text:
    Francis A. H. Bergmann and Another, Respondents, v. Hamilton H. Salmon, Individually, and Hamilton H. Salmon and Another, as Executors, etc., of Hamilton H. Salmon, Deceased, Appellants, Impleaded with Another.

      Promissory note — delivered by mistake and fraudulently accepted — a claim in a pleading f 'w unauthorized, does not pi'eclude proper, relief.

    Where a note and collateral security thereto were given by the maker under a mistake of the maker as to the personality of the party receiving them, and were accepted by such person fraudulently, with knowledge of the maker’s mistake and of the rights of a third person thereto, such note is void in its inception.
    An erroneous claim by a pleader, as to the relief to which he deems himself entitled, does not preclude the court from giving the party the remedy which the facts stated demand.
    Appeal by tbe defendants, Hamilton H. Salmon, individually, and Hamilton H. Salmon and another, as executors, etc., of Hamilton H. Salmon, deceased, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the lltli day of May, 1894, upon the decision of the court rendered after a trial at the New York Special Term, directing that the defendant Hamilton H. Salmon, individually, surrender to the plaintiffs a certain canceled promissory note, and that the plaintiffs pay to the defendants Hamilton H. Salmon and another, as executors, etc., of Hamilton El. Salmon, deceased, the sum of $1,153, and that the defendants Hamilton H. Salmon and another, as executors of Hamilton IE. Salmon, deceased, deliver to the plaintiffs a certain policy of life insurance and certain other collateral held'by them.

      JR. W. & Johnston, for the appellants.

      Lloyd McKay Garrison, for the respondents.
   Barrett, J.:

The plaintiffs here are not barred, by the framework of their complaint, from obtaining such relief as they are entitled to upon the facts found.

It is true that they demand judgment, declaring the transactions set forth in the complaint to be usurious. But they also demand other and further relief, and especially that they be decreed to be entitled to all money due or to become due on account of a certain policy of life insurance issued by the defendant company; and that said defendant company be directed to recognize such ownership, and to pay over to them all moneys now due or to become due on such policy.

The appeal comes up on exceptions to the conclusions of law. The case does not contain the evidence, and, consequently, the sole question is whether the conclusions of law are supported by the findings of fact.

The complaint sets out a long series of transactions originating with a loan of $1,000 in the month of August, 1888, evidenced by a promissory note, and secured by an assignment of the policy in question. This note was made by the plaintiffs payable to Salmon six months after date, with interest. It was renewed in February, 1889 ; again in August, 1889, and again in February, 1890.

Upon each renewal the policy was again assigned to Salmon as security. The plaintiffs never saw Salmon, and the business was done with a broker named Steers. When the loan was originally made, they signed a paper directed to Salmon, instructing him to pay the $1,000 to Steers. Salmon did so, but Steers only accounted to the plaintiffs for $£)50. Each time that the note was renewed the plaintiffs paid Steers ninety dollars. This is alleged to have been for interest, additional commissions, brokerage and eutpenses, but there is neither allegation nor finding that Salmon agreed to or did receive, .at these respective times, anything more than lawful interest. When the renewed note of February, 1890, matured, Salmon was dead, but the plaintiffs were unaware of that fact. Thereupon, Salmon’s son, the present defendant, Hamilton II. Salmon (who bore the same Christian name as his father), evidently concealed from the plaintiffs the fact of his father’s death, and suffered them unconsciously to treat him as their creditor.. Ignoring his father’s estate, lie took the transaction to himself personally, and procured from the plaintiffs what purported to be another renewal note payable to himself, in the original name of Hamilton H. Salmon, and likewise secured by an assignment to himself in this name of the .policy in question. This note differed from the renewals taken by Salmon, Sr., in that it was made out for $1,288.43, while all the previous-renewal notes were for the sum of $1,000.

Now, it is quite clear, whatever else may be said, as to this last transaction with Salmon, Jr., it was not tainted with usury. There was in fact no legal relation between him and the plaintiffs growing out of the original transactions, or out of the transaction as it existed at the time of Salmon, Sr.’s, death. That transaction was represented by the executors of Salmon, Sr. In their answer these executors disclaim this action of Salmon, Jr., for they deny that they “ hold the alleged note of $1,288.43, or said tontine policy, or divers assignments, or any assignment thereof, as security for said note.”

Whatever, therefore, might have been the effect of this last transaction with Salmon, Jr., had it been made upon behalf of his father’s estate, it is quite evident that, as a transaction with him personally, it was without consideration. Nay, more, it was void in its inception, not for usury, but for fraud. The note and assignment were given to Salmon, Jr., by the plaintiffs plainly through a misiake of fact as to his personality. And they were accepted by him fraudulently ; that is, with knowledge of the plaintiffs’ mistake, and certainly with full knowledge of the rights of his father’s estate. Upon the trial the invalidity of this last not®, and of the assignment of the policy given to secure it, was substantially conceded by the defendants. This is apparent from the following finding, made at their request by the learned justice at Special Term:

Thirty-fifth. That the said last-mentioned note and the said assignments of the said policies of insurance last above* mentioned were and each of them was produced by the defendants on the trial of this action ca/nceled, a/nd the same now a/re canceled, and of no force and effectP

There is, therefore, no substance in Salmon, Jr.’s, appeal. What matters it to him whether the note and collateral were declared to be invalid upon one ground rather than upon another ? The pith of the judgment is that they be canceled, and he says he has already canceled them. But that act of his was done under stress of the trial. It had not been done when the action was commenced. In his answer he denies that he holds these securities individually. If lie had then admitted that fact, and had offered to cancel them, or had stated that they were already canceled, the trial would have been unnecessary as to him. As it is, he cannot complain of the form of the judgment, nor can he prevent a decree-for the delivery of the canceled instruments to the plaintiff. If they a¿’e genuinely canceled it is immaterial to him what is done with them.

As to the judgment against the executors of the estate of Salmon,, Sr., we see no reason why, with a modification to which reference-will presently be made, it should not be affirmed. It must be conceded that the transaction between Salmon, Sr., and the plaintiffs-was not usurious. There is no direct allegation in the complaint of a usurious agreement. Nor is any such agreement found as matter of fact. The relief granted as against the executors proceeded,, not upon the theory that the securities were vitiated by usury, but upon a principle applicable even though they were entirely valid, namely, that upon paying these executors all that the estate of "Salmon, Sr., was entitled to, the plaintiffs should have a return of their securities. Eor it seems that while Salmon, Sr., lived the origmal notes were not returned when the renewals were given. So that he had in his possession several instruments representing the same transaction. This relief was appropriate to the case made by the complaint and by the findings of fact. The plaintiffs were not estopped by the prayer for relief, even if it had been limited to a prayer that the instruments be declared to be usurious. Still less when they asked for other and further relief, and especially that they be decreed to be entitled to the moneys payable upon the policy by the insurance company. They charged, it is true, that the notes and renewals were made “ fraudulently, corruptly and usuriously,” but they stated no fact inconsistent with Salmon, Sr.’s, innocence. Nor was any such fact found by the Special Term. Not having alleged a usurious agreement, these adverbs were mere characterization. Omitting them as such, the plaintiffs were entitled to the relief granted, though not to the precise relief claimed. It is well settled that an erroneous claim by the pleader as to the relief to which he deems himself entitled does not preclude the court from giving the party the relief to which he is entitled hy the facts statedP (Chatfield v. Simonson, 92 N. Y. 218.)

Upon these facts we think it clear that the executors were entitled to the full $1,000 loaned by Salmon, Sr. It was error to allow them but $950. If they were entitled to but $950, it was necessarily because the transaction was usurious. But, as we have seen, there was nothing in the complaint or findings of fact to justify such a' conclusion. And it was illogical to give relief incident to an innocent transaction upon a theory justified only by .its guilty character. The interest, however, was properly allowed, not from the date of the original loan, but from the date when interest was paid upon the last renewal note of $1,000. The learned justice has found as a fact:

“ XXI. That full interest on note of August 13, 1888, and on each renewal thereof, was paid by or on behalf of plaintiffs to and including August 7, 1890.”

The judgment as against the executors should accordingly be modified by requiring the plaintiffs to pay them, as a condition of the relief granted, the full sum of $1,000, with interest thereon from August 7, 1890, to the date of payment. It should also be modified by striking out the provision requiring these executors to furnish to the plaintiffs a certificate of the issuance to them of letters testamentary, and of their qualifications and continuance as such executors.

The judgment as against Salmon, individually, should also be modified by simply adjudging the instruments in his possession to be void, and requiring him to deliver them up to the plaintiffs, cam celed as they were when produced upon the trial.

No costs of this appeal to either party.

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

Judgment modified as directed and affirmed as modified, without costs.


source: Caselaw Access Project

author: Parker, J.:

license: Public Domain

text:
    Emilia Govin, Plaintiff, v. Nathan Metz and Others, Defendants.

      Error in the description of real estate devised — the misdescription maybe struck out.

    Where it is shown that an error exists in the description of real estate, purporting to he devised by will, the court may in an appropriate action strike out the misdescription, and read the will as if it had never been inserted, provided that independently of the false description such devise is effectual.
    The third clause of the codicil to a will was as follows .•■
    “ Third. I bequeath to Felix, Emilia and Guillermina Govin, whom I love as children: To the first, the lot and house constructed on the same marked with the number 841 West 33rd street; to the second, the house and lot marked with the number 304 Lexington avenue, and to the third, the house and lot with the number 304 West 39th street, said three houses being situated in this city.”
    The testator never owned 304 Lexington avenue, and the only premises on Lexington avenue he owned at the time of making such codicil, and at the time of his death, was No. 738.

      Held, that such clause should be read as if the misdescription, viz., the figures 304, was not inserted therein, in which case the description would be sufficient to vest in the devisee the property No. 738 Lexington avenue, the only house which the testator owned on such avenue.
    Motion by the defendants, Nathan Metz and others, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance, after a verdict in favor of the plaintiff had been rendered by direction of the court on the 20th day of April, 1894, on a trial at the New York Circuit.

      Abram KUng, for the plaintiff.

      James S. Stearns and Cephas Brainard, for the defendants.
   Parker, J.:

The third clause of the codicil to the will of Eelix Govin y Pinto' is as follows:

Third. I bequeath to Felix, Emilia and Guillermina Govin, whom I love as children: To the first, the lot and house constructed on the same marked with the number 241 "West 23rdi street; to the-second, the house and lot marked with the number 204 Lexington avenue, and to the third, the house and lot with the number 204 "West 39th street, said three houses being situated in this city.”

Felix and Guillermina obtained immediate possession of the houses and lots severally devised to them, but in the devise to Emilia, this plaintiff, the testator described the house as “ number 204 Lexington avenue,” whereas the only house that he owned on Lexington avenue was 138. That it was an error on his part is beyond controversy. He never owned 204 Lexington avenue, nor ■did he at the time of making the codicil own any house and lot on that avenue other than 138. When he located the house and lot intended to be devised as on Lexington avenue he necessarily had in mind the only house and lot on it belonging to him. How he ■came to make the mistake is suggested by the fact that the devise to ■Guillermina was of lot 204 West Thirty-ninth street. This was a ■correct description, and the figures 204 being in mind as a correct ■description of a lot to be devised, they were inadvertently given as ■the number of the house on Lexington avenue as well as that on West Thirty-ninth street.

Heading the devise in the light of the surrounding circumstances, we have a demonstration that an error has crept into the description, and what that error is. In such a case we regard it as fairly ■settled that if, independently of the false description, the devise be ■effectual, the court may, in an appropriate action, strike out the misdescription and read the will as if it had never been inserted. Striking out the figures “ 204,”' and the devise would be of a “ house ■•and lot marked with the number — Lexington avenue.” A devise which would unquestionably vest in the devisee the only house and lot which the testator owned on Lexington avenue, for there could be no mistake as to the identity of the lot.

In Patch v. White (117 U. S. 210) the testator devised to his brother “lot number 6 in square 403.” There was no such square, but there was a square “406,” on which was situated lot No. 3 ■owned by the testator. And the court determined that he had mistakenly substituted “ six ” for “ three,” and “ three ” for “ six,” and read the will as if those figures had not been inserted.

The decision in that case fully supports the verdict directed in this action. It was the outcome of a vigorous debate in the court. The opposing positions were strongly presented by prevailing and dissenting opinions. The arguments presented by the controlling ■opinion seem to us the better reason, and they are so fully given as •.to meet the suggestions of the learned counsel for the respondents and make it a work of supererogation for this court to further review the authorities bearing upon that subject.

The exceptions should be overruled and judgment ordered for the plaintiff, with costs.

Van Brunt, P. J., and Barrett, J., concurred.

Exceptions overruled and judgment ordered for plaintiff, with costs.


author: Barrett, J.:

text:
    Harriet Eads, Respondent, v. Henry G. Wynne, Appellant.

      Execution against the person — escape — the attoimey is without power to allow a discharge— defense to the sheriff for an escape — plaintiff not responsible for the form of return to an execution — second execution may be issued — clerical error therein amended.

    It is an escape if a sheriff allows a prisoner, taken by him by virtue of an execution against his person, to be taken from Eis custody upon the warrant of a police justice to answer an alleged crime.
    The plaintiff’s attorney, as such, has no power to allow the discharge of a person arrested by a sheriff under an execution against his person, without the actual payment of the money due thereon.
    The sheriff can avail himself of nothing as matter of defense to an escape, but an act of God or the common enemy.
    If a judgment creditor has not consented to the surrender by the sheriff of her judgment debtor, against whose person an execution was in the hands of such sheriff, the surrender of the person of such judgment debtor by the sheriff without authority is an escape for which the judgment creditor is not responsible either in fact or law.
    If an escape is voluntary the sheriff is responsible for it, but the debt is not thereby discharged as against the judgment debtor, and the judgment creditor has a right to issue a new execution and to retake the defendant.

      A person taken into custody by the sheriff under an execution against his person is not entitled to be discharged under section 111 of the Code of Civil Procedure, if he has not been in actual custody under the execution for the statutory six months, which period does not run after his escape; the fact that such person was in custody during all the statutory period in a criminal jail does not affect his right to be discharged.
    The plaintiff in an action'in which an execution against the person of the defendant was issued is not responsible for the form of return which is made thereto, nor is she bound to await such return before issuing a second execution, which may be issued at any time after the unauthorized surrender of the defendant under the first execution.

      Tlie fact that a second execution issued against the person of a debtor does not specify the county to which an execution against his property had been issued is a clerical error, which can be cured by amendment when the name of the county to which the execution against the property was issued was specified in the first execution issued against the person, and the recital in the second execution against the person covers “ the county where the said judgment debtor resides.”
    Appeal by tbe defendant, Henry G. Wynne, from an order of tbe Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of May, 1894, denying the defendant’s motion to vacate a second execution issued against his person and his arrest thereunder, and also for his discharge from arrest under section 111 of the Code of Civil Procedure.

      O. II. Smith, for the appellant.

      W. S. Stillings, for the respondent,
   Barrett, J.:

On the 2d day of October, 1893, Wynne was arrested under an execution against his person, issued in this action upon the nineteenth of the preceding month. He was so arrested in front of the Jefferson Market Police Court by one Upham, an assistant deputy sheriff, acting under special authority from Sheriff Gorman.

Immediately after the arrest, and before Upham had time to remove his prisoner, the plaintiff’s attorney in the execution, one Dawson, came out of the Jefferson Market Police Court with a police officer, and directed Upham to allow this officer to take Wynne on a criminal warrant. Upham did so, and Wynne was committed upon the criminal charge in default of bail. He remained in the Jefferson Market Jail until the first of the following January, when he was removed to the Tombs, where he remained until the second of April of this year. Upon the latter date he procured bail upon the criminal charge and was discharged from custody thereon. Thereupon, a second execution against his person was issued — this time to the present sheriff, Sexton — and he was lodged thereunder in Ludlow Street Jail.

He moved at Special Term to vacate the second execution and his second arrest; also for his discharge under section 111 of the Code of Civil Procedure, upon the ground that six months had elapsed since his original arrest. The motion was denied and Wynne appealed.

We have no doubt upon the facts presented by the affidavits that there was an actual arrest under the first execution. Wynne was in Upham’s custody thereunder when Dawson made his appearance with the police officer. It was an escape for IJpham to permit Wynne to be taken from his custody upon the warrant of a police justice to answer an alleged crime. (Brown v. Tracy, 9 How. Pr. 93; Crocker on Sheriffs [3d ed.], § 602; Barbour’s Crim. Law [2d ed.], 536.) The sheriff can avail himself of nothing, as matter of defense to an escape, but an act of God or the common enemy. (Fairchild v. Case, 24 Wend. 381.) It is well settled that the plaintiff’s attorney, as such, has no power to allow a discharge of the defendant without the actual payment of the money. (Kellogg v. Gilbert, 10 Johns. 220; Simonton v. Barrell, 21 Wend. 362; Lovell v. Orser, 1 Bosw. 349; Jackson v. Bartlett, 8 Johns. 366; Vidrard v. Fradneburg, 53 How. Pr. 340.)

The attornéy could not destroy the plaintiff’s rights by such a direction as was here given. She never consented to the surrender of Wynne to the police officer. There is no evidence that she was present upon the occasion. The complaint in the criminal proceeding seems to have been for stealing her property, but she was not the complainant. The complainant was Dawson. It was he who made the oath upon which the warrant was issued. And the proceeding was entitled, as appears from the indorsement upon the warrant, “The People, &c., on the complaint of Andrew H. H. Dawson vs. Henry G. Wynne.”

As the plaintiff never consented to the surrender of Wynne, and as Dawson had no authority to so consent, it follows that such surrender was an escape for which the plaintiff was not responsible, either in fact or in law. It follows, too, that, as she did not consent to the surrender, she may issue a new process and retake the defendant. (Gode Civ. Proe. § 1492; Wesson v. Chamberlain, 3 Comst. 331.)

As was said in this latter case: “ As regards the sheriff, the escape was voluntary and he was responsible for it; but the debt was not thereby discharged as against the judgment debtors; and the plaintiffs had a right to issue a new execution and to retake the defendants ; ” citing 1 Salk. 212.

The defendant was not entitled to be discharged under section 111 of the Code of Civil Procedure, for the reason that after the surrender he was not in actual custody under the first execution. Consequently he was not in actual custody for the statutory six months. This period certainly did not run after the escape. Nor is this conclusion affected by the fact that during all the statutory period Wynne was in a criminal jail. These jails were not in the custody of the sheriff. In the city of New York the sheriff has “ custody of the jail used for the confinement of persons committed on civil process only, and of the prisoners in the same.” (Consol. Act, § 1715.) At all events, Wynne was not in the criminal jail under the civil process.

The defendant was not prejudiced by the error in the return made upon the first execution. The substantial matter is that he was not entitled to a discharge thereunder pursuant to section 111 of the Code of Civil Procedure.

The plaintiff was not responsible for the form of return which was made, nor was she bound to await such return before issuing her second execution. The latter process was properly issued at any time after the unauthorized surrender under the first execution.

We think, however, that the point made against the second execution— that it did not specify the county to which execution against the property had been issued — was well taken. The name of the county was left in blank. 'But this was undoubtedly a clerical error, which can be cured by amendment. The name of the county was specified in the first execution, and the recital in the second execution covers “the county where the said judgment debtor resides.” The omission, therefore, was a mere irregularity which can be supplied by amendment. (Walker v. Isaacs, 36 Hun, 233; People ex rel. Utley v. Seaton, 25 id. 305.)

The order appealed from should, therefore, be affirmed except with regard to the matter last referred to. As to that, we cannot direct the amendment, as the plaintiff, although the irregularity was specified in the order' to show cause, did not file an affidavit below. The order should, therefore, be modified by giving the • plaintiff leave to move for an amendment of the execution by inserting therein the name of the proper county if, in fact, an execution has been issued to that county and returned unsatisfied ; and thereupon denying the motion to vacate such second execution, without costs. And there should be no costs of this appeal.

Yan Brunt, P. J., concurred; Follett, J., concurred in the result.

Order modified as directed in opinion and affirmed as modified, without costs.


author: Van Brunt, P. J.:

text:
    Frank S. Gray, Appellant, v. Augustus D. Shepard and Another, as Executors, etc., of Elliot F. Shepard, Deceased, Respondents.

      Master and servant — breach of contract of service — a refusal of the servant to deliver paper's relating to the business justifies his discharge — am, exception to a judge’s charge is not a request to go to the jury — oral testimony as to the interpretation to be placed upon “incompatibility.”

    All the papers connected with the business, in reference to which an employee is engaged, belong to his employer, who has a right to demand the same, except so far as their retention may be necessary for the justification of acts of the employee done pursuant to directions contained therein, and the retention of a letter on the latter’s part, if it shows a preconceived design to use the same for the purpose of blackmail, is a breach of duty on the part of the employee towards his employer which can be set up at any time in justification of his discharge.
    A simple exception to the charge of the judge, on the trial of an action, was taken, without any suggestion that there existed a phase of the case which might make it proper to submit a question presented thereby to the jury.

      Held, that the person making such exception was not in a position to claim upon appeal that the charge as delivered and excepted to embraced a refusal to submit such question to the jury. That if such point wTas to be insisted upon, it was the duty of such party to call the attention of the court to that feature of the case, and then, if the court refused to make a proper charge in respect thereto, the question could be reviewed upon appeal.

      Semble, that parol testimony as to the interpretation of the word “ incompatibility,” placed upon the same by the parties to an agreement wherein such word occurred, is admissible in evidence upon the trial of an action, as the meaning of such word is not of so definite a character as to preclude evidence of a discussion in regard to the same between the parties to a contract prior to its insertion therein.

      Appeal by the plaintiff, Frank S. Gray, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 22d day of December, 1892, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order entered in said clerk’s office on the 28th day of December, 1892, denying the plaintiff’s motion for a new trial.

      A. J. Nittmhoefer, for the appellant. ■

      Noah Navis, for the respondents.
   Van Brunt, P. J.:

This action was brought to recover damages for the plaintiff’s wrongful discharge from employment by the defendants’ testator. On the 18th of April, 1888, the plaintiff and Elliot F. Shepard, who died since the trial of this action, entered into a written agreement by which the plaintiff agreed to remove with his family from Chicago to New York; to enter Mr. Shepard’s service in connection with the publication of the 3fail am,d Express newspajaer; to devote his whole time, Sundays excepted, to the paper, and to fill such places and have such titles from time to time as Mr. Shepard might wish, whether managing editor, publisher of the weekly, publisher of the daily, general manager of one or both, or assistant in any of these departments, or all of them, etc. The employment was for five years from May, 1888, and the compensation was to be $6,000 a year for the first two years, and during the last three years in addition to receiving the same salary he was to be credited each year with the sum of $5,000 as installments on the purchase price of an undivided one-tenth interest in the paper.

The said contract contained the following clause:

“ For any dishonesty, incompetency, incompatibility or breach of this agreement of or by Mr. Gray, Mr. Shepard shall be at liberty to annul it, and thereupon it shall cease and determine and all obligation thereunder on the part of Mr. Shepard be canceled forever.”

The plaintiff moved to New York on the 7th of May, 1888, entered upon the discharge of his duties and continued in Mr. Shepard’s service until the 4th of January, 1890, when he was discharged, and the question involved upon the trial of this cause was whether such discharge was justifiable or not.

Evidence tending to show various acts of insubordination was given upon the part of the defendant, and the case having been submitted to the jury they found a verdict in favor of the defendant ; and from the judgment entered upon such verdict and from an order denying a motion for a new trial this appeal is taken.

Yarious grounds of error have been brought to our attention upon this appeal, among which were the charge of the learned judge in respect to the conduct of the plaintiff as to a certain letter written by Mr. Shepard to the plaintiff in respect to advertising to be obtained from the police department. It would appear that Mr. Shepard was desirous of obtaining certain advertising from the department, and wrote a letter inclosing a check of $5,000 to the plaintiff Gray. Gray did not use the check for the purpose for which it had been sent to him, but deposited the same to his own' account in bank. Shepard and Gray had a conversation in respect thereto, in which Mr. Shepard asked Mr. Gray : • “ Did you get that check and letter ? ” Mr. Gray said “ yes.” Shepard said: “ I do not know whether you can get it done or not, but we have got to have prestige and get political advertising.” He said : “ Our relations are so confidential that you burn that letter up. You ought not to tear a letter up like that and thi’ow it around, but burn it up.” Gray further testified: lie asked me what I had done with the check, and I said I had deposited it with the National Park Bank. He was very much incensed by that; I told him the money was waiting for him, and I would give him a check any time he desired.” On the 27th of September, 1888, the plaintiff gave to Mr. Shepard a check for the $5,000 which had been received by him. Subsequently, after the return of the money, Shepard had a conversation with the plaintiff in respect to the letter, during which a request for the delivery of the letter by Shepard to Gray was made, to which Gray replied that he had torn up the letter and thrown it away in the scrap basket, whereas the fact was that he did not destroy the letter, but kept the same, and subsequently attempted to use it as a club against Shepard. In respect to this letter, the learned judge, having called the attention of the jury to the discrepancies in the statements of the conversations of the parties in respect thereto, charged as follows: They differ as to what took place, and differ widely as to whether or not any claim was made for the restoration of this paper prior to the discharge, which occurred on January 4th, 1890. According to Mr. Gray’s testimony, the paper was given to ■him by the defendant as his manager. Whatever its contents, or whatever its purpose, it was given in the course of the employment, and the master would have the right afterwards to demand that, or any other paper which he had intrusted to his employee, and he would have noUght to refuse it. That which the master has a right to demand, if it shall be refused by the employee, is necessarily a breach of the agreement existing between them.” To this portion of the charge an exception was taken; and it is claimed that this was error upon the ground that the recipient of a letter is the absolute owner thereof and may keep, destroy or dispose of it in any way he pleases, excepting only that he has no right to publish it. In respect to the ground upon which the learned judge placed his charge, it is urged that the rule applies in the case of principal and agent and master and servant when the letter has reference to the subject-matter of the agency as well as in any other case. It is also urged that when a principal requires that his agent do a certain thing the letter may be the only evidence of his authority. If he is requested to do an improper act it would be his only protection against a charge by the principal that the wrongdoing was not at his request. These propositions would be undoubtedly true if they were borne out by the facts which were brought out upon the trial. If the plaintiff in this action had done anything upon the strength of this letter, then, within the principles laid down in the case of Evans v. Van Hall (Clarke’s Oh. 22), he might have insisted upon the retention of the same as the evidence of his authority so to act on behalf of his employer. Rut in the case at bar the plaintiff had done nothing except to deposit the check which had been inclosed with the letter to his own account, and after the return ■ of that money he refused to return the letter, alleging that it had been destroyed, when he well knew that it had not; and from his subsequent acts he evidently intended to retain the same in order that lie' might coerce Mr. Shepard in respect to his future action. Under this state of facts it is difficult to see how a servant can retain anything in which his master has ail interest without a breach of the duties which existed. The plaintiff in this action, as has been already stated, had no reason to retain this letter as a justification for anything that he had done, because he had done nothing. The whole matter had been closed by a return of the money, and he had no further interest in the letter except such as might be an unlawful one; and' all papers connected with the business in reference to which he was employed belonged to his employer, who had a right to demand the same except so far as their retention might be necessary for his justification. The retention of this letter upon the part of the plaintiff showed a preconceived design to use the same for the -purpose of blackmail; and under these circumstances its mere retention for such purpose, which is proved beyond all question, was a breach of his duty towards his employer which could be set up at any time in justification of his discharge. In this connection it is urged that the charge carried with it a refusal to submit to the jury the question whether the offense, if there was any, was condoned by the defendant. Even if there were any evidence of con-donation, which it is somewhat difficult to discover, there was no such request made to the court. Its attention was not called to the question of condonation. A simple, plain exception to the charge was taken without any suggestion that there was any phase of the case which might make it proper to submit to the jury the question as to whether or not the offense had been condoned. Under such a condition of the record the plaintiff is not in a position to claim that the charge as delivered and accepted to .embraced a refusal to submit the question of condonation. If any such point was to be insisted upon, it was the duty of the counsel to call the attention of the court to that feature of the case, and then, if the court refused to make a proper charge in respect thereto, it might bring up a question for consideration.

During the progress of the trial the plaintiff attempted to show a conversation which he had with Shepard in regard to the meaning of the word “ incompatibility,” which was excluded. And it is urged that this was reversible error. We think that probably the plaintiff had the right to introduce this evidence in order to show the interpretation which the parties had placed upon the word in question, which is not of so definite a character as to preclude evidence of a discussion as to its meaning prior to its insertion into the ■contract. But, notwithstanding this error, we do not think that there is any ground for a reversal of this judgment, for the reason that the conceded facts in respect to the letter above referred to show that as matter of law the plaintiff had been unfaithful to his employer and had secretly retained the papers in his possession by force of which he thought he might be able to swindle him, and it was with this purpose in his heart that he went on rendering such services as he did until he was finally discharged. This condition of mind is one which an employer has a right to have not exist in an employee. This secret intention to swindle his employer when the opportunity offered was clearly a breach of his contract of employment.

There are one or two other points which are raised upon this .appeal, but they are not of sufficient importance to justify discussion. Upon the admitted facts, therefore, as a matter of law, the plaintiff has broken his contract of employment and Shepard was justified in his dismissal.

The judgment and order appealed from should be affirmed, with costs.

Barrett, J., concurred.

Judgment and order affirmed, with costs.


text:
    Frederick P. Forster, Respondent, v. Charles E. Moore and Another, Appellants, Impleaded, etc.

      Parol authority to fill in the consideration in a mortgage — insertion of too large a sum.

    Parol authority is sufficient to authorize the filling up of a "blank as to a material part even of a sealed instrument, and the fact that the amount of the consideration of a mortgage as written therein in a blank by the mortgagee, in good faith, is somewhat greater than the correct amount, does not affect the validity of the instrument.
    Appeal by the defendants, Charles E. Moore and another, from a judgment of foreclosure and sale of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of January, 1894, upon the decision of the court rendered after a trial at the New Fork Special Term.

      R. J. Robeson, for the appellants.

      H. A. Forster, for the respondent.
   Barrett, J.:

This is an appeal from a judgment of foreclosure and sale. The action was to foreclose a third mortgage upon property in One Hundred and Sixteenth street, in this city, executed by both defendants. The consideration was in blank at the time when the mortgage was executed, and the main question presented by this appeal is whether the plaintiff was authorized subsequently to fill in the consideration. This question of fact has beeD decided adversely to these defendants, and, we think, correctly. Everything in the case points to the justice of the plaintiff’s, position. The property formerly belonged to the defendant Charles E. Moore. It was deeded by him to the plaintiff to secure the latter for advances made for Moore, and also to secure him against risk in giving a certain guaranty for Moore’s benefit.

Later, the property was conveyed by the plaintiff to Moore’s wife, the defendant Elizabeth Moore, at Moore’s request, she giving back the present mortgage, which, as between herself and the plaintiff, was the sole consideration for the transfer. To carry out the particular transaction which necessitated the transfer the plaintiff was to make further payments on Moore’s account, the precise amount of which could not be ascertained at the moment when the mortgage in question was executed.

Of course, so long as the title remained in the plaintiff he was secured against all advances. The giving up of the title and the substitution of the mortgage were- solely for Moore’s benefit and to enable him to carry out a transaction whereby he hoped to save the property. The intention of the parties was to keep the plaintiff secured precisely as though he still held the title. As the plaintiff" was to make advances even after the delivery of the mortgage it was entirely natural that he should be permitted to add such advances to those already made and to fill in the consideration for •the total amount due him. It would have been the height of folly for the plaintiff to make further advances without adequate security after parting with his title. And such security could only be by mortgage. The testimony is clear and convincing that the parties-intended to give him this security, and that to effectuate such intention they both fully authorized the filling up of the blank with the amount due or to become due to him.

And this was honestly done for the amount which the plaintiff believed to be due him. Shortly afterwards the plaintiff gave the defendant Charles E. Moore, in writing, a full and detailed statement of the items which made up the consideration written in the mortgage., This was in the form of a letter, to which Moore replied the next day without objecting to a single item. And it was not until the plaintiff, two days later, expressed a determination to foreclose the mortgage that Moore objected to this statement and questioned the mortgage.

The finding of fact on this head must be sustained. The legal conclusion follows that the instrument was valid. It is well settled that parol authority is sufficient to authorize the filling up of a-blank, as to a material part, even in a sealed instrument. (Chauncey v. Arnold, 24 N. Y. 338; Knapp v. Maltby, 13 Wend. 587; Texira v. Evans, 1 Anst. 228.) The blank in the present instance was properly filled in, by the same authority, for advances made after the execution of the instrument. This is upon the principle which governs with respect to mortgages given to secure future advances.

The learned justice at Special Term, upon a full inquiry as to thé amount justly due to the plaintiff, eliminated from the case a small part of the amount which was filled in.

Thus the judgment of foreclosure runs only for the sum actually due and payable to the plaintiff. The fact that the amount filled in as the consideration of the mortgage was somewhat greater than the amount awarded upon the trial does not affect the validity of the instrument, as it is not pretended that the larger sum was fraudulently inserted. It was simply a miscalculation. There can be no doubt that the plaintiff believed that the sum inserted was accurate. And the defendants cannot complain because the court, upon a revision of the plaintiff’s items of claim, has done them full and complete justice.

There is nothing in the point with regard to the application by the receiver of the rents collected by him. They clearly belonged to the plaintiff, as the receiver must have been appointed on his applition in this action.

The judgment should, therefore, be affirmed, with costs.

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

Judgment affirmed, with costs.


text:
    The People of the State of New York ex rel. John F. Mitchell, Relator, v. James J. Martin and Others, Commissioners of Police, etc., Respondents.

      Dismissal of a police officer for absence without leame — sufficient excuse therefor.

    The fact that a member of the police force of the city of New York was absent without leave for eight days, where such absence was neither voluntary, conscious nor blamable, and where he was laboring at the time of such absence under a temporary aberration of mind, is not sufficient to justify his dismissal from the police force.
    Certiorari issued out of the Supreme Court and attested on the 23d day of April, 1894, directed to James J. Martin, John C. McClave, Charles E. McLean and John C. Sheehan, composing the board of police of the police department of the city of New York, commanding them to certify and return all the records, evidence, papers, documents and proceedings concerning their action and determination in dismissing the relator from the service of said department.

      Edmund E. Mooney, for the relator.

      W. A. Sweetser, for the respondents.
   Van Brunt, P. J.:

There were two charges preferred against the relator: Fi/rst, absence without leave; and, second, failing to appear against a prisoner. The testimony taken in support of both charges was the same and arose out of the same incidents. The relator admitted the absence without leave, but attempted to justify the same upon the ground that his absence was neither conscious, voluntary nor blamable, he laboring under a temporary aberration of mind. The testimony which was offered before the police commissioners was all favorable to the claims sought to be established by the relator. Patrolmen were examined. They testified to noticing the unusual condition of the relator for some time prior to his disappearance. They also all concurred that there was no evidence of intoxication, and there is no proof whatever that the relator was at all addicted to the use of intoxicating drinks. It is true that he disappeared and was absent for eight days, and that he came home undoubtedly in a sick condition and was attended by his physician, who testified that he was laboring under a temporary aberration of mind. It is true that he recovered, as it is claimed upon the part of the respondents, with great rapidity; but it is a familiar fact in reference to diseases of the mind that they come suddenly and frequently disappear as suddenly.

It is claimed upon the part of the respondents that the probabilities are that the absence of the relator was due to an extended spree — to intoxication; but there is not the slightest particle of evidence to sustain any such proposition. And the counsel has the temerity to assert in his brief that, as it is the rule, when a policeman or patrolman is absent without leave for sickness, to send for a police surgeon, it is a suspicious circumstance, and that the relator had , ■some motive and acted in conjunction with his family or family physician in concealing his true condition, or his condition, whatever it might have been, from the relator’s superior officer. This assertion is made in the face of the fact which appears upon the record that the sending for a police surgeon was immediately suggested by the doctor, and that on the morniflg of his return the wife of the relator went to the station house and reported his condition, and that no police surgeon was sent to him because the police authorities were of the opinion that, having been absent without leave for five days, he had ceased to be a member of the force, and they had nothing further to do with him. Certainly the family of the relator took all the means within their power to procure the attendance of a police surgeon, and to enable the authorities at the earliest possible moment to ascertain the condition of the relator. It is difficult to see, under such circumstances, how counsel could make the assertion that it was a suspicious circumstance that the relator did not send for a police surgeon. It is true that one of the police surgeons testified that there were certain suspicious circumstances in respect to the evidence offered in behalf of the relator and in respect to the description of his demeanor. But it cannot be that upon mere theory the positive evidence tending to show an excuse for this absence of the relator can be utterly disregarded. If the police department are not in possession of the evidence of one of their own officials who could testify from a personal examination of this relator as to his condition almost immediately after his return, it arises from the neglect of the department, and not from any omission upon the part of the relator.

We are of the opinion that under the evidence the relator made out a case excusing his absence from duty, and that he should not have been dismissed on that account. The proceedings of the commissioners are, therefore, reversed, with costs, and the relator reinstated.

Follbtt and Barrett, JJ., concurred.

Proceedings reversed, with costs, and relator reinstated.


author: Yan Brunt, P. J.:

text:
    Claus Bathmann, Appellant, v. Catharine Bathmann, Appellant, Impleaded with Lena Neuss, Respondent, and Others.

      Action of partition — receiver of the rents and profits — grounds for Ms appointment.

    In a partition suit application was made hy a defendant having a very small interest in the premises in question, against the objection of the plaintiff and another defendant, for the appointment of a receiver of the real estate sought to he partitioned on the ground that one of the defendants was in the possession of the premises, and had collected the rents thereof, and refused to account for the same. This allegation was denied hy such defendant, who expressed her willingness to render such account at any time and to pay her share of such rents to the defendant by whom such application was made.

      Held, that it was erroneous to grant an order appointing a receiver when there was no evidence whatever that the defendant alleged to he in possession had acted with impropriety, or was unable to respond to any claim which might he made hy the moving defendant.
    Appeal by tlie plaintiff, Claus Bathmann, and by the defendant Catharine Bathmann, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of April, 1894, appointing Catharine Bathmann receiver of the rents and profits of the premises sought to be partitioned by the action herein.
    The order appointing the receiver provided, among other things, as follows:
    “ III. That said receiver be, and she hereby is, directed to demand, collect and receive from the tenant or tenants in possession of said premises, or other persons liable therefor, all the rents now due and unpaid or hereafter to become due or unpaid.
    “ IY. That the tenant or tenants in possession of said premises, and such other person or persons as may be in possession thereof, be and they are hereby directed to attorn as such tenant or tenants to said receiver, and until further order of the court to pay over unto such receiver all rents of such premises now due or unpaid or hereafter to become due or unpaid.
    “ Y. That the Said Catharine Bathmann within five days after the entry of this order render to the attorneys for the defendant Lena Neuss an account, under oath, of all rents heretofore collected and received by her from the tenant or tenants of said premises, and at the same time pay to the said defendant Lena Neuss, or to Babe & Keller, her attorneys, for her, her share or portion of said rents, as shown by said account.

      “ YI. That the said receiver hereafter, and during the pendency of this action, shall render to the attorneys for the said Lena Neuss a monthly statement, under oath, of all rents collected and received by her from the tenant or tenants of said premises, and to pay to the said defendant Lena Neuss, or to Babe & Keller for her, her share and portion of said rents.”

      Samuel Canvpbell, for the appellant.

      Rabe de Keller, for the respondent.
   Yan Brunt, P. J.:

This action was brought for the partition of certain real estate in the city of New York; and one of the defendants, the owner of a small interest therein, made this motion for the appointment of a receiver upon the grounds that the defendant Catharine Bathmann was in possession of and collected the rents of the premises sought -to be partitioned and refused to account for the same. The defendant Catharine Bathmann denied ever having had any demand made upon her for an account of the rents, and expressed her willingness to render such account at any time, and to pay over the share of the moving defendant. The court thereupon made an order appointing a receiver; and both the plaintiff and the defendant Catharine Bathmann appealed therefrom.

There seems to have been no ground whatever for the appointment. The allegation of a refusal to acccount was expressly denied, and there is no evidence whatever that the defendant Catharine Bathmann has acted with impropriety, or that she is unable to respond to any claim of the moving defendant; and it is r%ther a peculiar feature that- the only person who complains is the. respondent, the owner of a very small interest in the estate sought to be partitioned.

There does not seem to be any ground whatever for the intervention of the court, and the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Follett and Barrett, JJ., concurred.

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


author: Eollett, J.:

text:
    Asbury Lester, Appellant, v. The Mayor, Aldermen and Commonalty of the City of New York, Respondent.

      Tempora/ry annoyance to an owner of real estate caused by building on an adjoining lot — creates no claim for damages — aqueduct commissioners not the agents of the city of New Yorlc.

    Temporary annoyances caused to the owners of lots adjoining one on which new buildings are being erected or extensive improvements made, where no trespass is committed, and the work is prosecuted with care and diligence, do not give to such owners of adjoining lots a legal cause of complaint for consequential injuries caused by the prosecution of the work necessary in the erection of the buildings or the completion of the improvements. Such temporary use of property is legitimate.
    Under the provisions of chapter 490 of the Laws of 1883, the aqueduct commissioners of the city of New York are not the agents of the city, which has no control over the manner of doing the work provided for in such act.

      Appeal by tbe plaintiff, Asbury Lester, from a judgment of tbe Supreme Oourt in favor of tbe defendant, entered in the office of the clerk of the county of New York on the 18th day of May, 1894, upon the dismissal of the complaint directed by the court upon a trial before the court and a jury at the New York Circuit.
    Pursuant to chapter 490, Laws of 1883 (the Aqueduct Act), the city of New York, by the aqueduct commissioners, on the 3d of February, 1886, entered into a written contract with John Brunton & Co., by which the latter agreed to construct section No. 14 of the new aqueduct, extending from One Hundred and Thirty-fifth street at Convent avenue to One Hundred and Sixty-second street at Tenth avenue. The only provisions of the contract which are germain to this litigation are the third and fifth,, which are as follows:

      “ 8. Sufficient ground is to be furnished by the city at or near the shafts for the establishment of the working plant, but no material from the shafts or from the tunnel shall be dumped thereon. All excavated material is to be removed by the contractor, who must furnish the necessary dumping grounds for the same. The cost of such removal and of procuring such dumping ground is to be included in the price herein stipulated for shaft and tunnel excavation, And the contractor, at his own expense, must provide sufficient and proper drainage for all water discharged from the shafts and tunnel.”

      “ 5. The contractor, whenever so ordered, shall erect and maintain fences along the streets, roadways and around the grounds occupied by him. These fences must be of such a character as to be sufficient, in the opinion of the engineer, for the protection of the adjoining property.”
    At some time, the date not appearing, the city acquired, under chapter 490 of Laws of 1883, a lot 100 feet square, at the southeast corner of Tenth avenue and One Hundred and Fifty-seventh street, for the purpose of constructing the aqueduct. Since June 20, 1884, the plaintiff has owned and occupied a lot twenty-five feet wide and 100 feet deep on the south side of One Hundred and Fifty-seventh street and adjoining on the east said lot owned by the. city. In 1885 the plaintiff built on his lot a three-story frame building in which he has since resided. In January, 1886, the contractoi’s entered on the lot owned' by the city for the purpose of executing the contract, and erected blacksmith forges, sheds, steam engines, drills and various kinds of machinery and structures for the purpose of sinking a shaft known as No. 29 to facilitate the constriiction of the aqueduct. During the years 1886, 1887, and part of 1888, this machinery was run day and night, Sundays included, causing loud and disagreeable noises, creating smoke, dust and disagreeable odors which greatly annoyed the plaintiff and his family and reducing the rental value of his property, as is asserted, more than $1,000 per year. The plaintiff presented his claim to the comptroller, who refused to pay it, and July 12, 1892, this action was brought, which resulted in a nonsuit on which a judgment was entered dismissing the complaint, with costs.

      'James A. Jeering, for the appellant.

      William II. Olarh, for the respondent.
   Eollett, J.:

It is not alleged in the complaint, nor was it proved on the trial, that the site selected for the work was an improper one, that the work was negligently performed, or that any of the structures or machinery were unnecessary. In short, there is no allegation or evidence that the aqueduct commissioners, or any of the defendant’s agents, or the contractors or their servants, were negligent. Nor is there any allegation or evidence that trespasses were committed on the plaintiff’s premises. Before this action was begun the work complained of had been completed, the structures removed, and the lot owned by the city had been sold, but to what uses it has since been put does not appear. The undisputed evidence shows that the structures and work complained of were temporary, all necessary for the construction of the aqueduct authorized by chapter 490, Laws of 1883. Temporary annoyances are almost invariably caused to the owners of lots adjoining one on which new buildings are being erected or extensive improvements made, and in case no trespass is committed, and the work is prosecuted with care and diligence, the owners of adjoining lots suffering temporary inconveniences have no legal cause for complaint for consequential injuries caused by the prosecution of the work necessary to erect the buildings or to complete the improvements. Such temporary use of property is legitimate, and affords no ground for damages to an abutting owner who sustains consequential damages by temporary annoyances not negligently caused and not amounting to trespasses. Any other rule would render the improvement of property in cities unduly expensive and well nigh impossible. This case does not fall within the principle declared in Morton v. The Mayor, etc. (65 Hun, 32 ; affd., 140 N. Y. 307), but within the class of cases of which Radcliff v. The Mayor (4 N. Y. 195), Bellinger v. The N. Y. Central R. R. Co. (23 id. 42), and Atwater v. Trustees (124 id. 602) are types. (See, also, Dillon Mun. Corp. [4th ed.] § 987 et seq.)

In Morton’s case a permanent structure was erected which was held to be a nuisance, causing permanent injuries to the plaintiff’s property. The rule darnmum, absque imju/ria is applicable to this case. (Broom’s Leg. Max. 184; Shear. & R. Neg. [4th ed.] §§ 283, 299 and cases cited.)

Again, in an action arising under the Aqueduct Act, it was held that the aqueduct commissioners were not the agents of the city, and that it had no control over the manner of doing the work. (O’Brien v. Mayor, 15 N. Y. Supp. 523 ; affd., 65 Hun, 112; 139 N. Y. 543.)

The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


author: Follett, J.:

text:
    The Mutual Life Insurance Company of New York, Respondent, v. The Mayor, Aldermen and Commonalty of the City of New York, Appellant.

      Invalid assessment — action to recover the amount paid — when maintainable.

    jf a person pays in good faith, an assessment valid on its face, but void for want of jurisdiction, without notice of its invalidity, he can maintain an action to recover the sum so paid.
    Where a contract for the excavation of rock from a city street was let by such city without advertising for proposals, as required by statute, the assessment made for paying- the cost of such excavation is void.
    Appeal by the defendant, The Mayor, Aldermen and Commonalty of the City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in tbe office of the clerk of the county of New York on the 5th day of March, 1894, upon the verdict of a jury directed by the court after a trial at the New York Circuit, and also from an order entered in said clerk’s office on the 19th day of March, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      O. L. ¡Sterling, for the appellant.

      Charles E. Miller, for the respondent.
   Follett, J.:

October 30, 1876, the defendant entered into a contract with Bartholomew Noonan for the construction of a sewer in a street on which a lot of the plaintiff abutted. The contract provided for the excavation of rock at a price agreed on, though the proposals for doing the work had not been advertised as required by the statute then in force. (Chap. 335, Laws 1873, § 91.)

In 1879 an assessment of $1,398.88 on account of work done under this contract was levied against the plaintiff’^ lot, of which sum $996 was for the expense of excavating the rock under the contract. Subsequently the plaintiff, in ignorance of the fact that the contract for excavating rock had been let without advertising for proposals, as required by the statute, and not knowing that the assessment for paying the cost of its excavation was void, paid to the defendant the sum assessed, with interest. This assessment, though valid on its face, was void for want of jurisdiction. (Jex v. Mayor, 103 N. Y. 536; Matter of Merriam, 84 id. 596.) The plaintiff having paid the assessment in good faith, and without notice of its invalidity, may maintain this action to recover the sum paid. (Tripler v. Mayor, 139 N. Y. 1.)

The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


text:
    Andrew J. Rogers, Respondent, v. Elizabeth Patterson and Others, Appellants, Impleaded, etc.

      Lien of the creditors of a decedent on real estate— action to acquire such a lien— against whom it may he maintained.

    During three years after a decedent’s death his creditors have a species of statutory lien, running with the land, upon the real estate left by him, but after the expiration of three years this lien terminates, and his debts cease to be a charge upon such, real estate. The remedy against the heirs or devisees of such decedent then commences, and, under the statute, the lands may then be charged, but the aption. given against the heirs or devisees is not to enforce but to acquire the hen.
    The liability Of an heir for the debts of the person from whom he has inherited or taken land by devise is measured by the property which has descended to him; to that extent it is personal, and if the property has been alienated before the commencement by a creditor of the deceased of an action to acquire a statutory lien upon the same, such creditor may take a personal .judgment against the heir for its value. The remedy of the creditor, however, is founded solely upon the provisions of the statute, and it is confined to an action against the heirs of an intestate, and against' the devisees of a testator. It is not given as against the heir at law of a devisee, nor as against the devisee of an heir at law, and the only remedy afforded, by the statute, when the property has been alienated before the commencement of the action, is a personal judgment against the heir for the value of the property so alienated, whether it be alienated in good or bad faith.

      Semble, that after the obtaining of such j udgment and an execution thereon returned unsatisfied, the creditor may file his ordinary creditor’s bill to set aside a conveyance, made by such heir or devisee, alleged to be fraudulent; but whether such conveyance be fraudulent or not cannot be determined in the action brought to acquire the statutory lien.
    Appeal by tbe defendants, Elizabetli Patterson and others, from an interlocutory judgment of the Supreme Court in favor of the plantiff, entered in the office of the clerk of the county of New York on the 17th day of April, 1891, upon the decision of the court, rendered at the. New York Special Term, overruling demurrers to the complaint, and also from the orders made at the New York Special Term and entered in said clerk’s office, overruling demurrers to the complaint.

      Charles Fox, for the appellants.

      Oeorge M. Baker, for the respondent.
   Barrett, J.:

The complaint here demurred to is framed upon the theory that in an action under the statute against heirs to enforce their liability for debts of the decedent, to the extent of their respective estates in the realty, fraudulent transfers by such heirs can be attacked and judgment given that such debts be collected out of the realty notwithstanding such fraudulent alienation.

"We do not think this position can be sustained. It proceeds upon an inaccurate view of the rights of the creditor, and especially of the remedy provided by the statute. During three years after the decedent’s death the creditors have what has been styled “ a kind of statutory lien, running with the land,” upon the real estate left by him. (Hyde v. Tanner, 1 Barb. 80; Platt v. Platt, 105 N. Y. 497.) But after the expiration of three years even this lien terminates, and the debts cease to be a charge upon the real estate. (Same cases; Covell v. Watson, 20 Johns. 414; Wilson v. Wilson, 13 Barb, 252; Waring v. Waring, 3 Abb. Pr. 246.)

The remedy against the heirs or devisees then commences, and under the statute the lands may then be charged. The action against the heirs or devisees is not, however, to enforce, but to acquire the lien.

In that view,” as was said in Hauselt v. Patterson (124 N. Y. 349), the remedy is by action in equity having the nature of a proceeding in rem in such sense that when the land has not hem aliened hy the heir, the execution of the judgment shall be had by levy upon the real estate descended to him.”

The same view is taken in all the cases. Thus, in Wilson v. Wilson (supra) we find the following observations: “ It may perhaps bo said, in a loose, general sense, that unpaid debts are a charge upon the land in the hands of the heir after the personal estate is exhausted, because they may be made a charge. But they are no lien for any substantial purpose, either in law or equity, until made so by proper proceedings.”

In Covell v. Weston (supra) it was held that, since the statute, an heir having lands by descent is liable in respect to such lands whether he has aliened or not, and that in this sense, and no other, has the creditor of the ancestor any lien on the lands descended. “ The error,” said Spencer, Oh. J., into which the plaintiff’s counsel has fallen is in supposing that the creditor has an actual lien on the land. He has a lien on the heirs, in respect to the land, so that they cannot convey it, after action brought, to defeat his claim, but he has no lien on the land itself.”

In Waring v. Waring (supra) it was said that these proceedings against heirs must be rigorously and precisely pursued according to the statute, and that it was not until judgment that anything like a lien upon any interest in this real estate will be created.” (P. 251.)

These cases were cited with approval and a similar view taken in Platt v. Platt (supra), Earl, J., observing that: After the expiration of tbe three years the debts of the decedent may be enforced against the heirs and devisees in the mode specified in the statute, and they then cease to he a lien or charge i/n any sense wpon the real estate.”

The action is really to enforce the statutory liability of the heirs. That liability is measured by the property which descended to them. And to that extent it is personal. For if the property has been aliened before the commencement of the action the plaintiff may take a personal judgment against the heir for its value. (Code Civ. Proc. § 1854.)

The plaintiff’s remedy must be found solely in the provisions of the’statute. It is thereby confined to an action against the heirs of an intestate and to the heirs and devisees of a testator. It is not given as against the heir at law of af devisee nor as against the _ devisee of an heir at law. (Fink v. Berg, 50 Hun, 213.) “ Neither has the statute,” said Daniels, J"., in the latter case, “ by anything contained in it rendered the heir of a devisee liable for the debts of the testator making the devise, and as the remedy has been prescribed and regulated wholly by statute, at the same time being also declaratory of the right of the creditor, and the liability of a devisee as heir of another devisee has not been created, it cannot be maintained under the provisions of the law.”

It follows that the only remedy afforded by thé statute, where the property has been aliened before the commencement of the action, is a personal judgment against the heir for the value of the property so aliened.

"Whether aliened in good faith or bad faith, that is the judgment, and the only judgment provided for. Doubtless upon such a judgment and an execution thereon returned unsatisfied the creditor might file his ordinary creditor’s bill to set aside the conveyances alleged to be fraudulent. But that is not the office of this statutory action. And when we consider the nature’ and possible ramifications of such an action, the difficulty of trying therein collateral issues of fraud is apparent. The statute requires the action to be brought jointly against all the heirs or jointly against all the devisees. (§ 1846.) The sum which the plaintiff is entitled to recover must be apportioned among all the defendants in proportion to the value of the real property descended to each heir or devised to each devisee. (§ 1847.) Further conditions of a sufficiently complicated character are imposed by sections 1848, 1849 and 1850. “After the creditor,” as was said by Emott, J., in Waring v. Waring {supra), “has instituted a suit in the precise manner directed by the statute, has encountered all the defenses which may exist to his claim, and has had an accounting of all the debts and assets of the ancestor properly marshalled, he will at length obtain a judgment against each of the devisees for their property and proportionate share of his debt.”

The plaintiff, if his theory be correct, would add to these burdens an inquiry into the good faith of conveyances made by the several heirs. Some might not have aliened, some might have aliened honestly, others dishonestly, and so on. It is sufficient to say that an inquiry of that character is foreign to the purposes of such an action, and is authorized neither by the letter nor the spirit of the statute. The purpose of section 1853, prescribing that the final judgment shall not affect the title of a purchaser in good faith and for value, etc., was not to authorize an inquiry into the validity of such transfers in the statutory action, but simply to lay down a rule of general application with regard thereto.

Our conclusion is that the demurrers were well taken and should have been sustained. As to the defendants William A. Patterson and David Ronner, the grantees of certain heirs, the complaint does not state facts sufficient to constitute a cause of action herein. There is also an improper joinder of causes of action. As to the defendants Elizabeth Patterson and Catherine Bonner there is an improper joinder of causes of action, and also a defect of parties defendants, in that neither the other heirs nor their personal representatives have been brought in. As to this latter point see Dodge v. Stevens (94 N. Y. 216) and Wambaugh v. Gates (11 Paige, 513).

The interlocutory judgment appealed from should, therefore, be reversed, with costs of this appeal to Elizabeth Patterson and Catherine Bonner jointly, and their demurrer sustained, with costs of the Special Term to them jointly, and with costs of this appeal to William A. Patterson and David Bonner jointly, and their demurrer sustained, with costs of the Special Term to them jointly, with leave to the plaintiff to amend his complaint, if so advised, as to both or either of said defendants within twenty days, upon payment of tlie costs awarded to the defendants as to whom the plaintiff may so amend.

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

So ordered.


text:
    Marie T. Upington, Respondent, v. Michael A. Corrigan, Appellant, Impleaded with Others.

      Condition subsequent in a grant in fee — enforeible only by the grantor or his heirs — a forfeiture not defeated by the transmission of title —recovery of the estate by reason of a forfeitwe — proper pan'ty defendant.

    Where there is a grant of an. unqualified fee the rule is that a condition subsequent reserves to the grantor no estate or interest in the land. Every estate and interest of the grantor passes absolutely to the grantee, and upon the breach of such condition the estate does not ipso facto revest in the grantor.
    No one can take advantage of the breach except the grantor during his lifetime, and after his death those in privity of blood with him, his heirs, but not his devisees.
    A forfeiture, by reason of the breach of a condition subsequent contained in a deed, cannot be defeated by a transmission of the title to the premises in question, and the person in possession of such premises, and claiming to be the owner thereof in. fee, is the proper defendant in an action brought to recovei such premises whether he be the devisee of the grantee or obtained title by deed from such grantee.
    Appeal by the defendant, Michael A. Corrigan, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of February, 1894, upon the decision of the court rendered after a trial at the New York Circuit before the court without a jury, and also from said judgment, as amended by an order made at the New York Special Term on the 1st day of March, 1894.

      F. R. Coudert,dor the apjiellant.

      James II. Hunt, for the respondent.

      George Bliss, for defendant Pooler.
   Barrett, J.:

All but two of the questions now presented were decided adversely to the defendant upon the previous appeal. (69 Hun, 320.)

The defendants’ main contention upon the present appeal is that the right of action for breach of the condition subsequent passed under the will of Mary McDonough Davey to her devisees, and, consequently, that the plaintiff claiming as heir at law must fail.

It is conceded that this position would not be tenable at common law, but the appellants insist that our Statute of Wills is broad enough to cover such a devise. There can be no doubt that under this statute every interest in real property is devisable. (2 R. S. 57, § 2.) Such was the expressed intention of the revisers. (See note Stat. at Large [5th ed.], p. 365.) Commenting upon this statute, Chancellor Kent says (4 Kent’s Comm. 512): “The New York Revised Statutes have altered the language of the law and put all debatable questions to rest * * * by declaring that every estate and interest descendible to heirs may be devised.”

The question then is whether Mrs. Davey’s right, upon the breach of the condition subsequent, was devisable. If that right was an interest in land it was devisable. Otherwise, it passed to the grantor’s heirs. It is well settled that this right is inalienable (Nicoll v. N. Y. & Erie R. R. Co., 12 N. Y. 121), and it is difficult to see how that which is inalienable, because the grantor has neither interest nor estate to alien, can be devisable. We agree that under the hroad provisions of the Statute of Wills, expectant and future estates, contingent as well as vested, are devisable. So are interests, in lands of every kind. So is a right of entry, without seizin {Jackson v. Varick, 7 Cow. 238), even though at the time of the devise and of the devisor’s death the land be in the adverse possession of another. (Same case.) The right of entry here spoken of is, however, a vested right descendible to the heirs at law. Even a possibility coupled with an interest is devisable if the person in whom the interest is to vest can be ascertained {Pond v. Bergh, 10 Paige, 153), though a mere naked possibility is not. {Deas v. Horry, 2 Hill Ch. [S. Car.] 248; Nicoll v. N. Y. & Erie R. R. Co., 12 N. Y. 139.) So, where the grantor has an interest, independent of the possibility of reverter, as where he has a reversion of what Remains after the expiration of a particular estate, he may assign and doubtless devise such reversion, and with it his right of entry for nonperformance of a condition subsequent. {Nicoll v. The N. Y. & Erie R. R. Co., supra.)

"Where, however, there is a grant of an unqualified fee, the rule is invariable that a condition subsequent reserves to the grantor no estate or interest in the land. Every estate and interest of the grantor passes, absolutely, to the grantee. A clear understanding of the nature and legal effect of a condition subsequent is all that is essential to a correct solution of the present question. It is well settled that upon breach of the condition the estate does not ipso facto revest in the grantor. The grantor may not avail himself of the breach, and no one else can take advantage of it. In Schulenberg v. Harriman (88 U. S. 63) Mr. Justice Field, speaking for the Supreme Court of the United States, said: And it is settled law that no one can take advantage of the non-performance of a condition subsequent annexed to an estate in fee, but the grantor or his heirs, or the successors of the grantor if the grant proceed from an artificial person ; and if they do not see fit to assert their right to enforce a forfeiture on that ground the title remains unimpaired in the grantee.”

This case was cited with approval and followed in Towle v. Remsen (70 N. Y. 312).

The grantor has a right of entry, which he must assert before the estate is restored. This right of entry was defined in De Peyster v. Michael (6 N. Y. 506) in this wise: “ It is not a reversion, nor is it the possibility of reversion, nor is it any estate in the land. It is a mere right or chose in action, and if enforced, the grantor would be in by the forfeiture of a condition, and not by a reverter.”

And Ruggles, Oh. J., illustrated this further, as follows: It is a totally different interest from the possibility of reverter spoken of by Coke and in the Touchstone.’ It is no more than the possibility of a forfeiture. When property is held on condition, all the attributes and incidents of absolute property belong to it until the condition be broken.”

The authorities are unvarying in their assertion of this doctrine. Thus, in Nicoll v. N. Y. & E. R. R. Co. (supra), it was held that a failure to perform a condition subsequent does not divest the title, and that the right of entry which results from the breach is not a reversion or an estate in land. “ The grantor or his heirs,” said Parker, J., may not choose to take advantage of the breach, and until they do so by entry, or by what is now made by statute its-equivalent, there is no forfeiture of the estate. This was the common law, and it has not been altered by statute so as to give a right of entry to an assignee in any instance not coupled with a reversionary interest, as in the cases of estates for years and for life, except in cases of leases, or rather of grants in fee, reserving rent. To that extent the law was changed in England by 32 Henry Till, chapter 34, and similar enactments have been made in several of the States. In this State these provisions will be found at 1 Revised Statutes, 748, sections 23, 24 and 25, and are limited to grants or leases in fee reserving rents, and to leases for lives and for years. As to other grants upon condition the common law is unchanged.” (See, also, observations of Gardner, J., on pages 139 and 140.)

The rule stated in this case was reaffirmed in Towle v. Remsen (supra), and Duryee v. Mayor (96 N. Y. 497), and again in Vail v. Long Island R. R. Co. (106 id. 287), where Andrews, J., observed that the possibility of reverter merely is not an estate in land, and, until the contingency happens, the whole title is in the grantee.” It was also clearly asserted by the Supreme Court of the United States in Ruch v. Rock Island (97 U. S. [7 Otto] 696), Hr. Justice Swayne using this language: “ If the conditions subsequent were broken, that did not ipso fado produce a reverter of the title. The estate continued in full force until the proper step was taken to consummate the forfeiture. This could be done only by the grantor during his lifetime, and after his death by those in privity of blood with him. In the meantime only a right of action subsisted, and that could not be conveyed so as to vest the right to sue in a stranger.”

The rule laid down by all these authorities is decisive of the present question. As was said in the case last cited, no one could claim the forfeiture save the grantor during his lifetime, and after his death those in prwity of blood with him ; no one, in fact, save the grantor and his hews. (See Schulenberg v. Harriman, supra.)

This rule runs unvaryingly through all the cases. The option is personal to the grantor and his privies in blood. The grantor can'not confer the option to claim or not to claim the forfeiture upon another, either by assignment or devise. Nor can the devisee of the grantor take advantage of the condition. (Southard v. Central R. Co., 26 N. J. L. 13.) A different rule seems to have been laid down in Massachusetts (Austin v. Cambridgeport Parish, 21 Pick. 215), possibly, as stated in note 1, page 904, volume 6 of American and English Encyclopaedia of Law, because of the construction of a clause in the public statutes of Massachusetts. (Chap. 173, § 3.)

It is conceded that there was no breach at the time of Mrs. Davey’s death. But, even if there had been such breach, the then unclaimed right to take advantage of such breach did not go to her devisee, but vested in her heirs at law.

This disposes of the main question. It was also claimed that the question as to what was a reasonable time to fulfill the condition was not correctly decided. We think, however, that the evidence amply supported the finding of fact on this head, as well as the conclusion of law, that the condition subsequent had been broken.

The action was properly brought. The title is in Archbishop Corrigan, not as the spiritual successor of ArchbishojD Hughes, but as the devisee of Cardinal McCloskey, who took as devisee of Archbishop Hughes. Archbishop Corrigan is made defendant upon the same principle as though he were the grantee of Bishop Hughes. He is in possession claiming the fee. As was said in Jackson v. Topping (1 Wend. 394): “The grantee of the father having conveyed to the defendant the suit is necessarily against him. If enough has been shown to entitle the lessor to recover, had the first grantee continued in possession, it is sufficient against the defendant. He succeeded to the rights of his grantor and no more. He represents him, and, for the purpose of this suit, stands in his place. In law there is a privity of estate between them, and if there has been a forfeiture it cannot be defeated by a transmission of the title from one to the other. This was an estate upon condition.”

Our conclusion is that there was a breach of the condition subsequent prior to the commencement of this action; that a right of re-entry thereupon vested in Mrs. Davey’s heirs at law, and that this right was duly asserted by the present proceedings.

It follows that the judgment appealed from was right and should be affirmed, with costs.

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

Judgment affirmed, with costs.