we held that section 405 was applicable in a case where the limitation provided for by section 1822 was pleaded as a defense. If that decision was correct, it would seem to follow that section 406 is applicable to the case at bar, and that the time, if any, during which the commencement of this action was stayed by an order of the court was not a part of the time limited for the commencement of the action.

The contention of the respondent is that the decision and order made by the court did not absolutely require the plaintiff to give a stipulation for a stay of proceedings on his claim, and that there was no absolute order either continuing such action after such stipulation was given or in any way staying the commencement of an action. He also contends that the only order granted was a provisional one, and that whether there was to be any stay was wholly dependent upon the consent of the plaintiff; that if there was any stay of proceedings it- was by virtue of the stipulation of the plaintiff, and not otherwise.

On the other hand, the appellant claims that such decision and order constituted a stay of proceedings by an order of court, and was within the provisions of section 406 of the Code; that, although the decision was conditional, yet, when the plaintiff accepted its terms and entered an order whereby the motion was granted and he was directed to give a stipulation staying proceedings on his claim, the stay was in pursuance of an order of the court, and, therefore, within the spirit, if not within the letter, of that section. There seems to be much force in this claim.

The decision made by the court did not absolutely require the plaintiff to give a stipulation for a stay of proceedings, but the order which was entered by the plaintiff in pursuance of that decision was an order actually reviving and continuing the action against the defendant, and it, in effect, required the plaintiff to give a stipulation staying proceedings on his claim while that order was in existence. This we regard as a fair construction of the pi’ovisions of the order. The order, and not the memorandum, of the judge must control. While the order did not, in terms, stay the commencement of an action by the plaintiff upon his claim, it required him to stipulate to stay proceedings thereon while it stood, which was tantamount to, and in effect, an order for such a stay. This question may not, perhaps, be entirely free from doubt, but when we consider this order in the light of the circumstances under which, and the purpose for which, it was granted, we are led to the conclusion that it, in effect, stayed the commencement of an action by the plaintiff upon his claim, and was within the spirit of section 406.

We are, therefore, of the opinion that the plaintiff was stayed by an order of the court from the commencement of an action upon his claim during the continuance of such order, and that the time of the continuance of such stay was not a part of the time limited for the commencement of this action. Hence it follows that the judgment appealed from should be reversed.

Merwin, J., concurred; Hardin, P. J., not voting.

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