author: Putnam, J. : Herrick, J.

text:
    Wakefield Rattan Company, Respondent, v. Shepard Tappen, as Sheriff of Rensselaer County, Appellant.

      Power of an agent — cannot be shown by his declarations — a clerk and bookkeeper in a retail store has no power to bind his principals by a statement of their financial condition.

    The extent of the power of an .agent cannot be shown by proof of the declarations of the alleged agent.

    A clerk and bookkeeper in a retail store is presumed to have authority to sell goods and to do the ordinary business carried on therein, but, in the absence of evidence of authority so to do, he is not deemed to have the right to bind his principals by statements to a mercantile agency as to their financial condition.
    (Herrick, J., dissenting.)
    Appeal by the defendant, Shepard Tappen, as sheriff of Rensselaer county, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 6th day of March, 1893, upon the verdict of a jury rendered after a trial at the Rensselaer Circuit, and also from an order entered in said clerk’s office on the 18th day of March, 1893, denying the defendant’s motion for a new trial.
    The plaintiff’s alleged cause of action appears in the opinion of Herrick, J.

      Henry L. Landon and James G. Fursman, for the appellant.

      Fra/nk S. Black, for the respondent.

       See 79 Hun, 541.

   Putnam, J. :

Without considering any of the other questions raised in the case, I think a new trial should be granted for the reason last stated in the opinion of Justice Mayham. (70 Hun, 103-111.)

The exception of the defendant to the reception of the testimony of the witness Seaver, plaintiff’s agent, showing that in making the sale of the goods which were the subject of this action, he relied upon the report of the Edward Russell Company, founded on the statements of Frank Andros, made March 1 and September 13, 1890, was clearly well taken. But the erroi of the court in overruling the objections of defendant to such report might have been obviated if. the plaintiff had afterwards shown that Andros was authorized to represent the Keith Company in making the statements in question to the mercantile agency. I think, however, it failed to show any such authorization.

The evidence in the case relating to this authority of Andros was, substantially, as follows: It was shown by the witness Dabell that Andros was the bookkeeper of the Keith Company in 1890 and had been for several years. The witness Coffey testified that Andros had charge of the books and was in general charge of the store at the time he called. The last-named witness further testified that he understood that Andros was manager of the business. When asked from whom he understood it, he answered, “from himself.”

It is well settled that the power of an agent cannot be shown by the declarations of the alleged agent. It is said in Gould v. Town of Sterling (23 N. Y. 456-463): “ No representation of the agent as to the fact of his agency, or as to the extent of his power, is of any force to charge the principal. But, it being shown, by other evidence, that the agency existed, and that the act done was within the general scope of 'the power, the principal is bound by the representations of the agent as to any essential facts known to the agent but which the party dealing with him had no certain means of ascertaining.”

. The last-named witness also testified that he had no recollection of going to the store of the Keith Company at any other time then •the 13th of September, 1890, to acquire any information. Andros, as a witness, in answer to the question by the court, testified that he was not the manager of the business; he was a bookkeeper. Hence, the testimony in the case only shows that Andros was a bookkeeper of the Keith Company and had been for several years, and when Coffey called at the Keith Company’s store in September, 1890, was in charge. There is no evidence, whatever, that he had any authority from the Keith Company to make statements for the use •of the mercantile agency.

I think no such authority is to be implied. Andros was a clerk and bookkeeper in a retail store, and should be presumed to be authorized to sell goods and to do the ordinary business there carried on. Rut I do not think he should be deemed, in the absence of evidence, to have had the right to bind his principals by statements to the mercantile agency.

Therefore, it was erroneous for the court to allow the statements of Andros to be read in evidence and to overrule the objections to the testimony of Seaver, plaintiff’s agent, that in making the sale of the goods in question he relied on the mercantile agency’s report founded on such statements.

The reception of this evidence probably influenced the jury. It ■is true that some representations made by Iiyland, a member of the Keith Company, as to the financial standing of. the firm at the time the Keith Company ordered the goods in question were shown. But these representations were so vague and indefinite that a jury would have been justified in refusing to render a verdict founded thereon. It is probable that the jury, in reaching the conclusion that the Keith Company obtained the goods in question by fraud and deceit, were influenced Tpy the testimony given as to the statements of Andros to the agent of the mercantile agency.

It was for the plaintiff to show the alleged false representations of the Keith Company. It attempted to do this by testimony of the statements of one of the members of the Keith Company, which was competent; also by evidence of representations of Andros to the agent of the commercial agency, which I have endeavored to show were incompetent. The defendant was not compelled to offer evidence to show the lack of authority on the part of Andros. He could properly rest on the failure of plaintiff to show affirmatively such authority.

I have examined the authorities cited by the learned counsel for the respondent, and am unable to see that they conflict with the views above stated. They are generally cases holding that one employed in the office or place of business of a corporation or individual, apparently having charge or some charge of the business there carried on, and assuming to transact business as agent for such corporation or individual, will be presumed to be authorized to act as such in matters relating to the ordinary business of the parties for whom he assumed to act. As if, for instance, Andros had assumed to sell goods in the store of the Keith Company with a warranty or on credit. Any act of Andros in the store relating to the ordinary business of the firm would doubtless have bound the Keith Company. But the act of making statements of the financial standing of his employers to the mercantile agency was not ordinarily the duty of a clerk or bookkeeper, or within his ordinary powers, and no special authority was shown on his part to make such representations. The case of Corning v. Walker (14 Wkly. Dig. 314), cited by counsel for respondent, was where, after a person was shown to be a general manager of a party, it was held, proper to allow evidence of his declarations. Here, as we have seen, not only is there no proof that Andros was general manager, but, on the contrary, his uncontradicted evidence shows that he was not.

There has been no discussion before us on the question of plaintiffs right to maintain this action of replevin under subdivision 3 of .section 1690) Code of Civil Procedure. (See Wise et al. v. Grant, 140 N. Y. 593.)

For the reason above stated I am in favor of a reversal of the judgment.

Mayham, P. J., concurred.

Herrick, J.

(dissenting):

Owing to some misapprehension of the facts in this case upon the former argument, arising in part from imperfections in the record, .a rehearing was ordered, and the case is now before us for reconsideration, such reargument having been had.

The plaintiff brings its action in replevin to recover possession of fifty-four baby carriages and twenty-two brakes, of the value of $638.35, which it is alleged the defendant wrongfully took possession of, and wrongfully and unlawfully detained.. The defendant claims to hold such property by virfue of certain executions placed in his hands upon judgments against the Isaac Keith. Company, in whose possession such baby carriages and brakes were at the time of the issuing of such executions.

The plaintiff’s claim is, that it was induced to sell such property to the Isaac Keith Company by false and fraudulent representations, and in consequence thereof it alleges that the legal title to tine same has never been parted with by them.

The Isaac Keith Company is a co-partnership consisting of William H. Hyland and Phcebe Link.

The business appears to have been established by one Isaac Keith, and upon his death to have been continued for a period of time by his heirs, from whom an interest was purchased by the said William II. Hyland.

The plaintiff is a corporation. About the last of January or the first of February, 1891, a sale of the property in question was made through one of its agents, who called at the place of business of the defendant, and in the course of the negotiations was informed by Hyland that “ they had an unusually good holiday business ; that the business was prosperous, and that the concern was doing a nice business and everything was looking promising. Q. How about its financial condition ? A. And the financial condition was all right.”

At that time the order was given for the carriages and brakes in question; the order, together with this statement of Hyland’s, was communicated by said agent of the plaintiff to plaintiff’s credit man. The credit man then applied to a commercial agency, and obtained a report of the financial condition of the said Isaac Keith Company, which was as follows :

Exhibit “A.”

“ Statement made March 1st, 1890. February 1st, as follows: Their inventory taken

“ Merchandise — furniture............. ......... $22,887 45

“ Merchandise — carpets.............. ......... 8,933 47

“ Cash............................. ......... 569 21

“ Bills receivable..................... ......... 1,459 40

“ Book accounts...................... ......... 22,201 18

“ Total assets.................... ......... $56,050 71

“ Bills payable....................... $6,700 00

“ Book accounts..................... 9,823 67

“ Total liabilities.............................. 16,523 67

“Net assets................................. $39,527 04'

“ The book accounts in the assets were $32,301.18, but in the inventory they deducted $10,000 for poor accounts.

“ Sept. 13th, 1890 — Mr. Frank Andros, manager, tells us to-day that there has been no change in their affairs since their statement .last March.”

This report was accompanied with the statement that the condition was reported to be substantially unchanged.

This statement was received on or about the 7th or 8th of February, 1891, and the baby carriages and brakes were shipped on the 14th of February, 1891.

In March following judgments were entered against the Isaac Keith Company, and executions thereon issued to the sheriff, and, the property of that firm levied upon and subsequently sold Upon the sale the property brought about $13,000 In addition to the executions there was also placed in the sheriff’s hands, at about the same time, for foreclosure, two chattel mortgages, one for $4,000, and one for $1,500. What these mortgages were given for does not appear in the case.

The plaintiff commenced this action by the service of a summons the 26th day of March, 1891, claiming that the representations made to it, whereby it was induced to part with the property in question, were false and fraudulent, and that the said Isaac Keith Company, at the time thereof, was insolvent and unable, to pay its debts.

William II. Hyland went into the firm of the Isaac Keith Company about the 1st of March, 1890; what his interest was does not appear; it will, therefore, be assumed that he and Phosbe Link were equál partners; he paid no money at the time of entering into the co-partnership, but the consideration of His purchase of such interest was $12,000, 'which he states was to be paid by -his paying the debts of the firm. He, was at that time indebted to Harriet L. Keith, from whom he purchased his interest in the concern, in the sum of $5,000 payable in from one to five years.

On the 1st of March, 1890, the statement to the commercial, agency, hereinbefore set forth, was made by the bookkeeper of the new firm, who had likewise been the bookkeeper of Isaac Keith, in the same business, for a number of years.

In September he stated to the commercial agency that there had been no change in their affairs since the statement of March.

On the 21st of October, 1890, the Isaac Keith Company executed and delivered a note on demand for the sum af $6,000, payable to the order of William H. Hyland, which note was subsequently given to the Central National Bank of Troy.

On the eighteenth day of October, William H. Hyland and Phoebe Link, as co-partners, under the name of the Isaac Keith Company, executed and delivered their promissory note, whereby they promised to pay Elizabeth Hyland, on demand, $3,000.

On the 9th day of December, 1890, Phoebe Link made her promissory note payable to the order of William H. Hyland for $1,500, payable three months after date. This note appears to have been subsequently indorsed by Hyland, and transferred to Richard A. Cunningham and William H. Taylor. The case does not disclose whether this note was given for the benefit of the co-partnership or not; the judgment subsequently entered upon it was against both parties.

On the 3d of February, 1890, William H. Hyland gave to Harriet L. Keith five separate promissory notes of $1,000 each, payable respectively in one, two, three, four and five years from the date thereof.

On the 22d day of January, 1891, the Central National Bank of Troy commenced an action against the said William H. Hyland and Phoebe Link upon the note of $6,000 1 have referred to; no appearance was made by them in said suit, but judgment was not entered thereon until the 20th of March, 1891.

. Confessions of judgment upon the other notes I have described were given by the said Hyland and Link on the 22d and 23d of March, 1891.

In the confession of judgment given upon the note for $3,000 to Elizabeth Hyland, it is stated that such note was given for money actually loaned by the said Elizabeth Hyland to the said William H. Hyland and Phoebe Link.

At the time of the commencement of plaintiffs action, judgments had been entered against the said William H. Hyland and Phoebe Link, by default or by confession, as follows: Central National Bank, March 20,1891, by default for the sum of $6,170.93 ; Henry Heywood and others, March 23, 1891, upon confession for the sum of $610.96; Elizabeth Hyland, March 23, 1891, upon confession for the sum of $3,078.01; Richard A. Cunningham and William H. Taylor, March 24, 1891, upon confession for the sum of $1,542.01.

And in addition chattel mortgages had been placed in the sheriff’s hands for foreclosure, amounting to $4,500, making an aggregate in all of $15,901.21; and in addition there had been entered by confession a judgment against William H. Hyland individually upon the five notes of $1,000 each, given by him, as above stated, to Harriet L. Keith. And at the time the goods in question were replevined the sheriff was in possession of them under executions issued in favor of Elizabeth Hyland and Harriet L. Keith; executions had also been issued upon the Central National Bank judgment, but whether upon the other judgments does not appear.

The first thing that occurs to one in reviewing these facts is, that while Hyland, for his interest in the concern purchased of only one of those at that time interested in such firm, and presumably an equal partner with Phoebe Link, was to pay debts to the amount of $12,000, and the entire indebtedness of the firm, if that was so, must have been greatly in excess of that amount, yet the statement rendered to the mercantile agency, almost immediately upon his becoming a partner, shows the liabilities of the concern to have been only $16,523.67. The same statement shows gross assets of $56,050:71, and net assets of $39,527.04 after deducting $10,000 for poor accounts.

It strikes one as extraordinary, if these statements as to their assets are true, that Hyland should have been able to purchase an equal interest for the sum of $12,000, payable in the manner claimed by him.

In October the new firm incurs an indebtedness of $9,000, having during the previous month made the statement to the commercial agency that they were in the same condition that they were at the time of the March statement.

This indebtedness they seem to have been unable to meet, for on the 22d of Janaury, 1891, an action was commenced against them to recover $6,000. In addition to the firm’s indebtedness it will be observed that Hyland was individually indebted to the amount of $5,000 ; and while such debts are not payable out of co-partnership assets, until the co-partnership debts are paid, still the fact that members of a co-partnership 'are individually indebted does not improve the credit of the concern.-

This then was the condition of affairs at the time of the sale of the property in question, and at the time- the plaintiff was assured that their “ financial condition was all right,” when, in about a month after such sale and assurance of solvency, their store was closed, judgments entered against them, one by default, others by confession, and chattel mortgages upon their property placed in the hands of the sheriff for foreclosure.

Was their financial condition all right at that time when a very few months before that time they had been compelled to borrow money, presumably to carry on their business, and which was due upon demand, and when at the very time of the statement a suit was being prosecuted against them to recover the sum of $5,000, in which suit they made no appearance or defense ?

Upon the part of the defendant, the bookkeeper of the Isaac Keith Company and William H. Hyland were called as witnesses ; they gave no explanation whatever of these facts I have referred to. Hyland, after stating how long he had been in the business, whom he purchased his interest from, and what occupation he had been engaged in prior to going into the co-partnership, testified that at the time of the purchase of the baby carriages the value of the stock of goods of the co-partnership was $20,000, and that the book accounts amounted to about $21,000. The bookkeeper testified that the statement made by him to the mercantile agency was correct, and that the cost value of the stock on hand February first was about $20,000, and the amount' of the book accounts about $21,000. No other evidence on the merits was given on the part of the defense.

The total indebtedness of the Isaac Keith Company does not appear.

It seems to me that these facts present a proper question for a jury to pass upon, to determine whether the sale was in fact induced by fraudulent representations.

The general principles of law by which such a transaction is to be gauged were correctly set forth by the court when the case was heretofore before us. (70 Hun, 405.) And under the principles there stated it seems to me the facts in this case require its presentation to a jury, and, if properly presented, there is no reason why we should disturb the verdict, unless some error was committed in the reception or rejection of evidence.

Upon the whole the trial court seems to have made a fair submission of the facts, and to have committed no substantial error of law in its charge to the jury; most of the objections to the charge argued before us were to portions of it to which no exceptions were taken; the errors pointed out, conceding them to be errors, are .not of sufficient importance to call for the reversal of the judgment because of them.

The only question of importance arising upon the reception or rejection of evidence is upon the reception in evidence of the report of the mercantile agency.

The statement was made to the agency by the bookkeeper of the Isaac Keith Company; he had been connected with the business for a number of years, when it was conducted by Isaac Keith ; when the reporter of the agency called, neither member of the firm was present, and he seemed to have charge of the store; he also furnished the other statements to the agency.

This was the condition of the testimony at the close of the plaintiffs case, and conceding it to be slight evidence of authority to make the statement, still, without that statement being in evidence, there was enough in the case to warrant the court in denying a motion for a nonsuit. So, at that stage of the case, the defendant was not injured by its reception in evidence.

The defendant called both the bookkeeper and Hyland as witnesses, and there is no pretense on their part of any lack of authority to make the statement, and no claim of ignorance on the part of the Isaac Keith Company that any such statement had been made. If there was no authority to make the statement, or if there was a lack of knowledge that it had been made, there was abundant opportunity to show that fact; the witnesses were on the stand by whom it could have been proved, and failure to do so strengthened the evidence of authority already received, and seems to me made it proper evidence to submit to the jury. Failure to controvert a statement adverse to a party when there is an opportunity to controvert, raises a presumption of its truth. (Taylor’s Ev. § 809; Stover v. People, 56 N. Y. 315.)

The judgment should be affirmed, with costs.

Judgment reversed, a new trial granted, costs to abide the event.


source: Caselaw Access Project

author: Herrick, J.:

license: Public Domain

text:
    In the Matter of the Judicial Settlement of the Account of Caleb Randall, as Administrator, etc., of Harvey Randall, Deceased.

      Duty of an administrator to the estate — purchase by an administrator of an interest therein — when it inures to the benefit of the estate —purchases by trustees of claims against or interests in the trust estate.

    It is the duty of the administrator of an estate to husband it and care for it in order to create as much of a fund as possible for division among the heirs and next of kin of the decedent; he is to deal with it for their benefit exclusively, not for his own, and he is to deal with them in relation to it for their benefit, not for his own. The rule is inflexible that a trustee shall not place himself in a position where his interest is or may be in conflict with his duty.
    The interest of an administrator of an estate, as a purchaser of the shares of two of the next of kin of the decedent therein, is necessarily inconsistent with the duty he owes to the beneficiaries of the estate; and where the administrator, who is also an heir at law and next of kin of a decedent, attempts to purchase the interest of another of the heirs at law and next of kin in the estate for his sole benefit and advantage, such purchase inures to the benefit of the estate.
    As a general rule the purchase of claims against, interests in, or legacies payable out of, an estate by a trustee of such estate, is invalid when such interests are purchased for his own benefit; and where such purchases have been made and have resulted profitably to the trustee, it will be held that they were made for the benefit of the estate, and if loss has resulted therefrom the trustee will be charged personally therewith.
    Appeal by Caleb Randall, as administrator, etc., of Harvey Randall, deceased, from portions of a decree of the Surrogate’s Court of the county of Washington, entered in the office of the Washington County Surrogate’s Court on the 9th day of January, 1893, modifying and settling as modified his accounts as such administrator, and also from the orders made on the 19th day of November, 1891, and entered in said clerk’s office, allowing Sarah Randall and Jane Randall to intervene as parties interested in the estate.

      L. Fraser, for the appellant.

      8. W. Russell, for the respondents, Sarah Randall and Jane Randall.
   Herrick, J.:

This is an appeal from a decree made by the surrogate of Washington county settling the accounts of the appellant, Caleb Randall, as administrator.

The decedent, Harvey Randall, died in 1890, without leaving any last will and testament, and leaving him surviving five sisters and two brothers his only heirs and next of kin, two of such sisters being named Sarah and Jane Randall.

The surrogate found that the deceased left an interest in real estate to the value of $16,000 or more, and personal estate, which at the time of the decree was of the value of $53,775.71, and that after the payment of the debts and funeral expenses there was for distribution by the administrator among the respective heirs and next of kin on November 16,1891, a balance of $51,913.22; and that Caleb Randall, Caleb Randall as committee for Aaron Randall, a lunatic, Jane Randall, Sarah Randall, Angeline Andrews, Maria Seers and Caroline M. Randall were each entitled to have and receive one-seventh of such balance, except as the same had been reduced by way of payments or advancements properly applicable as payments thereon.

The appellant takes no exception upon this appeal to the findings or the decree of the surrogate, except in so far as they relate to Sarah Randall and Jane Randall. To Sarah Randall the surrogate found that there was a balance due of $2,911.83, and to Jane Randall a balance of $3,447.70.

He appeals from so much of the findings and decision of the surrogate as determines that the said Sarah and Jane Randall were interested in the estate of the decedent, or that they deceived anything by way of ‘advancement upon their shares therein, and to the order of the surrogate allowing the said Sarah Randall and Jane Randall to intervene upon this accounting as parties interested in said estate.

The appellant’s claim is that the said Sarah and Jane Randall ceased to be interested in such estate by reason of assignments made to him of all their shares and interests therein.

It appears that on the 19th day of August, 1890, Jane Randall executed an instrument, in writing, wherein it is recited that for a consideration of $3,900, to her in hand paid by said Caleb Randall, she sold and assigned to the said Caleb Randall all her share, right, title and interest in and to the personal and real estate of her deceased brother, Harvey Randall, as heir at law, next of kin or otherwise, and authorized the said Caleb Randall to collect and receive the same and every part and parcel thereof.

On the 8th day of October, 1890, Sarah Randall executed a similar instrument, in writing, the consideration for which was named therein as being the sum of $1,100.

Both Sarah and Jane Randall, at the time of the death of their brother Harvey, were living in the State of Michigan, and had been living there for many years. Sarah was seventy-four years of age and Jane seventy-nine. Neither of them had been at their brother’s for a great many years; neither of them knew the amount of property he was worth at the time of his decease.

Sarah testifies that the appellant told her the estate amounted to' about $33,500, and Jane testifies that he told her that the estate was worth about $38,500; each testifies in substance that he stated that their shares amounted to not more than the amount specified in the bill of sale or assignment; that if it was found that their share amounted to more that he would pay the overplus.

The appellant disputes the stories of his sisters, Sarah and Jane, and claims that the assignments in question were absolute assignments to him of all their right, title and interest in the estate, and entitle him to have and receive all their shares in the estate, and that there was no agreement on his part to pay them any additional sum if, upon the settlement of the estate, their interests therein should prove to be greater than the amount he had paid them. There is a sharp conflict of testimony as to what the real nature of the transactions was between the appellant and his two sisters.

The surrogate has found, upon all the testimony, that the appellant knew the character, quality and value of the property, both real and personal, of which decedent died possessed. That neither Jane nor Sarah Randall had at any time before the hearing upon the accounting before him any knowledge of the value of the estate of which said decedent died possessed, except such as was acquired by them from the statements of the administrator made to them together and separately; that such statements were made to Sarah and Jane by the appellant for the purpose of obtaining undue, unjust and wrongful advantage over them, and that he represented to them and to each of them that the value of both the real and personal estate was much less than it really was,' and represented that it was of much less value than he well knew it to be, and that they and each of them relied upon such representations.

The appellant asks us to review such findings of fact, and also asserts that the surrogate had no power or authority to determine whether such assignments were fraudulently obtained or not; that they could only be set aside in a proceeding brought for that purpose in a court of equity.

I do not think it is necessary to enter into an investigation of these latter questions; assuming the appellant to be correct in the position that he has taken in relation to them, I do not see how, upon the facts as they appear in this case, and the law, as I understand it, applicable to such facts, he has been injured.

The purchase that he claims to have made, it seems to me, must be held to have been made for the benefit of the other beneficiaries of his trust; the relation that he held to the estate prevented his having any transactions in relation to it that would result in any pecuniary benefit to himself, coupled with detriment to any of the other heirs or next of kin of the decedent.

The transaction that he entered into with Sarah and Jane Randall was not simply one of release of their interest in the estate, as in The Matter of Pruyn (141 N. Y. 544), but was a purchase, or attempted purchase, of their interest in the estate, for the sole benefit and advantage of the appellant.

As a purchaser his purchase inures to the benefit of the estate, or, treated as a release from all claim against the estate for less than its value made for the other beneficiaries, the remaining heirs and next of kin would be entitled to the benefit of such transaction ; but they have not appealed from the decision of the surrogate, and the appellant’s appeal is not in their behalf, because they were awarded too little in the distribution of the estate; but it is in his own behalf, because the shares of Sarah and Jane Randall were not set apart to him as the assignee of their interests, and further, that there was awarded to them the difference between the amount of their interests and the sum that he paid to them upon the attempted purchase of such interest from them.

The appellant occupied to the estate of the decedent, and to his heirs and next of kin, the position of a trustee pure and simple.

“ Absolute and mo'st scrupulous good faith is the very essence of the trustee’s obligation. The first and principal duty arising from this fiduciary relation is to act in all matters of the trust wholly for the benefit of the beneficiary. The trustee is not permitted to manage the affairs of the trust, or to deal with the trust property so as to gain any advantage, directly or indirectly for himself, beyond his lawful compensation.” (Pom. Eq. Juris. § 1075.)

Treated either as a purchase of an interest in the estate, or as a claim against it, it seems to me that the transaction between the appellant and Sarah and Jane Randall cannot be upheld for the benefit of the appellant.

“ If the trustee or executor compounds debts or mortgages, or buy in for less than is due, he shall not take the benefit of it to himself, for when he takes a trust he is to take it for the benefit of the cestui que trust.” (Van Horne v. Fonda, 5 Johns. Ch. 388; Swinburne v. Swinburne, 28 N. Y. 568.)

No party can be permitted to purchase an interest in property and hold it for Ms own benefit, when he has a duty to perform in relation to such property which is inconsistent with the character of a purchaser on his own account and for his own individual use. (Van Epps v. Van Epps, 9 Paige, 237; Colburn v. Morton, 1 Abb. Ct. App. Dec. 378.)

The reasons for prohibiting transactions between a trustee and his cestxñ que trust are fully set forth in the case of Ten Eyck v. Craig (62 N. Y. 406-419).

As administrator of the estate it is the duty of the appellant to husband it and care for it, so as to create as much of a fund as possible for division amongst the heirs and next of kin of the decedent; he is to deal with it for their benefit exclusively, not for his own; he is to deal with them in relation to it for their benefit, not for his.

The rule is inflexible that the trustee shall not place himself in a position where his interest is or may be in conflict with his duty. (Ten Eyck v. Craig, 62 N. Y. 406-419.)

The appellant’s interest as a purchaser in his own behalf was ■necessarily inconsistent with the duty he owed to the beneficiaries •of the estate.

This case presents an object lesson of the propriety of the rule prohibiting transactions between a trustee and his cestui que trust and prohibiting trustees from purchasing property which they hold in trust. It has resulted in grave misunderstandings between the parties and false swearing as to what the real transaction was, and of serious scandal upon the administration of trust estates, and if the appellant’s position be upheld it will result in the loss of a. large portion of their shares in the estate to which two of the heirs- and next of kin were entitled.

The appellant, from the nature of his relation to the estate, knew its resources and its value better than any one else. The parties with whom he was dealing lived and had lived for many years at a distance from where the estate had been accumulated; they were-advanced in years and could not deal with the appellant on equal terms.

There are cases where confidential relations have existed between the parties, or where one party to the transaction has occupied a-position of trust in relation to the other, or where there has been opportunity for the exercise of undue influence, where the courts-have held that such relation cast the burden of proof upon the purchaser of establishing the good faith of the transaction, and that it had not resulted to the detriment of the other party. But. this case is not simply a case where confidential relations existed between the parties, or where there was an opportunity for the exercise of undue influence, but in addition is one of dealing between a trustee and his cestui que trust, pure and simple, and where also it appears that such dealing, if upheld, will result in large pecuniary gain to the trustee, personally, and a corresponding loss to the cestui que trust.

The fact that the trustee will largely profit and that the cestui quetrust will lose, is not necessarily a controlling element; in a large number of instances it must necessarily be impossible for the court to discover what advantages have been derived by the trustee, and what injury has been sustained by the cestui que'trust, and the only safety lies in maintaining, as a general rule, the invalidity of purchases of claims against, interests in, or legacies payable out of, estates, by the trustee of such estates, when purchased for their own benefit; and where such purchases have been made, and have-resulted profitably to the trustee, to hold that they are made for the-benefit of the estate, and, if loss has resulted, to charge such to the trustee personally.

It results from this that whether we treat the transaction of the appellant with Sarah and Jane Bandall as invalid and of no kffeet, or as transactions that inure to the benefit of the remaining heirs and next of lrin to the decedent, the appellant has not been injured by the decree of the surrogate, and has no cause of appeal therefrom.

The decree should, therefore, be affirmed, with costs and disbursements, to be paid by the appellant personally.

Mayiiam, P. J., and Putnam, J., concurred.

Decree affirmed, with costs and disbursements of the appeal, to be paid by the appellant personally.


text:
    Alida J. McNutt, Respondent, v. William Hilkins and Another, Appellants.

      E lection between inconsistent remedies — once made is final — action of conversion— when not a bar to one for a breach of contract.

    Where there exists an election between inconsistent remedies, the party is confined to the remedy which he first prefers and adopts. He is not entitled to both remedies, and the selection of one precludes a resort to the other.
    Upon a given state of facts a party may have the right to disaffirm a contract, and either retake by replevin goods delivered thereunder or sue for their wrongful conversion.
    Where the sale of goods has been procured by fraudulent representations, the vendor may rescind the sale and replevin the goods, or ratify the sale and sue for the purchase price, or where property has been wrongfully converted the owner can waive the tort and sue for the purchase price upon an implied contract of sale; but he must do one or the other, and any decisive act of his, with full knowledge of all the facts, determines his election.
    By bringing one action he waives the right to bring the other, and when he has once made liis election or determination it is determined forever.
    The mere bringing of a former action upon the same state of facts does not necessarily preclude a party from bringing a second action, and the institution by a party of a fruitless action, which he has not the right to maintain, will not preclude him from asserting the rights he really possesses.
    An action brought for the conversion of personal property wherein it was successfully maintained by the defendant that the title to the personal property alleged to have been converted was in him, and in which judgment was rendered in his favor, is not a bar to a subsequent action between the same parties brought to recover damages for a breach of the contract of sale of such. property.
    Appeal by the defendants, William Hilkins and another, from a judgment of the .County Court of Warren county in favor of the plaintiff, entered in the office of the clerk of the county of Warren on the 19th day of March, 1894, upon the decision of the court, reversing the judgment of a justice of the peace of the town of Queensbury, Warren county.

      Cameron <& McArthur, for the appellants.

      James U. Bam,, for the respondent.
   Herrick, J.:

This is an appeal from a judgment of the County Court reversing a judgment of the Justice’s Court.

The plaintiff brought her action in the Justice’s Court alleging that the defendants were co-partners, and that in the month of August, 1893, she sold and delivered to the defendants a team of horses and set of double harness for the sum of $300, which the defendants agreed and promised to pay for by boarding the plaintiff and her family for five months, at The price of $60 per month ; that the defendants boarded the plaintiff ¡and her family for two months only, but refused and neglected to board them for any further length of time, and that by reason thereof the plaintiff sustained damages in the sum of $180.

The defendants in answer deny each and every allegation in plaintiff’s complaint, and allege that before the commencement of the present action the plaintiff commenced an action before a justice of the peace against the same defendants, for the cause or causes of action set forth in the complaint herein, in which the defendants recovered judgment against this plaintiff for the sum of two dollars and thirty cents costs.

Upon the trial of the present action it was stipulated between the parties that the judgment rendered in the former action and the record thereof, together with all the proceedings had therein, and the evidence, testimony and proof taken upon the trial thereof, should be made the evidence, testimony and proof in this action. As a matter of fact, such judgment and record thereof and the proceedings, evidence and testimony taken in the first-named action in the Justice’s Court constitute all the evidence and testimony given and taken in the action now to be considered.

In the first action brought by the plaintiff against the defendants, the plaintiff in her complaint alleged that she was the owner of a-team of horses and set of double harness, which came into the possession of the defendants about the month of September, 1893, and that the defendants wrongfully and unlawfully sold and disposed of said horses and harness, appropriated and converted the same to their own use and benefit, and that at the time of such conversion the horses and harness were worth the sum of $200, and she demanded judgment against the defendants for the sum of $200.

The result of such action, as before stated, was a judgment in favor of the defendants and against the plaintiff for the costs of the action.

This second action resulted, like the first, in a judgment in favor of the defendants and against the plaintiff for costs. The • plaintiff appealed to the County Court, which reversed the judgment, and the defendants, upon the reversal of the judgment, appeal to this court.

The defendants, who appeal from the judgment of the County Court to sustain the judgment recovered by them in the Justice’s-Court, assert that the plaintiff is precluded by the action she first brought in the Justice’s Court for a conversion of the horses and harness by the defendants, from now bringing another action for the purchase price, or for damages for breach of contract of sale of such horses and harness, and the only question to be passed upon in this appeal is the effect which the plaintiff’s commencing the first action had upon the second.

The doctrine is well settled that where there exists an election between inconsistent remedies the party is confined to the remedy which he first prefers and adopts. (Morris v. Rexford, 18 N. Y. 552; Greton v. Smith, 33 id. 245; Bank of Beloit v. Beale, 34 id. 473; Rodermund v. Clarke, 46 id. 354.)

The party is not entitled to both remedies, and the selection of' one precludes a resort to the other. (Strong v. Strong, 102 N. Y. 69.)

Upon a given state of facts the party may have the right to dis-affirm the contract, and either retake the goods by replevin or sue for their wrongful conversion. (Kennedy v. Thorp, 51 N. Y. 174.)

Or where the sale of goods has been procured by fraudulent representations the vendor may rescind the sale and replevin the goods, or ratify the sale and sue for the purchase price, or where property has been wrongfully converted the owner can waive the tort and sue for the purchase price upon an implied contract of sale. (Terry v. Munger, 121 N. Y. 161; Wise v. Grant, 140 id. 593.)

But he must do one or the other, and any decisive act of his, with full knowledge of all the facts, determines his election. (Fowler v. Bowery Savings Bank, 113 N. Y. 450.)

And by bringing one action he waives his right to bring the other. (Conrow v. Little, 115 N. Y. 387.)

And when he has once made his election or determination it is determined forever. (Moller v. Tuska, 87 N. Y. 166; Powers v. Benedict, 88 id. 605.)

Did the plaintiff in this case make an election between remedies open to her ?

Upon the former trial the plaintiff claimed that she sold the horses and harness for the sum of $300, to be paid for by boarding herself and family for five months, sixty dollars per month; and that the horses and harness were to remain her property until the boai-d had been furnished, and that she was boarded for two months only.

The defendants, in opposition to her claim, contended that the sale was an absolute one, that the title to the horses and harness passed to them at once, and, in addition thereto, that thereafter, upon defendants dissolving the co-partnership, the defendant Hilkins bought out Lavoy and gave said team of horses and harness to Lavoy in part payment of the purchase price, with the knowledge and consent of the plaintiff, the understanding being that Hilkins was to continue keeping the hotel, and the plaintiff could board ■with him.

Upon that claim raised by them of an absolute sale, the defendants succeeded.

Under such condition of facts, I do not think it can be said that fhe plaintiff has made an election of remedies; she simply made a mistake as to what her remedy was; there being an absolute sale and passage of the title to the defendants, she of course could not maintain an action against them for conversion.

The case of Morris v. Rexford (18 N. Y. 552) was one to recover the purchase price upon an alleged sale of goods, and it appeared that prior to that time the plaintiff had brought actions in replevin against other parties through whose hands they passed, or were to pass, to Bexford, in which the sheriff had taken possession of the goods and delivered them to the plaintiff, and so far as appeared in the ease the actions for replevin were still pending. And the court there held that the plaintiff had made his election of remedies and must abide by it; but recognized the fact that if the plaintiff had no cause of action in replevin, and had no rightful claim to the goods, that then the fact that such actions in replevin had been commenced by him would be no bar to an action for the purchase price, stating: “ If it shall appear on another trial that no such right of election existed, then the replevin suits will have no effect at all upon the present controversy and the plaintiff will be entitled to recover, provided the jury shall again find that the defendant was the purchaser.” (See page 55Y.)

The mere bringing of a former action upon the same state of facts does not necessarily preclude a party from bringing the second.

The institution by a party of a fruitless action, which he has not the right to maintain, will not preclude him from asserting the rights he really possesses.” (Kinney v. Kiernan, 49 N. Y. 164.)

The defendants by their contention succeeded in establishing that there had been an absolute sale, and that, therefore, the plaintiff had mistaken her remedy, and they cannot now set up the judgment which they then obtained to prevent the plaintiff recovering the purchase price of the property which they formerly urged and established was sold to them by her, and which it is conceded they have not paid for, and thus not only retain the property, but also the purchase price.

The judgment of the County Court should be affirmed, with costs.

Matham, P. J„, and Putnam, J., concurred.'

Judgment of the County Court affirmed, with costs.


author: HbebicK, J.:

text:
    Sidney E. Maders, as Receiver, etc., of William I. Whallon, Respondent, v. William I. Whallon and Another, Appellants, Impleaded, etc.

      Fraudulent comeyanee — sufficiency of the complaint in a creditor's suit —allegation that the transfer was made with the intent to hinder, delay and defrcmd creditors — exchange of property — when apcvrt of the fraudulent scheme.

    Where the complaint in an action, brought by a receiver to set aside a transfer of real estate by a judgment debtor as fraudulent and void as to creditors, alleges that the defendant “has no other property, and had no other property subject to levy and sale on execution at the time of or since the date of said conveyance, or since the rendition of the judgment, other than that embraced in the aforesaid conveyance, and the bond and mortgage given in pursuance thereof, out of which the aforesaid judgments or either could be satisfied in whole or in part, and that unless the said property can be reached and applied to the payment of said judgments, the same must remain wholly unpaid,” it is sufficient notwithstanding the fact that it alleges that the grantee gave back a bond and mortgage for the entire purchase price of the real estate, thus showing property in the hands of the debtor which might be applied to the satisfaction of the judgment.
    The general allegation that a conveyance or transfer of property was made with the intent to hinder, delay and defraud creditors is broad and sweeping in its operation and effect. It involves many elements, and may, before it can be deemed established, require proof of many facts and circumstances which may be given in evidence under the general charge without inserting them in the pleading.
    Exchanges by which one kind of property is converted into another more easily concealed or transported, the incumbrance of visible property, and the retention of that which is convertible, or even the reverse of this, where the aggregate value of the debtor’s property is not diminished, but an apparent obstacle to a creditor’s proceedings is created, are among the methods by which frauds may be perpetrated by an insolvent debtor.
    Reabg-ument of an appeal taken by the defendants, William I. Whallon and William J. McAuliff', from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Essex county on the 3d day of March, 1893, upon a decision of the court rendered after a trial by the court without a jury at the Essex Circuit, the opinion delivered on which appeal is reported in 74 Hun, 372.

      E. T. Brackett, for the appellants.

      G. B. McLaughlin, for the respondent.
   HbebicK, J.:

This case is now before ns upon a reargument pursuant to permission of the court heretofore granted.

The facts in the case are substantially stated in the report of the case when it was before passed upon by this court (74 Hun, 372), and there is no occasion to rehearse them now, but such facts as were not adverted to upon such former decision, that may be necessary to refer to in the .course of this discussion, will be mentioned.

Since this case was formerly before us the case of Kain v. Larkins (141 N. Y. 144) has been decided by the Court of Appeals, and a rule announced as to what is necessary in a complaint in an action of this character different from what this court apparently understood the rule to be.

An inspection of the record in the case of Kain v. Larkins shows the complaint in that case to have been substantially the same as the complaint in this case ; in neither is there any allegation of the insolvency'of the defendant, and in the Kain case there is no allegation that the defendant had no other property out of which the plaintiff could collect his judgment other than that alleged to have been fraudulently conveyed. In this case the complaint as amended alleges that the defendant “.has no other property, and had no other property subject to levy and sale on execution at the time of or since the date of said conveyance, or since the rendition of the judgment, other than that embraced in the aforesaid conveyance, and the bond and mortgage given in pursuance thereof, out of which the aforesaid judgments or either could be satisfied in whole or in part, and that unless the said property can be reached and applied to the payment of said judgments the same must remain wholly unpaid.”

It will be recalled that the complaint in this action shows that, upon the conveyance being executed by the defendant "William I. Whallon of the real estate in question, the grantee McAuliff gave back a bond and mortgage for the entire purchase price, and the criticism is made that the complaint showing the execution and delivery to the defendant of this bond and mortgage indicates that the defendant was not, in truth and fact, insolvent, but that he apparently had property in his hands, to wit, the bond and mortgage out of which the plaintiff might collect his judgments.

There is much force, it appears to me, in such criticism, and yet, under all the facts in the case, it does not appear to me that such weight should be given to it as to call for a reversal of the judgment.

Let us test the complaint, however, by the case of Kain v. Larkins. It shows the recovery of judgments against the defendant Whallon, the return of executions unsatisfied, the appointment of the plaintiff as receiver of the property of the defendant Whallon.

That after the commencement of the actions in which said judgments were obtained the defendant Whallon conveyed all his property to the defendant McAuliff; that such conveyance was without consideration, and was made by Whallon and accepted by McAuliff with intent to delay, hinder and defraud the creditoz’s of Whallon.

As was said in the Kain case, if we assume all the facts so alleged to stand admitted upon the record, “ they establish a cause of action by a judgment creditor against the defendant in the execution, and his fraudulent grantees or transferees, entitling him to equitable relief.”

A fraudulent intent on the part of the gi’antor and grantee is averred. The evidence necessary to support these allegations of a fraudulent intent may be, and usually is, made up of many different facts and circumstances, but it is not necessai-y to insert them in a pleading, and it is generally improper to do so. The pecuniary condition of the defendant at the time, the extent of his property, the part transferred and that retained, as well as the nature and extent of the plaintiff’s claim, which subsequently ripened into a judgment, were all facts bearing on the genei’al allegation of fraud. The plaintiff could prove all these facts and circumstances under her complaint. The general allegation that a conveyance or transfer of pi’operty was- made with the intent to hinder, delay and defraud creditors is broad and sweeping' in its opei-ation and effect. It involves many elements, and may, before it can be deemed established, require proof of many other facts and circumstances which may be given in evidence under the genei’al charge, without inserting them in the pleading.”

The evidence in this case shows that the defendant McAuliff, to whom the conveyance in question was made, was pecuniarily irresponsible, and a relative of the defendant Whallon; that Whallon remained upon the farm the same as before the alleged sale; that lie took the mortgage for $5,000; that the bond and mort-, gage which he received from McAuliif as the purchase price, of the farm he took to Canada, and sold it to a man, who was a stranger to him, for the sum of $750, which sum of money lie says that he has expended in living expenses and in paying his debts; so that at the time of the commencement of this action the defendant Whallon had not only parted with the real estate and personal property owned by him to the defendant, McAuliif, but, if he is to. be believed, had also transferred the title of the mortgage he had received in payment therefor to a person, living beyond the jurisdiction of the courts of this State, so that he had no property which could be reached by execution or otherwise, to satisfy the judgments wherein the plaintiff was appointed receiver,, unless the conveyance in question should be set aside as fraudulent.,

Under the language used by the Court of Appeals in the Kain case, can there be any doubt but that all the facts just recited as fo. the giving of the mortgage and the subsequent disposition of it,, could be given in evidence to establish the fraudulent character of, the whole transaction, and as being part of the means resorted to to perpetrate the fraud ?

It was not necessary to set forth the execution and delivery of the mortgage in the complaint; it could have been given in evidence, without pleading it, as part of the chain of evidence to establish the' fact that the conveyance was fraudulent; it was evidence and as. such was not necessary to be pleaded. .

But, being unnecessarily pleaded, and without alleging the further facts that the defendant had also parted with it, without any, or for* an insufficient, consideration, to a person beyond the jurisdiction of-our courts, it seems to me that the defect thus created in the complaint, if it was a defect, was cured by the facts proved upon the trial that the defendant had parted with the mortgage for -the consideration and under the circumstances I have -related, which facts, as before stated, could have been proved if nothing had been said in the complaint about the bond and mortgage.

But, in addition, it may be said that the allegation in the complaint of the execution and delivery of the bond and mortgage, and not coupling with it an allegation that the defendant had subsequently parted with it, is making a statement that the defendant had converted or attempted to convert his real estate into personal property; he had exchanged a deed for a bond and mortgage.

It is a recital by the plaintiff of the method of the fraud; he couples' his narration of the exchange of the defendant 'Whallon’s title to the property in question to a bond and mortgage upon the same property, with an allegation that such transaction was made with an intent on the part of both parties to hinder, delay and defraud creditors.

Such exchange may be fraudulent, although the party does not at once part with what he has received for his property.

Exchanges by which one kind of property is converted into another more easily concealed or transported; the incumbrance of visible and unavailable ju'operty, and the retention of that which is convertible, or even the reverse of this, and other cases, where the aggregate value of the debtor’s property is not diminished, but an apparent obstacle to a creditor’s proceedings is created, are among the methods by which frauds may be perpetrated by an insolvent debtor.” (Billings v. Russell et al., 101 N. Y. 226-231.)

The plaintiff has complained that the defendant, for the purpose of hindering, delaying and defrauding his creditors, conveyed away his real estate, and took therefor a bond and mortgage; he has proved not only what he alleged, but, in addition, that the defendant has, for an insufficient consideration, which he has also parted with, conveyed away'the bond and mortgage to a stranger beyond the jurisdiction of the court, thus completely stripping himself of all property.

The plaintiff has alleged and proved a state of facts entitling him to relief.

The judgment should be affirmed, with costs.

PutNAm, J., concurred; Mayham, P. J., dissenting.

Judgment affirmed, with costs.


author: Herrick, J .:

text:
    Bernhard Liebstadter, Respondent, v. Nathan Federgreen, Appellant.

      Physical possession of real estate — not alone sufficient to justify a forcible ejectment ■ therefrom, — menace of violence — when an asscmlt — verdict not excessive.

    The mere actual physical possession of premises by a person is not alone sufficient to justify him in using force and violence either to prevent the entry of the lawful occupant thereon or, after he has entered, to eject him therefrom.
    The menace of violence with a dangerous weapon by a person within striking distance of the party menaced is an assault, although the person menaced is not actually struck, and damages may be recovered for such assault.
    Where, in an action brought to recover damages, the verdict rendered by the jury is not so large as to indicate passion, corruption or prejudice, it should not be set aside as excessive.
    Appeal by tbe defendant, Nathan Federgreen, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Sullivan on the 29th day of September, 1893, upon the verdict of a jury for $350, rendered after a trial at the Sullivan Circuit, and also from an order entered in said clerk’s office on the 29th day of September, 1893, denying the defendant’s motion for a new trial made upon the minutes.
    The action was brought to recover damages resulting from an alleged assault committed by the defendant upon the plaintiff.

      George II. Carpenter, for the appellant.

      T. F. Bush, for the respondent.
   Herrick, J .:

"When the plaintiff hired the store of the defendant he took that store as it had been theretofore used and occupied by the defendant himself; that gave him the right to the use of the cellar.

The defendant, by surreptitiously and wrongfully barring plaintiff’s access to the cellar, did not thereby acquire a lawful possession thereof, within the meaning of Bristor v. Burr (120 N. Y. 431) which would entitle him to resist with force and violence the efforts of the plaintiff to enter thereupon. The mere actual physical possession of premises by a person is not alone sufficient to justify him in using force and violence either to prevent the entry of the lawful occupant thereon, or, after he has entered, to eject him therefrom.

The menace of violence with a dangerous weapon by a person within striking distance of the party menaced is an assault, although the person menaced is not actually struck, and damages may be recovered for such assault.

The amount recovered in this case, while it seems large, yet is not so large that we can say it is evidence of passion, corruption or prejudice, and the finding of the jury should not, therefore be disturbed.

The judgment should be affirmed, with costs.

Mayham, P. J., concurred.

Judgment affirmed, with costs.


text:
    In the Matter of the Proceedings to Extend South Market Street in the Village of Johnstown through Lands of Mortimer Wade and Others.

      Condemnation proceedings for street purposes — a special pi'oceeding — costs of appeal therein under § 3240 of the Code of Civil Procedure— costs allowed by chapter 270 of 1854.
    An application for an order appointing commissioners to appraise the damages caused by the extension of a street is a special proceeding, from the order made in which an appeal may be taken.
    Under the provisions of section 3240 of the Code of Civil Procedure, costs upon an appeal to a court of record in a special proceeding, where they are not specially regulated by the Code, may be awarded to any party in the discretion of the court, at rates allowed for similar services in an action brought in the same court, or on an appeal taken in like manner from a judgment in the same court. A proceeding taken under the General Railroad Act is a special proceeding, and under the provisions of chapter 270 of the Laws of 1854, costs should be allowed in such proceeding the same as in a civil action.
    Motion to modify and correct the entry in the clerk’s minutes of a decision of an appeal in the above-entitled proceeding.

      Edwin Baylies, for the appellant Younglove.

      Andrew J. Nellis, for the Tillage of Johnstown.

      Philip Kech, for "Wade and others.

      Henry W. Thome, in person.
   Herrick, J.:

Tliis is a motion to modify and correct a memorandum of the decision of the appeal in the above-entitled matter, entered upon the clerk’s minutes, so as to award to the appellants costs at the same rate, as on appeal to this court in the final judgiiient in the action.

The appeal in this case was taken from an order of the Special Term appointing commissioners to ascertain and assess the damages claimed by the landowners in proceedings - for the extension of South Market street in the village of Johnstown.

The proceeding to extend South Market street was an exercise of the right of eminent domain; it was a condemnation of land for public purposes, and it has been repeatedly held that proceedings for railway purposes were special proceedings; that an order appointing commissioners to appraise damages was a special piuceeding from which an appeal might be taken as such. (R. & S. R. R. Co. v. Davis, 43 N. Y. 137; Matter of Fowler, 53 id. 60.)

So, also, proceedings to take land for public streets, or for the purpose of building a sewer, have been held special proceedings. (Matter of One Hundred and Sixty-third Street, 61 Hun, 365; Matter of Wells Ave. Sewer, 46 id. 534.)

By section 3240 of the Code of Civil Procedure, it is provided that costs upon an appeal in a special proceeding taken to a court of record, where they are not specially regulated by the Code, may be awarded to any party in the discretion of the court, at rates allowed for similar services in an action brought in the same court, or on an appeal taken from a judgment in the same court in a like manner.

By chapter 270 of the Laws of 1854, it was provided that “ in special proceedings and on appeals therefrom costs may be allowed in the discretion of the court, and when allowed shall be at the rate allowed for similar services in civil actions.”

And it was held that a proceeding under the General Railroad Act was a special proceeding, and that under such statute costs should be allowed in such proceeding the same as in a civil action. (R. &. S. R. R. Co. v. Davis, 55 N. Y. 145.)

In the Matter of Holden (126 N. Y. 589) it is held that section 3240 embodies that portion of chapter 270 of the Laws of 1854 above quoted, and the court approves of the decision of the Davis case. And in The Matter of Wells Avenue Sewer (supra), a proceeding to procure an easement in lands to construct a sewer, it was held that the proceeding was a special one under section 3240 of the Code.

The motion should be granted.

Mayham, P. J., and Putnam, J., concurred.

Motion to amend order so as to award appellant costs at the same rate as upon an appeal from a final judgment in an action granted.


author: IIekrtok, J.:

text:
    Bridget Furlong, Appellant, v. Justus L. Banta and Another, Respondents.

      A judgment concludes a pa/rty only in the character in which he was sued.

    To render a judgment roll admissible in evidence, for the purpose of concluding the parties as to the facts litigated in a former action, it is not sufficient that the facts or issues should be the same in both actions; in addition thereto, the parties in the second action must have been parties in the first action, or their privies, and the judgment therein must be conclusive as to both parties.
    A former judgment concludes the party only in the character in which he was sued, and, therefore, a judgment for or against an executor, administrator, assignee or trustee, as such, does not necessarily preclude him, in a different cause of action affecting him personally, from disputing the findings or judgment although the same questions are involved.
    In an action brought to recover damages for the death of the plaintiff’s child while in the employ of the defendants, caused by the alleged negligence of the defendants, the judgment roll in an action brought by the plaintiff as guardian ad litem of the child thus injured against the same defendants because of the same injuries, which resulted in favor of the plaintiff, is not admissible in evidence in the second action for the purpose of showing that the defendants were guilty of negligence in causing the injuries to the plaintiff’s deceased child, and that the child was not guilty of contributory negligence.
    Appeal by the plaintiff, Bridget Furlong, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the comity of Montgomery on the 22d day of January, 1894, upon the verdict of a jury, rendered after a trial at the Montgomery Circuit, dismissing the plaintiff’s complaint upon the merits, and also from an order entered in said cleric’s office on the 22d day of January, 1894, denying the plaintiff’s motion for a new trial made upon the minutes.

      Z. S. Westbrook, for the appellant.

      Okas. S. Wisbet, for the respondents.
   IIekrtok, J.:

This is an appeal from a judgment entered upon the verdict of a jury in favor of the defendants.

The appellant, .the mother of one Joseph M. Furlong, an infant, brought an action against the defendants to recover damages for the loss of the services of her infant son by reason of injuries received by him while in the employ of the defendants, which injuries it is alleged occurred through the negligence of defendants.

Upon the trial it appeared that the appellant, as guardian ad litem tor her said infant son, had recovered a judgment against the defendants in behalf of her said son for the same injuries suffered through the same accident.

■Upon the trial in this action appellant’s counsel offered in evidence the judgment roll in the former action for the purpose of showing that the defendants were guilty of negligence in causing the injury to Joseph 1VI. Furlong, and also that he was not guilty of contributory negligence.

The court refused to receive the judgment roll in evidence, to which the appellant excepted, and the principal question argued before us upon this appeal was the ruling of the court in refusing to admit such judgment roll in evidence upon the trial.

To render a judgment roll admissible in evidence for the purpose of concluding the parties as to the facts litigated in the former action, it is not sufficient that the facts or issue should be tlie same in both actions; in addition thereto, the parties in the second action must have been parties in the first action, or their privies, and the judgment therein conclusive as to both parties, the judgment being-received in evidence on the principle of estoppel, to which it is essential that it should be mutual. (Booth v. Powers et al., 56 N. Y. 22.)

If the former action in which the appellant was the party as gtbcvrdicm ad litem, had resulted in a judgment against her and in favor of the present defendants, I do not think that it would have prevented her maintaining an action in her own behalf for the loss of the services of her son, for the rule is, that a former judgment concludes the party only in the character in which he was sued; and, therefore, a judgment for or against an executor, administrator, assignee or trustee, as such, presumptively does not preclude him in a different cause of action, affecting him personally, from disputing the findings or judgment, though the same questions are involved.” (Collins v. Hydorn et al., 135 N. Y. 320.)

If the appellant would not be bound by a judgment against her in the former action, it does not seem to me that the defendants áre bound in this action by the judgment against-them in the said former action; the estoppel is not mutual.

I do not undertake at this time to say that a judgment roll like the one in question is not admissible in evidence for any purpose between parties situated in relation thereto as are the parties to this action, but simply jjass upon its admissibility in evidence for the purposes for which it was offered upon the trial in this action.

The exceptions to the rejection of the testimony of the witness Liddell I do not think can be sustained upon this appeal, for the reason that all the evidence in the case is not before us, and there is, therefore, nothing by which we are able to say that the. exclusion of such evidence was harmful to the appellant.

There may have been an abundance of other evidence in the case upon the same subject; and, therefore, if for no other reason, we should refuse to reverse the judgment for the error complained of in that behalf.

The judgment should be affirmed, with costs.

Mayiiam, P. J., and Putnam, J., concurred.

Judgment affirmed, with costs.


author: Mayham, P. J.:

text:
    George N. Manchester and Another, Appellants, v. The Guardian Assurance Company, Respondent.

      ■Fire insurance policy — failure to indorse thereon a transfer of the title to the premises insured — a parol promise of the general agent of the insurer to make the indorsement is ineffectual.

    The owner of a policy of fire insurance cannot rely upon the parol executory promise of the general agent of the insurer to perform an act, the performance of which, if omitted, would work a forfeiture of the policy.
    A policy of fire insurance contained a provision to the effect that the entire policy', unless otherwise provided hy an agreement indorsed'thereon or added thereto, should become void if any change should take place in the interest or title of the assured in the insured premises. The assured transferred the real estate , covered hy such policy, and thereafter the premises were totally destroyed hy fire. At the time of the transfer of the premises he notified the general agent of the insurer, who was authorized to indorse a iriemorandum of- transfer upon the policy, of the fact of such sale and conveyance, and requested him to makesucli indorsement upon the policy (then on deposit in a savings bank), which, the agent promised to attend to, hut which he failed to do before the occurrence of the fire.

      Held, that the parol agreement of the agent of the insurer to indorse the transfer clause upon the policy, which was not then presented to him, was ineffectual to prevent the forfeiture of the policy, and that the policy was vitiated under the stipulations therein contained, on account of the failure to have the transfer of the premises noted thereon.
    Appeal by the plaintiffs, George N. Manchester and another,, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Rensselaer on the 6th day of March, 1893, upon the dismissal of the complaint directed by the court after a trial at the Rensselaer Circuit, notwithstanding-the verdict of the jury in favor of the plaintiffs.

      Charles P. Patterson, for the ajipellants.

      A. II. Sawyer, for the respondent.
   Mayham, P. J.:

On the 8th day of January, 1889, Ebenezer S. Strait, who was on that day the owner of lands in the. town of Brunswick, Rensselaer eounty, on which there was a dwelling house, procured from the defendant an insurance policy on the same for $2,000 against lose- and damage by fire, in tlie ordinary form of standard fire insurance policies of the State of New York.

At tlie time of tlie issuance of this insurance policy tbe premises insured were subject to three several real estate mortgages aggregating at the sum of $16,000. The policy was prepared and delivered to Strait by the general agents of the defendant at the city of Troy, who were furnished by the defendant with policies in blank signed by the proper officers of the company, and such general agents were authorized by the company to receive applications for insurance and to issue policies thereon, which became binding upon the defendants on being signed by the agents, who were also authorized to continue policies in force and make all proper indorsements thereon on the transfer of property by any transfer of title thereto, and to renew policies 'and continue the insurance for the benefit of persons acquiring an interest in the insured property in the manner provided by the terms and conditions of the standard fire insurance policies •of the State of New York.

On the 1st day of August, 1890, Ebenezer S. Strait, the owner of the insured premises to whom this policy was issued, conveyed the same to Emily J. Manchester, one of the plaintiffs, who went into possession. On the 21st of September, 1890, tlie building covered by this policy was completely destroyed by fire.

After the fire, George N. Manchester, the other plaintiff in this action, purchased all the outstanding mortgages on these premises.

At the time of the transfer of these premises by Strait to Mrs. Manchester, lie informed her of this policy, and that the same had been transferred to the Troy Savings Bank as collateral to a mortgage held by that bank on the premises, and he, as the agent of Manchester, notified the general agent of the defendant, who wrote this policy and who was authorized to indorse the memorandum of transfer upon the same, of the fact of such sale and conveyance, and requested him to make such indorsement upon the policy then •deposited in the savings bank, which said agent, as was found by the jury, promised to attend to, but which he failed to do before the happening of this fire.

For this failure or neglect to indorse such transfer in writing on -the policy, the defendant insists that the policy is avoided, and the trial court sustained that view and dismissed the plaintiff’s complaint. The principal question urged on this appeal is as to whether the promise of the general agent of the defendant, that he would attend to the making of the indorsement of the transfer of this property on the policy, as required by the terms of the standard policy, bound the defendant either as a waiver of the conditions or as an equitable estoppel growing out of the agreement of the general agent to indorse the transfer on the policy then in the Troy Savings Bank.

It is not claimed by the learned counsel for the appellants that there was any waiver by the agent of the requirement of the policy that the consent to the transfer shall be indorsed on the policy, so that the question of waiver of that condition need not be considered here.

But it is insisted that the general agent in making this indorsement stood in the place of the company, with full power and authority to make this indorsement, and bind the defendant thereby, and that as such indorsement could not be made by the plaintiffs or either of them, but must in the nature of the case be made by the company through its officers or agents, the agreement of the general agent having the authority of the company to make such indorsement, was the agreement of the company to do an act which it and not the plaintiffs could, and must do ; it cannot be permitted to take advantage of its own neglect for the purpose of avoiding its obligations to pay this policy in case of loss. Is this contention sound and supported by the authorities ?

"Both parties in the case seem to rely upon the doctrine enunciated by the Court of Appeals in the recent case of O'Brien v. The Prescott Insurance Co. (134 N. Y. 28). But that case turned entirely upon the inability of a general agent of the defendant to waive by parol the provisions of the policy against permitting the insured premises to remain unoccupied, without the written consent of the company indorsed on the policy, when it in express terms prohibited the agent from waiving any of the conditions of the policy, except by an indorsement of such waiver on the policy in writing, and the assured, instead of insisting upon the indorsement of the waiver upon the policy, contented himself with a waiver by parol by the agent. Such attempted parol waiver was in clear and unmistakable violation of the express terms of the policy. The case at bar differs from that in this, that here the parties did not under; take to waive the provisions and requirements of the policy, but sought to perforin them literally by the' assured calling upon and obtaining the promise, of the company, by its general agent, to- do an act which was in the power of the company to perform, and the performance of which was its duty, and which could not be performed by the plaintiffs.

It is true that the defendant, on being requested to consent to. this transfer, might have refused and canceled the [policy, but this it did not do or attempt, and left the assured to assume and believe that the indorsement was made as requested.

The condition in the policy under consideration in this case, which, it is claimed by the defendant, was violated, is as follows:. “ This entire policy, unless otherwise provided by agreement indorsed hereon, or added hereto, shall be void if any change, other,than by the death of an assured, take place in the interest, title- * * * whether by legal process, or judgment, or by voluntary act of the insured or otherwise.”

It also provides that “ this policy is made and accepted, subject to the foregoing stipulations and conditions.”

It follows that the sale of the insured premises and the taking of, possession by the purchaser of the insured premises, works, by the terms of the policy itself, a forfeiture thereof, unless consented t® in writing by the defendant, with such consent indorsed on the-policy or added to it.

No consent was ever given in the manner prescribed in the policy, .and, within the rule laid down in the recent case of Baumgartel v. Providence Washington Ins. Co. (136 N. Y. 547), the insured could not rely upon the parol executory promise of the general agent of the company to perform the act, the performance of which, if omitted, woidd work a forfeiture of his policy.

That case is too clearly analogous in many of its features to this. to be distinguishable. The policy by its terms made the placing of additional insurance on the property, without the consent of the -company, indorsed thereon in writing, ground of forfeiture. It also prohibited any change of the provisions of the policy -by any agent by parol, and contained other restrictive provisions similar to 'the one, in question. The assured put on additional insurance of $1,000,, and soon thereafter meeting the general agent on the street informed him of that fact, for the purpose of having the proper indorsement made on the policy, and the agent in answer to such information said: “ All right, I will see to it.” On these facts this court affirmed the judgment of the trial court in favor of the assured on the ground that the plaintiffs had a right to rely upon sack assurance from the company by its general agent, and that the defendant was estopped from saying, in its defense against a recovery on the policy after the loss, that the plaintiffs had not performed their agreement.

But the Court of Appeals reversed the judgment, and held that as the agent had no power to grant the permission, except in the manner prescribed in the policy, his parol agreement was ineffectual, and that as the policy was not present and presented to him at the time his consent was requested, his executory promise to make the written consent in the future did not bind the company.

We see no way of distinguishing that case from the one at bar, and must regard it as controlling and conclusive in principle, on this appeal.

Examination of the other questions raised on this appeal seenté unnecessary. The judgment must be affirmed, with costs.

Putnam and Herrick, JJ., concurred.

Judgment affirmed, with costs.


author: Mayiiam, P. J.:

text:
    Wayland D. West, as Executor and Trustee, etc., of Isaac V. Place, Deceased, Respondent, v. William Place and Others, Appellants.

      Jiotice of appeal — upon whom it must be served under)' § 1300 of the Godeof Oivil Procedure — dismissal of an appeal.

    Under the provisions of section 1300 'of the Code of Oivil Procedure, all the defendants in an action whose interests are adverse to those of the appellants, and who have appeared and interposed answers hostile to them, must he held to he parties adverse to the appellants within the meaning of such section, and a notice of appeal from the judgment entered in such action should he served upon all such defendants. The failure to do so is a failure to fully comply with the provisions of the statute under which, only, appeals can he taken. •

      An appeal to tlie General Term of the Supreme Court must he dismissed as • irregular and invalid where the notice of appeal was not served upon the parties to the action, who are adverse to the appellants, and whose interests are opposed to theirs on the appeal, when a review as to such adverse parties is necessary to a complete and proper determination of the appeal, and when the time has expired within which to appeal.
    MotioN by the plaintiff, Way land D. West, as executor and trustee, etc., of Isaac Y. Place, deceased, to dismiss an appeal from a judgment of tlie Supreme Court, entered in tlie office of tlie clerk of tlie county of Fulton on the 3d day of June, 1893, giving judicial construction to the will of said Isaac Y.' Place, deceased.

      William Green, for the respondent, in support of the motion.

      Anibal <& West, for the appellants, opposed.
   Mayiiam, P. J.:

An action was prosecuted in this court by the executor and trustee named in the will of Isaac Y. Place, deceased, for a judicial construction of that instrument.

All of the legatees and devisees named in the will of the testator were made parties to the action, and none of them took issue by tlieir answer with tlie allegation of the complaint except five, who answered, denying the validity of the will, and demanded that the same be adjudged void, while all the other defendants who appeared by their answer admitted the validity of the will. The will, by the decree of the court, was declared valid, and all of its provisions sustained and construed in accordance with the provisions of the decree, upholding all the devises and bequests therein. From that decree the five contestants appeal, naming as respondents in their notice of appeal only the executor, who was plaintiff in the action, and serving tlie notice of appeal only on him and the clerk of the county with whom the records of the decree are filed and entered.

This appeal seeks to reverse the decree establishing the validity of the will, and to have it adjudged invalid and void, without serving a notice of appeal upon those defendants who are beneficiaries under the will, and who, by their separate answers, had asked that the will be sustained. The will and motion papers show that a reversal of the decree would deprive some of the defendants who are notmade parties to this appeal of any shai’e in the estate of the testator.

It is, therefore, insisted that tliey are necessary parties to the appeal, and as they gave proper written notice of the entry of the judgment or decree upon the appellants the notice of appeal should have been- served upon them, and that without making them respondents in the appeal, no determination of the question raised by ■ it can be had, and that, the time limited for the service of a notice of appeal on them having expired, the ajipeal is irregular and should be dismissed.

Section 1300 of the Code of Civil Procedure prescribes the mode of bringing appeals, and provides that it must be done by serving a notice upon the attorney of the adverse party and the clerk.

The defendants, whose interests are adverse to the appellants, and who have appeared and answered by answers hostile to them, must, we think, be held to be adverse parties to the appellants, within the meaning of section 1300 of the Code.

The notice of appeal should, therefore, have been served upon the defendants who appeared and interposed answers hostile to those of the appellants, and the failure to do that was a failure to fully comply with the statute under which, only, appeals can be taken. Section 1351 of the Code of Civil Procedure limits-the time within which an appeal can be taken to thirty days after the service of a copy of the judgment or order upon the appellant’s attorney, and written notice of the entry thereof, and section 784 of the same Code expressly prohibits the court or judge from enlarging the time for taking an appeal.

The appeal in the case not having been served upon the defendants, who were as to the appellants adverse parties, and whose interests are adverse to those of the appellants on the appeal, and a review as to such parties being necessary to a complete and proper determination of the appeal, and the time having expired for appealing, as to such adverse parties, with no power in this court to relieve the appellants from the consequences of their delay, this appeal must be regarded as irregular-and invalid, and must, therefore, be dismissed.

PutNah and HekRIOK, JJ., concurred.

Appeal dismissed, with costs to respondent, together with costs and disbursements on this motion.


author: BbowN, P. J.:

text:
    William N. Dykman, as Receiver of the Commercial Bank, Respondent, v. William J. Northbridge, Appellant, Impleaded with Another.

      A bank, the holder for value of d note made by its cashier — books of the bank, when inadmissible in evidence.

    A bank cannot become tbc bolder for value of a note made by its cashier by crediting the amount thereof to the cashier, unless he receives the money as an individual and not as cashier, as otherwise the bank parts with nothing as a consideration for the note.
    Where the-entries in the books of a bank were not made by the persons having knowledge of the transactions which they purport to record, and the inference drawn from them is all based upon the assumption that a check found upon , the desk of the paying teller had been paid by the bank, a trial court cannot assume that fact in the absence of competent proof thereof, and the books of the bank are inadmissible in evidence as proof of such payment.
    Appeal by the defendant, William J. Northbridge, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 27th day of February, 1894, upon .the decision of the court rendered after a trial at the Kings County Special Term.
    Thornton, Ea/rl & Keindal, for the appellant.

      Ja/nies C. Bergen, for the respondent.
   BbowN, P. J.:

This action is upon a promissory note, dated May 10, 1893, made by John J. Tail to the order of appellant, payable three months after date at tlie Commercial Bank. Tail was the cashier of the bank, and the court found that the appellant indorsed the note at his request and for his accommodation.

Under the pleadings it was essential to the plaintiff’s recovery that he should prove that the bank was a holder for value, and this he attempted to do by the production of the bank’s books and reading in evidence various entries in reference to the note. But no witness was produced to give testimony as to the transaction by which the bank acquired the note, although there is no reason apparent why the evidence of the cashier or paying teller, who would appear to have knowledge of the matter, was not taken. By appropriate entries read from the discount book it appeared that the note had been discounted by the bank and its proceeds credited to the cashier’s account. But obviously that was not sufficient to give to the bank the character of a holder for value. The cashier’s relation to the bank was such that money credited to an account kept in the name of his official title must be deemed to be in the possession of the bank. The plaintiff then produced a cashier’s check for the amount of the proceeds of the note, signed by Vail, and payable to himself individually, also the check book containing the stub from which the check was torn, and read in evidence, against the defendant’s objection and exception, from a book of paid checks an entry of the payment of the check, and from the ledger an entry charging such check to the cashier’s account. The clerk who made these entries testified that he had no knowledge of the transaction, and that he made the entries in the books from the checks taken from the paying teller’s desk. No other testimony was offered, and upon these facts the court found the check was paid.

The bank could not become a holder for value of the note by crediting its amount to the cashier. Unless he received the money as an individual, and not as cashier, the bank parted with nothing as a consideration for the note. (Central Nat. Bank v. Valentine, 18 Hun, 417.)

The entries in the bank’s books were not admissible as proof of payment, and the objection thereto was well taken. But the entries did not prove the fact of payment.

They were not made by persons having knowledge of the transactions which they purported to record, and the inference drawn from them is all based upon the assumption that a check found upon the desk of the paying teller has been paid by the bank.

The court could not assume such a fact. If it had any relevancy to the case it was a matter to be established by competent proof.

The evidence is wholly insufficient to support the judgment, and it must be reversed and a new trial granted, with costs to abide the event.

DyigviaN and Culleh, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the event.


author: BrowN, P. J.:

text:
    James H. McKay, Respondent, v. George H. McAdam, as Administrator, etc., of Mary Ann Lawrence, Deceased, Appellant.

      Gift by will — when vested — postponement of the time of payment in the discretion of the executor — when payment thereof will be compelled.

    ■Where a gift to a person by will is immediate and tlie source of payment is designated, it is vested. The fact that the time of the payment thereof is postponed for the convenience of the estate, and that the executor of the estate is made the sole judge as to when it will he convenient for him to pay the same, does not empower such executor to arbitrarily postpone the payment thereof; if there are ample funds in his hands to pay such legacy, in the absence of some good reason why he should not pay the same, the payment thereof will be compelled.
    Appeal by tlie defendant, George H. McAdam, as administrator, etc., of Mary Ann Lawrence, deceased, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 13th day of February,' 1894, upon the decision of the court rendered after a trial at the Kings County Special Term overruling the defendant’s demurrer to the complaint, and also from the order and decision of the court entered in said clerk’s office on the 6th day of February, 1894, directing such judgment.

      George A. Stearns, for the appellant.

      Thos. Fenton Taylor, for the respondent.
   BrowN, P. J.:

The demurrer was properly overruled.

The complaint alleged the bequest of a legacy to the plaintiff’s assignor, by the defendant’s testatrix, and its non-payment after demand, and sets out in full the wilL containing the bequest.

By it it appeai-s that the testatrix gave all her property to Terrence Kenney, who was appointed executor, in trust to pay her debts, and out of the rents of her real estate to pay : (i) A mortgage on the property of $500. (2) Fifty dollars a year to her husband during his life. (3) To her grandniece the legacy in question. (4) Six hundred dollars to her brother Hugh.

The will then provides as follows: “ Finally my wild is that the fee of my said house, and the rest, residue and remainder of my property, shall vest in my executor, Terrence Kenney — the net income from the same to be applied by him for the education and maintenance of his daughter, my grandniece, Mary Ann Kenney, as long as she shall live, and, in case of her death, then to vest absolutely in the said Terrence Kenney. My intention being that said Terrence Kenney shall be the sole and arbitrary judge of when it may be convenient for him to pay the said sums to my husband, James P. Lawrence, to my grandniece, Annie McGinley, and to my brother, Hugh McGinley.”

The complaint further alleges the death of Terrence Kenney on March 24,1892, and the appointment of defendant as administrator, with the will annexed, and that said Kenney, as executor, and said McAdam, as his successor, * * * have ample funds, and that said trust is chargeable with funds more than sufficient to pay the legacies and the debts, as provided in said will to be paid.”

The gift to the plaintiff’s assignor is immediate, and the source of payment designated. It is, therefore, vested. (Loder v. Hatfield, 71 N. Y. 100.)

The postponement of the time of payment was for the convenience of the estate, and the provision making the executor the sole judge of when it would be convenient for him to pay the legacies did not empower him to postpone payment, arbitrarily, for an indefinite period. (2 Perry on Trusts, § 771.)

The allegation that defendant has ample funds to pay all the legacies and debts must be assumed to be true for the purpose of this appeal, and, being true, it requires from defendant an answer why he does not pay.

There is no ground for the claim that the will unlawfully suspends the power of alienation, or that there is direction for an illegal accumulation of rents. The fee of the real estate vested in Kenney, subject to the payment of the legacies, and lie could always sell the land subject to that charge and convey a good title. The power of alienation is not, therefore, suspended at all.

There is no direction to accumulate rents. The legacies are payable from the income as received, and there is nothing to prevent their payment in installment if the parties choose to deal in that way.

It may be that upon the trial of this action obstacles will exist to a recovery by the plaintiff that do not now arise, but in view of the allegation that Kenney, before his death had, and defendant now has, ample funds to pay the debts and legacies, the demurrer was properly overruled

If it should appear that the defendant liad received fpnds from Kenney’s estate belonging to the trust, and properly applicable to pay the legacy in suit, some of the objections which he now urges would be overcome.

The judgment must be affirmed, with costs, with leave to defendant to answer in twenty days on payment of costs.

DyKMAN and Cu.lleN, JJ., concurred.

Judgment affirmed, with costs, with leave to defendant to answer in twenty days on payment of costs.