author: Yan Brunt, P. J.: Ingraham, J.:

text:
    ROSEANNA CASSIDY, Plaintiff, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Defendant.

      Municipal corporations — Us pendens — how far it is notice to a city not to pap an■ award, — ratification—election of remedies — construction of chapter 86, Laws c/1813, sections 183, 184.
    In. an action, brought in 1888, to recover an award, in proceedings to acquire land by the exercise of the right of eminent domain, made by the city of New York for damages to leasehold property, it appeared that on May 3,1883, the plaintiff began an action against certain persons, including one Kennedy, to recover possession of. the premises in question, and on that day filed a Us pendens describing them.
    In 1880 the city took the proceedings to condemn the property in question. An award was made in 1884 to one Astor, who owned the fee, and also to Kennedy, for damage to the building. In February, 1885, the latter award was paid by the city to Kennedy, who was in possession.
    In January, 1886, an interlocutory judgment was entered in the action, begun by the plaintiff against Kennedy and others, awarding possession to the former, and, among other things, directing Kennedy to account before a referee for any moneys received by him by way of damages to the property, resulting from the taking of it, or any part of it, during the pendency of the action, by the city of New York, for public uses. Final judgment upon the report of the referee was subsequently entered. This awarded her a money judgment against Kennedy, upon which execution was issued and returned unsatisfied.

      Reid, tliat, in tbe absence oí actual notice, tbe filing of tbe Us pendens in the action of the plaintiff against Kennedy and others was not notice to the city of tbe plaintiff’s claim to tbe award, and that tbe city was protected in paying it to Kennedy.
    That tbe action of the plaintiff against Kennedy, in which she sought to recover tbe award, was a ratification of tbe city’s payment to him, and legalized it as. between her and tbe city.

      Semble, that where, under chapter 86 of tbe Laws of 1813, commissioners have made an award to a specific person, tbe city is not bound to pay tbe award to that person and thus leave the true owner to bis action against such person. (Per Van Brunt, P. J., and Daniels, J.)

      Semble, that tbe ascertainment of tbe person entitled to damages in said proceedings is incidental, and not final; and that if, after notice of a claim to an award,, tbe city should pay it to another than tbe claimant it would do so at its peril., as regards such claim. (Per Van Brunt, P. J., and Daniels, J.)

      Matter of Department of Paries (73 N.-Y., 560) explained.
    Fxceptions of the defendant, the Mayor, Aldermen and Commonalty.of the City of New York, directed to be heard in the first-instance at General Term, taken upon a trial had at the New York Circuit before the court and a jury, at which trial the plaintiff recovered a verdict for $1,066.65.
    The plaintiff, on May 3, 1883, began an action, as an individual and as administratrix, with the will annexed, of William McKenna,, against one James O. Kennedy and other persons, to set aside transfers of the premises in question made to Kennedy by the other defendants. She filed a lis pendens therein on May 4,1883. Kennedy was then, in possession. The fee was owned by William B. Astor, who, in 1880, had leased it to Kennedy. In 1880 the city took proceeding® to open a street, and the report of the commissioners of estimate and assessment was made in July, 1884. An award was made to Astor'and to Kennedy; $900 was awarded for damage to a party-wall. On February 4, 1885, this award was paid to Kennedy.
    The action, begun by the plaintiff against Kennedy and others,, was tried in January, 1886, and an interlocutory judgment was entered, which was in part as follows:
    That the defendant, James C. Kennedy, deliver to the plaintiff forthwith the possession of said lot No. 298 (also designated by the street number 429 West Thirteenth street, New York), with the buildings and appurtenances thereto belonging; and in case possession of the said premises cannot be delivered by reason of the same or any part thereof having been taken for public uses by the city of New York during the pendency of this action, or for any other reason, then the said defendants shall respectively account to the plaintiff for any and all moneys received by them by way of damages to said property, or for taking of the same or otherwise.
    And it is further ordered and adjudged that it be referred to John J. Townsend, Jr., Esq., counselor-at-law, of the city of New York, who is hereby appointed referee, to take an account of the rents and profits of the said premises, as above provided, and of all moneys or other things of value received by the defendants, or any of them, by the sale or transfer of said premises, or any part of said premises, or for damages by reason of the taking of said property, or of any part thereof, by the city of New York for public uses or otherwise ; and to ascertain and determine the amount due from said defendants to the plaintiff by reason of the matters aforesaid, and to report the same to the court with all convenient speed.
    A final judgment was entered thereon in which the plaintiff recovered judgment against Kennedy for $5,509.61. An execution issued thereon was returned unsatisfied.

      J. O. Foley, for the plaintiff.

      O. W. Fidgway, for the defendant.
   Yan Brunt, P. J.:

While concurring in the result arrived at by Mr. Justice Ingraham in this case, it seems necesssary to notice that part of the opinion in which it is claimed that it is decided by the Court of Appeals in the Matter of Department of Parles (13 N. Y., 560), that where the commissioners have made an award distinctly to one person in proceedings under the act of 1813, chapter 86 (2 R. L., 312), and cases to which the provisions of that act are made, applicable, the city is bound absolutely to pay the award to the person to whom the award is made, leaving any other person claiming title to the projierty condemned and to the award, to their action against the party to whom the award is made.

Upon reference to the case cited it will be seen that the court in speaking of the final and conclusive character of the award was referring to the interest condemned and its value, and to those features only.

The court says: “ The award of the commissioners of estimate and assessment is required, by the statutes, to be confirmed by the Supreme Court, and when so confirmed is made final and conclusive both upon the city and the owners of the land taken. * * * Under the statute of 1813, there is ample opportunity for the correction of all mistakes of law and fact, and unless they are corrected in the proceedings before confirmation all parties interested are precluded from complaining of them. The award after confirmation becomes in the nature of a judgment which cannot be assailed collaterally. It is as final and conclusive upon all parties as a judgment.” The court further says: “ The amount awarded must be taken to have been made for the interest of the unknown owners, whatever it was. If it was too great, the city should have moved to correct it before confirmation of the award.”

The sole question before the court upon that application was to determine who the unknown owner of the land was, and when that was determined he was entitled to the money just as if he had been known, and the award had been to him by name. It is immaterial whether he owned an absolute fee or a fee subject to a public easement. The amount awarded must be taken to have been made for his interest, whatever it was. That seems to have been the question which was adjudicated upon in the case cited, and nothing more. Furthermore, the court could not have intended to hold that the report of th.e commissioners was final and conclusive upon the city in view of the provisions of section 183 of the act of 1813, by which it was provided that: “The respective person or persons, or party or parties, in whose favor the same (the awards) shall be so reported, his, her or their executors, administrators or successors, at any time or times, after application first made by him, her or them to * * * may sue for and recover the same, with lawful interest from and after the said- application therefor, and the costs of suit, in any proper form of action against the said mayor, * * * in any court having cognizance thereof, and in which it shall be sufficient to declare generally for so much money due to the plaintiff or plaintiffs therein, by virtue of this act, for premises taken for the purposes herein mentioned, and it shall be lawful for the plaintiff or plaintiffs to give any special matter in evidence under sucli general declaration; and this act and the report of said commissioners, with proof of the right and title of the plaintiff or plaintiffs to the sum or sums demanded, shall be conclusive evidence in such suit or action.”

It is clear that, if the report was to be conclusive as to the person named, the legislature would not have provided that the report, with proof of the right cmd title of the plaintiff or plaintiffs to the sum or sums demanded,- shall be conclusive evidence in such action. If the report itself ivas conclusive upon the point of ownership,, it would clearly not have been deemed necessary that proof thereof should be offered upon the part of the plaintiff.

This view is further emphasized by section 184 of the same act, which provides that: Where any such sum or sums, or compensation so to be reported by the said commissioners in favor of any person or persons, or party or parties whatsoever, whether named or not named in the said report, shall be paid to any person or persons, or party or parties whomsoever, when the same shall, of right, belong and ought to have been paid to some other person or persons, or party or parties, it shall be lawful for the person or persons, or party or parties, to whom the same ought to have been paid, to sue for and recover the same, with lawful interest and costs of suit, as so -much money had and received to his, her or their use, by the person or persons, party or parties, respectively, to whom the same shall have been so paid.”

Here the right of the real owner to recover the award, even after it has been paid to the persons named in the report, is distinctly recognized. How much more would he have the right to recover before any payment to the person named in the report was made ?

This is the construction put upon this section of the act of 1813 by the Court of Appeals in the case of Spears v. The Mayor (87 N. Y., 359).

In that case an award had been made to one Matthews, as mortgagee, after another claimant, of the amount of the award, had commenced an action in equity to restrain the defendant, the city, from paying the award to Matthews, and to establish the plaintiff’s claim thereto. After the commencement of this action Matthews sued the city to recover, as mortgagee, the amount of the award. The city made default, and judgment for the full amount was entered against it, which it paid; it claiming that, hy virtue of the particular act then under consideration and various provisions of the statutes in relation to the opening of streets and avenues, the plaintiffs could not maintain their action.

It was held by the Court of Appeals that under these provisions the ascertainment of the person entitled to damages was incidental and the report of the commissioners was not conclusive in regard thereto, and that the payment by the city after notice was at its peril; and the learned judge who wrote the opinion, being the same who wrote the opinion in the case first cited, uses the following language: “ Under' these provisions of law, the contention on the part of the appellants is that the report of the commissioners was so far conclusive, as to the peison entitled to the award, that the city was obliged to pay the same to Matthews, and that the only remedy of the plaintiff’s was to recover the amount thereof of Matthews after payment to him. Our attention has been called to no decision giving such a construction to these provisions of law. The main purpose of the appointment of commissioners was to have the damages in consequence of lands taken for street improvements appraised and the amount thereof assessed as directed by law, and for that purpose their report, when confirmed, unless vacated or set aside by some direct proceeding, was declared final and conclusive. The ascertainment of the names of the persons whose lands were taken, or to whom damages were to be paid, was merely incidental to the main purpose, and was for subsequent guidance of the city authorities and the protection of the city. The very terms in which the provisions of the law are expressed show that the report was not to be conclusive as to the persons entitled to the damages awarded, because it is provided in section 184, that even after payment to the person named in the award, the rightful claimant of the damages may recover them of the person thus paid; and in section 183 it is provided that béfore the person named in the award can recover the amount thereof of the city, he must prove not only the report of the commissioners, but his right and title to receive the same; hence, as we construe that section in the suit by Matthews against the city for this award, if the city had defended, he would have been obliged to prove his right and title to the award, and he could have been defeated by proof that these plaintiffs were entitled to receive payment thereof. It is undoubtedly true that the city would be justified to pay the person named in the award unless it had received notice of an adverse claim. After such notice, and certainly after suit commenced for the award by a person not named in the report as entitled thereto, the city would pay to the person named therein at its peril. This construction of the statutes can lead to no serious embarrassment of the city in paying such awards, because, in the case of conflicting claims known to it, it can compel an interpleader, and thus relieve itself from embarrassment or double responsibility. The construction contended for would operate unjustly upon persons situated like these plaintiffs.

“ They could not sue the city, and they might not be able to compel the city to pay to the person named in the award, and they thus might be compelled to wait an indefinite time until the person named in the award should 'choose to compel payment to him ; and after such payment the only security they would have for their damages would be the personal responsibility of such person.

“ Here the plaintiffs were, in fact, entitled to the award made. They had a double remedy; before payment by the city to Matthews they could sue the city; after payment to Matthews they could sue him.”

The claim upon the part of the plaintiff that the filing of the notice of Us pendens in the action brought by her against Kennedy in respect to this property was notice to the city cannot be maintained, because it is well settled that, even if a deed has been recorded (and certainly a Us pendens is no greater notice than a deed), the payment by the city in good faith to the party named in the report as the owner will protect the city against the true owner.

It is only when actual notice is given to the city that it has any reason to refuse to pay to the party named in the report.

It would seem, also, that the plaintiff having elected to call Kennedy to account for the money which he had received, she is deprived from jmrsuing any remedy she might have had against the city.

The criticism passed upon the case of Fowler v. Bowery Savings Bank (113 N. Y., 455) by the counsel for the plaintiff does not seem to distinguish it in principle from the case at bar.

Tbe exceptions, therefore, should be sustained and a new trial ordered, with costs to defendant to abide event.

Daniels, <7., concurred.

Ingraham, J.:

There are two objections which are fatal to plaintiff’s recovery in this action.

Upon the confirmation by the Supreme Court of the report of the commissioners of estimate and assessment, relative to the opening of the street mentioned in the complaint, the order confirming such report became a judgment pronounced on a full hearing of the parties and conclusive in its character as to all questions litigated or which might have been litigated in the proceedings. (Dolan v. The Mayor, etc., 62 N. Y., 475.) And this principle has many times been reaffirmed by the Court of Appeals. The last case is Donnelly v. The City of Brooklyn (121 N. Y., 17). It is a little difficult to see why the confirmation of the report is not conclusive between the owner of the property and the municipal corporation as to the person to whom the award is payable.

By section 970 of the consolidation act,- the commissioners were required to make a just and equitable estimate and assessment of the loss and damage, if any, over and above the benefit and advantage or of the benefit and advantage over and above the loss and damage, as the case may be, to the respective owners, lessees, parties and persons respectively entitled to or interested in the lands, tenements, etc., required for the improvement. Such owners, lessees, parties and persons respectively entitled to or interested in the lands, tenements, etc., are parties to the proceedings; they have the right to appear before the commissioners and before the court, and the commissioners and the court have power to correct any error in the report; and upon the report being confirmed it is conceded to be conclusive as to the amount of the damages awarded, and as to the amount of the assessment for benefit.

The ownership of such lands and tenements was a question tha: could have been litigated before the commissioners and before the court; and when the commissioners report that an individual in entitled to the award, as such owner, and such report is confirmed by the court, I do not see any reason why such an adjudication is not as conclusive, as between the owner of the property and the defendant, as any other adjudication necessarily involved in the proceeding.

Such an adjudication is not conclusive as between claimants to the fund, for, by section 18! of the act of 1813, re-enacted in section 993 of the consolidation act, it was expressly provided that where the sum reported by said commissioners in favor of any person or persons, whether named or not in such report, shall be paid to any person when the same shall, of right, belong to some other person, it shall be lawful for the person to whom the same ought to have been paid to sue for and recover the same as so much money had and received to his or their use by the person or persons, respecttively, to whom the same shall have been so paid; but, as between the owner of the property and the defendant, one of the questions upon which the commissioners were to report, and which the court, by its order confirming the report adjudicated upon, was the individual to whom the award should be paid.

In the case of Spears v. The Mayor (87 N. Y., 372) the Court of Appeals held that the final order was not conclusive as to the persons entitled to the damages awarded. At page 37!, however, the court say : “ If the commissioners had made the award distinctly to Matthews for his mortgage interest, then no other person could have claimed such award, and the city would have been absolutely bound to pay him upon principles laid down in the Matter of Department of Parks (73 N. Y., 560).”

In that case the rule is stated as follows: “ Under the statute of 1813 there is ample opportunity for the correction of all mistakes of law and fact, and unless they are corrected in the proceedings before confirmation all parties interested are precluded from complaining of them. The award, after confirmation, becomes in the nature of a judgment which cannot be assailed collaterally. It is as final and conclusive upon all parties as a judgment.”

In this case the award of the commissioners was to James C. Kennedy for the party-wall, $900, and it is for that award that the plaintiff seeks to recover. It would seem, therefore, that such an award, made by the commissioners to Kennedy for his interest in a party-wall, comes within the rule as stated in Spears v. The Mayor (supra), that no other person could claim it, and the city was bound absolutely to pay it to him. But whether that is so or not, it is clear that the city would be justified in paying Kennedy, unless it had receiveda notice of an adverse''claim to the fund. (See Spears v. The Mayor, supra.)

The evidence is that the city did pay Kennedy the amount of the award, and unless, at the time of such payment, the city actually had notice of the adverse claim, the city 'was protected by such payment and the plaintiff cannot recover.

It is not claimed that any express notice was given to the city, but it appeared that prior to such payment plaintiff had commenced an action against Kennedy claiming the title to the property, and had filed a lis pendens, and it is claimed on behalf of plaintiff that the filing of such Us pendens was a notice to the city that she claimed this award.

I do not think that the notice of Us pendens was a notice to the city of the adverse claim. On the confirmation of the report the title of the property taken for the improvement vested in the city, and the city became bound to pay to the person named, as the owner of the property, the amount awarded as the value of the property taken, and such obligation of the city became a right of action which vested in the person named as such owner. No specific fund was set apart as belonging to the owner of the property, the title to which vested in such owner.

The plaintiff was, in contemplation of law, a party to the proceedings, and her Us pendens was subject to the judgment in that proceeding.

The city was, therefore, justified in assuming that the direction of the court directing the money to be paid to Kennedy was, as between plaintiff and defendant, a protection for the payment of such money, notwithstanding any prior claim or general notice that the plaintiff had given that she claimed an interest in the property, and that any claim that would entitle the plaintiff to the award, made before the adjudication, had been determined by the order of the court confirming the report of the commissioners adversely to the plaintiff.

I am also of the opinion that the action of the plaintiff in seeking to recover from Kennedy the amount paid to him by the city was a ratification of such payment, and legalized it as between plaintiff and the city. The action given to the plaintiff against the person to whom the payment had been made was, by the statute, declared to be an action for money had and received. Such an action depends upon the receipt by the defendant of money belonging to the plaintiff, and when plaintiff sought to recover such money from Kennedy it legalized the payment by the city to Kennedy, thus discharging the city.

The plaintiff could not occupy the position of claiming that the city had paid her money to Kennedy, and obtaining a judgment against Kennedy .for such money, and at the same time claim that the city was still her debtor and owed money to her. (See Fowler v. Bowery Savings Bank, 113 N. Y., 455.) Where the court say : “ But if a trustee is bound to pay money to a beneficiary as a debt due from him to the beneficiary, then if he makes payment to another person he has not paid the debt, and the money paid is not, in fact, the property of the beneficiary. In such case the beneficiary may ignore the payment and sue the trustee as his debtor, or he may ratify and adopt the payment and sue the person receiving the money as his debtor, but he cannot do both. Thei’e is, in such a case, a breach of trust or not, as he may elect, and his electiozi once effectually made, is conclusive forever.”

• In this case the defendant was upon the confirznation of the report liable to pay to the owner of the property the award made by the commissioners; that moziey was paid to Kennedy. Assuming that plaintiff’s positiozi is correct, that she then had a cause of action against the city for the amount of the awai’d as owner of the property, she could either sue the city, disregarding the payznent to Kennedy, or sue Kennedy, affirzning that her money had been paid to Kennedy by the city.

She made her election to sue Kennedy and obtained against liizn a judgment for the amount paid by the city to him, and by such action ratified that payznent by the city as a payment on her account.

I think, therefore, that plaintiff, upon the facts proved, was not entitled to recover, and that the exceptipns must be sustaizied and a new trial ordered, with costs to defendant to abide the event.

Daniels, J., concurred in the result.

Exceptions sustained and new trial ordered, with costs to defendant to abide event.


source: Caselaw Access Project

author: Barrett, J.:

license: Public Domain

text:
    CHARLES WHITLOCK, Respondent, v. WILLIAM T. WASHBURN, as Executor, and EMMA RICHARDSON, as Executrix, of BENJAMIN RICHARDSON, Deceased, Appellants, Impleaded with Others, Defendants.

      Power in trust — w7ien it is created — element of discretion in the donee — agency — patrol evidence — •all donees must unite in exercising such a power — delegation — ratification — must he with Tcnoioledge — damages.

    One Benjamin Richardson devised to his executor and executrix certain real estate intrust, to sell the same “from,time to time, as the same can he sold to advantage,” and to pay the .balance, after payment of debts and legacies, to certain persons. Both of the executors having qualified, one of them thereafter made a contract, under seal, to sell some of the real estate which had belonged to the testator, in which contract he was described as “William T. Washburn, Exr.,” his signature thereto being in the same form. The contract bound “his heirs, administrators and .assigns.”
    In an action brought by the purchaser to reform the instrument and enforce it as reformed:

      Held, that the action could not be maintained.
    That as no valid express trust was created by the will the land descended to the heirs of the testator, subject to the execution of the power in trust.
    That the power was not merely given to the executors as such, but there being a discretion given them as to the time and manner of the sale of the real estate, it also involved an element of personal trust and confidence apart from their office.
    That the contract entered into was the contract of Washburn as an individual.
    That, as it was under seal, parol evidence that it was intended as the contract of the estate was inadmissible.
    That the power could not be exercised by one of the donees only, nor could it be delegated.
    That as it could not be delegated it could not be ratified by parol.
    That a ratification to be valid must have been in writing, subscribed by the principal, and in such a form as would have made a valid contract within the statute if it had been originally made in that form by the principal.
    That a ratification must be made with full knowledge of the material facts, and if it be of a written contract, with knowledge of its contents and the manner of its making.
    That there could be no recovery against the estate for damages, because the donees » of-a power failed to exercise it after contracting to do so.
    Appeal by tbe defendants, William T. Washburn, as executor, and Emma Richardson, as executrix, of Benjamin Richardson, deceased, from a judgment of the Supreme Court, entered in the office of the clerk • of the city and county of New York on the 13th day of March, 1891, after a trial at the New York Special Term without a jury, reforming a certain contract made by the defendant Richardson, as alleged, as such executor, by adding the name of Emma Richardson as such executrix, and declaring the con tract, as reformed, to be a valid and binding obligation on the said William T. Washburn, executor, and Emma Richardson, executrix, etc., of Benjamin Richardson, deceased, and upon the decedent’s estate, and in the event of a failure to perform on the part of the executor and executrix, awarding damages to the amount of $6,000 and costs to the plaintiff.
    The will of Benjamin Richardson provided, among other things, as follows:
    Seventh. I give, devise and bequeath to my executor William T. Washburn and to Emma Richardson, wife of my brother Joseph, my executrix and their successors in said office, all the balance of my real estate, wherever located, in trust for the purposes following:

      First. I hereby direct my said executor and executrix to sell ail said real estate from time to time as the same can be sold to advantage ■and out of the avails thereof, to pay all my just debts, all the incumbrances upon said real estate and all the legacies herein given, and after all said debts, incumbrances and legacies are paid, to' pay the balance remaining to such of my children as may be living at the time of my decease, and the share of such of my children as now are or as may at the time of my decease be dead to their children in such proportion or shares as the law would give them if I died intestate.
    I give, devise and bequeath the residue of my estate, if any, both real and personal, to my granddaughter Ella Birdsall, her heirs and assigns forever.

      II. G. Wood, for the appellants.

      David MoOlure, for the respondent.
   Barrett, J.:

This action was brought for the reformation of a contract for the sale of certain real estate in this city, and for a specific performance of such contract when reformed. The defendant Washburn is executor, and the defendant Richardson is executrix of the last will and testament of Benjamin Richardson, deceased. The latter, in his lifetime, was the owner of the property in question, and by his will he devised this property, with other real estate, to these defendants, and to their successors in office, in trust to sell the same and to apply the proceeds in a certain manner not necessary to be now specified. The power is in the form of a direction “ to sell all said real estate, from time to time, as the same can be sold to advantage.”. Both the executor and the executrix duly qualified and have since acted.

It is entirely clear that the title to the property in question was not vested in the executor and' executrix. There was no such express trust as is authorized by law, and, consequently, the land descended to the heirs of the testator subject to the execution of the power. At the same time, it should not be overlooked that, as donees of the power, these defendants act, under the will, as individuals clothed with a personal trust, and not in their characters of executor and executrix. As was said by Duek, J., in Dominick v. Michael (4 Sandf., 409): “An executor, as such, has no estate in the lands of the testator, and no authority to dispose of them: When he takes an estate, it is as a devisee, and when am, authority, as the donee of a power P It is' true that, by the will, qualifying as executor and executrix is made a condition of the donees acting under the power, but having performed that condition they act, with regard to the real estate, as devisees of the power thus created by the owner of the estate, and not under the authority conferred by the surrogate. (Newton v. Bronson, 13 N. Y., 593; Conklin v. Egerton’s Administrators, 21 Wend., 430.) The legal office of an executor should not be confounded “ with that ” (we quote from the opinion of Cowen, J., in the case last cited), of one who is not so in any sense of the word, but who is the mere donee of a trust power; an authority which, so far from having any reference to the office of executor, might just as well have been conferred by the will on any other not named as executor, and one who might have executed the power without’ probate or letters testamentary.”

It will also be observed that, although the direction to sell the real estate covered by the power is, in a sense, imperative, yet there is an element of discretion both as to time and advantage. This latter consideration is also adverted to in Conklin v. Egerton’s Administrators, and Cowen, J., quotes approvingly the rule laid down by Sherman, J., in the Ohio case of Wills v. Gowper (2 ITam. [Ohio], 124), to the effect that even an ordinary power given by the will to the executor to sell and convey land, that is, a mere “ power to do an act of ordinary sale,” is a personal trust, and that to render a sale under such a power good and valid, the executor must personally assent and act. “ The opinion in this case ” ( Wills v. Cowper), said Cowen, J. (page 442), “ is farther material, as bearing on an argument advanced for the defendant in error, which supposed that a mere power to do an act of ordinary sale, was not the subject of that spiecial trust and confidence which is considered by the law as so strictly personal that it cannot be delegated to another.”

Let us now consider the facts upon which the questions presented by this appeal arise. Upon the 28th of June, 1889, the defendant Washburn made a contract with the firm of R. H. Gibbs & Co., through one Murphy, for the sale of a part of the real estate embraced within the power. ' The contract was in writing and under seal. In it “William T. Washburn, Exr.,” is named as party of the first part, and the instrument is signed “William T. Washburn,. Exr.” It does not anywhere profess to be made on behalf of the estate of the testator, nor in execution of the power conferred by the will. Nor was the executrix in any manner a party to it. Upon the face of the instrument, therefore, it is the naked personal specialty of William T. Washburn, who describes himself as “Exr.,” and who, in specific terms, binds “his hems, administrators and assigns.” The contract was prepared and signed with full knowledge on both sides of Mrs. Richardson’s existence as acting executrix, and the claim that there was a mistake of fact in that respect is wholly without foundation. In fact, the contract was not even prepared by Mr. Washburn, but by a person who drew it at Mr. Murphy’s request, and the vendee’s signature was procured by Murphy in the absence of Washburn. This Mr. Murphy testified that he asked Washburn if it'was not neeessary to have Mrs. Richardson’s signature, and that Washburn replied that one was as good as twenty. Murphy added that he had never asked Mrs. Richardson to sign the contract, because he did not think it was necessary. Whatever mistake there was, was clearly as to the legal effect of the contract as drawn. There certainly was no mistake of fact. But the respondent does not attempt to sustain the judgment as to the reformation of the contract. To do so would, indeed, be a difficult task. For the reformation of a- contract under seal between A and B, so as to make it a contract with 0 also, C. never having heard of it until after it was signed, on the ground of mistake of law, as between A and B, would certainly be a novelty, even in modern jurisprudence.

We might properly rest here and reverse the judgment upon the ■ground that the third finding of fact is unsupported by any evidence of “ mutual mistake and oversight,” and that the first conclusion of law directing a reformation of the contract is, therefore, erroneous. But it is proper to go further and "to consider some of the other •questions which have been presented.

The respondent claims that even if the contract be not reformed in a technical sense, it should be treated as the contract of the non-signing executrix, for the' reason that she consented to its being made, and also ratified it. Apart from the question of fact upon that head, which we will consider hereafter, there are legal difficulties in the respondent’s way. The contract is not that of the estate •of the testator, nor of the executor as one of the donees of the power conferred by the will. As it is under seal, parol proof was inadmissible to show that it was not Mr. Washburn’s individual ■contract. It is entirely well settled that an executory contract under .seal for the purchase of lands, made by the vendee in his own name, ■cannot be enforced as the simple contract of another not mentioned in or a party to the instrument, on proof that the vendee named had oral authority from such other to enter into the contract and .acted as his agent in the transaction. (Briggs v. Partridge, 61 N. Y., 357; Townsend v. Corning, 23 Wend., 135; Townsend v. Hubbard, 4 Hill, 351.) In Spencer v. Field (10 Wend., 87) it was held that even where the agent describes himself as agent or .attorney for his principal, the contract is the contract of the attorney, not the principal.

Now, in the case at bar there can be no doubt that as the power was vested in both the executor and executrix, who had qualified and were alive, both were required to unite in its execution. (1 R. S., 735, § 112 ; Van Boskerck v. Herrich, 65 Barb., 258; Matter of Van Wyck, 1 Barb. Ch., 569; Ogden v. Smith, 2 Paige, 198; Taylor v. Morris, 1 N. Y., 358 ; Berger v. Duff, 4 Johns. Ch., 368; Wilder v. Ranney, 95 N. Y., 12.) Mrs. Richardson has neither united with Mr. Washburn in the execution of the power nor has she contracted to do so. Mr. Washburn did not profess to contract for her, and his contract covered nothing save the execution of the power on his part. Nor could Mrs. Richardson delegate her power.. There was no imperative mandate to sell at once and at the best, obtainable price. Whether the time had come to sell to advantage, whether the price was adequate, whether the terms were satisfactory, were all questions which she was bound to consider independently., The element of discretion was there, and it was her duty as well as, her right to exercise that discretion. In Newton v. Bronson (13 N. Y., 587), it was held that an executor, empowered to sell lands in his discretion, cannot authorize an agent to contract for their sale; that the power is personal and cannot be delegated. It was also held that where such a contract has been executed by the agent without authority, it cannot, in the case of an executor, be ratified by parol. The rule is distinctly laid down that where the principal could not delegate authority to the agent to make the contract, the ratification must be in writing, subscribed by the principal, and in such form as to render the contract valid within the statute as one originally made by him. (See, also, Haydock v. Stow, 40 N. Y., 371.) These views would seem to foreclose; the plaintiff upon the law and to be decisive of this appeal.- We have, however, considered the evidence upon which a parol ratification is sought to be made out, and we find that it is wholly insufficient to warrant the finding of fact upon that head. It is clear that Mrs. Richardson knew nothing about this contract until some days after it was signed. Then Mr. Murphy saw her and said — we give his testimony —“ Good morning ; you know I have sold those lots ? ” She replied, “Yes, I have told Mr. Wood and Mr. Washburn that they could do as they are a mind to in regard to the sale of those lots.”' Then Murphy spoke of the sale being for $10,000, and that he thought he had made a good sale. She smiled and said: “ I told' Mr. Wood and Mr. Washburn.” This was Murphy’s direct testimony, and upon cross-examination he said that what thus took place between himself and Mrs. Richardson did not amount to a conversation. “ It was a passing remark; she was going out.”

This is substantially the testimony upon which the claim of ratification rests. Even that testimony is denied by Mrs. Richardson. But, granting its truthfulness, it amounts to nothing more than a loose declaration of a general and inconclusive character. It was not made with knowledge of all the facts, nor with even a pretense of such knowledge. Mrs. Richardson may have known that the sale was for $10,000, but apart from .that fact she knew nothing of the terms of the contract, nor did she even know the names of the parties to it. The rule is, that a person ratifying an unauthorized act done by another, in his behalf, must have full knowledge of all the essential facts (Wharton on Agency, §§ 65, 614, and cases there cited; Seymour v. Wyckoff., 10 N. Y., 213 ; Rowan v. Hyatt, 45 id., 140 ; Ritch v. Smith, 82 id., 627); and where such act consists in the execution of a written contract, “ it is,” as was said by Peokham, J., in Rowan v. Hyatt (supra), “ essential that a party should know what contract has been made, and, in a case of this sort, substantially how it was made, before his statement or letter can ratify or affirm it.”'

Nor was there any evidence of original authority; that is, of authority to execute this contract on Mrs. Richardson’s behalf. It is true that, prior to the signing of the contract, there had been conferences between Mr. Washburn and Mrs. Richardson with regard'to a sale. She was then told of Murphy’s offer and said that she would like to sell the lots, and that they had better sell them if what Murphy offered was a fair price. These and similar expressions were proved. But there was nothing whatever in these conferences or in the expressions there used which authorized Mr. Wash-burn, ultimately, to act alone or to bind Mrs. Richardson by any contract. The case on both of these heads is weaker than that of Ritch v. Smith (supra). There the court intimated that there were circumstances sufficient to excite a suspicion that there was authority before, or information after, the agent’s act, yet the conclusion was that neither original authority nor subsequent intelligent ratification was made out. That is also our conclusion in the present case. Whatever Mrs. Richardson knew about either a proposed or an actual sale, she knew nothing as to its consummation, never authorized the contract which was signed, and never intelligently ratified it after it was signed.

There are other and serious questions presented in this appeal which, in the views already taken of the case, it will be unnecessary to consider. We may say, however, that the judgment for damages against the estate is not warranted even by the findings which were made at Special Term. The contract was not upon behalf of the estate, nor by the executor as such. Even if Mrs. Richardson had signed the contract (with Mr. Washburn), that would not have bound the estate. It would still have been the contract of the donees of the power, and not of the executor and executrix as such. Clearly, the estate cannot be mulcted merely because the donees of the power fail to carry out their contract for the sale of real estate made in execution of the power.

The judgment should be reversed and a new trial ordered, with costs to the appellants to abide the event.

Yan Brunt, P. J., concurred.

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


text:
    GAETANO AINIS, Respondent, v. MARSHALL AYRES, as Assignee for the Benefit of Creditors of SAWYER, WALLACE & CO., Appellant.

      Sales — stoppage in transitu — acceptances by an agent, not a payment although the bills of lading are surrendered by the vendor.

    One Ainis, a merchant in Sicily, sold brimstone to a firm in New York. The firm wrote Ainis in regard to payment: “We beg to say we open credit in reimbursement of purchases with Messrs. Fred Huth & Co., London, Credit Lyonnais, London Branch, our house, Mr. L. W. Sawyer, London." Ainis drew on Sawyer, who represented the firm in London, drafts, which, with the bills of lading attached, were forwarded to Sawyer, who accepted them, he then having sufficient money of the firm to pay the drafts. Sawyer sent the bills of lading to the firm in New York and charged them upon his books, as agent, with the amount of the drafts.
    Before the drafts matured or the goods arrived in New York the firm failed and made a general assignment to one Ayres. The drafts subsequently fell due and were not paid.
    In an action by Ainis against the assignee, both claiming the goods:

      Meld, that Ainis had not, by surrendering the bills of lading for the acceptances of Sawyer, lost his right of stoppage in transitu.

      That tlie acceptances of Sawyer, described by the firm as of '■ our house,” were, in effect, the acceptances of the firm and must be regarded as having been taken by Ainis as collateral security, and not in payment of the goods.
    That the delivery of the bills of lading by Ainis to Sawyer was a delivery to the agent for the firm, his principal; and as no rights of third persons had intervened, by their transfer to a bona fide holder before the goods had reached New York, Ainis’ right to stop the goods in transit was not affected.
    Appeal by the defendant Marshall Ayres, as assignee for the benefit of the creditors of Sawyer, Wallace & Co., from a judgment' of the Supreme Court, entered in the office of the clerk of the city and county of New York, in favor of the plaintiff for $6,794.29, with interest amounting to $138.24, after a tidal by the court without a jury at the New York Circuit.

      Michael H. Ocvrdozo, for the appellant.

      -Robert L. Harrison, for the respondent.
   Barrett, J.:

The question here is, whether the right of stoppage m transitu was lost by the plaintiff’s receipt of acceptances given by the vendee’s agent.. The facts are simple and undisputed. In July and August, 1890, the plaintiff, who 'is a merchant at Messina, in Sicily, sold (in two lots of 200 tonseach)-400 tons of brimstone to the firm of Sawyer, Wallace & Co., of this city, at agreed prices. The terms of sale were embodied in a letter from Sawyer, Wallace & Go. to the plaintiff, which reads as follows:

Concerning the terms under which we purchase brimstone, we beg to say that we open credit in reimbursement of purchases with Messrs. Fred Huth & Co., London, Credit Lyonnais, London Branch, our house, Mr. L.W. Sawyer, London, and, finally, if the reimbursement should be on Paris, with Messrs. Marcuard, Krauss & Go., the Credit Lyonnais of that city, instructing them to honor your draft at 90d. sight, documents attached.”

The brimstone was duly shipped to New York, and the plaintiff drew his drafts upon Sawyer, of London, the person referred to in the above letter as “ our house, Mr. L. W. Sawyer, London,” for the agreed prices. These drafts were .forwarded to Sawyer, in London (together with the bills of lading), and were duly accepted by him. Sawyer was tlie agent and legal representative in London of Sawyer, Wallace & Co. He was not a banker, but he made collections in large amounts on the other side, and remitted such, collections to that house. The credit which he afforded his principals was based partly upon such collections and partly upon moneys deposited by them with him. At the time of his acceptance of the drafts in question he was in funds due or belonging to Sawyer, Wallace & Co. to the amount of many thousands of jjounds. Upon the receipt of the documents, Sawyer sent' the bills of lading to his principals in New York and charged them in his agency account with the amount of the drafts. Before the drafts matured, and before the arrival of the goods in New York, Sawyer, Wallace & Co. failed and made a general assignment to the defendant. Upon the arrival of the goods in New York both parties claimed them — the defendant, as the assignee of Sawyer, Wallace & Co., and the plaintiff by virtue of his claim to stop them in tra/nsitu. The goods were sold amicably and the proceeds deposited in a trust company to abide the result of this litigation. Sawyer’s drafts have since been dishonored. The learned judge at Special Term gave the plaintiff judgment, holding that the right of stoppage m transitu was not lost by the acceptance of these drafts.

We may premise by saying that if these acceptances defeated the plaintiff’s right of stoppage m transitu, it was certainly not because of the rule, misapplied by the appellant, that such right is lost where bills of lading have been indorsed by the vendee to a bona fide transferree for a valuable consideration (as laid down in Becker v. Hallgarten, 86 N. Y., 167, and all the earlier cases), but solely because the plaintiff’s acceptance of Sawyer’s draft was an absolute payment for the goods. We may further premise that if the latter contention should be sustained, as matter of fact, then the vendees were wholly discharged from all liability and the plaintiff has not only no case as to the goods, but no claim against the assigned estate. The defendant would thus have us presume that, in accepting Sawyer’s draft, the plaintiff intended to discharge the vendees, to abandon his lien upon the goods and to rely solely upon the credit of the vendee’s agent. This would be a violent presumption especially in view of the fact that Sawyer is spoken of in the letter above quoted as “our house,” that is, our, Sawyer, Wallace & Co’s. London house, in other words, ourselves. And that presumption would be as unreasonable here as that referred to in Deseadillas v. Harris (8 Greenl., 247) hereafter quoted. It is perfectly well settled that the vendor’s right of stoppage in transitu is not lost by his having received the acceptances of the vendee, even though he may have negotiated the bills so that they are outstanding in third hands unmatured. (Benjamin on Sales [4th Am. ed.], § 835.) Thus, in Feise v. Wray (3 East, 93), the bankrupt’s acceptances were treated as part payment so far as something might be realized on them from his estate. To that extent only it was said to reduce the vendor’s equitable lien. This case was referred to in Edwards v. Brewer (2 Mees. & Weis., 374), Parke, B. saying:

“ It is settled by the case of Feise v. Wray, that by an acceptance of bills the vendor’s right to stop in transitu is not taken away.” In Miles v. Gorton (2 Cr. & Mees., 504), the rule was extended to a case where the vendor had not only accepted the vendee’s bill, but had negotiated it. The English rule has been generally followed in this country. Thus in Clapp v. Sohmer (55 Iowa, 273), the vendor had accepted the vendee’s note. It was held that the vendor was not concluded, the court • saying that a “ promissory note cannot be regarded as payment unless it has l>een expressly reeewed as such.”' The case of Newhall v. Vargas (13 Maine [Shepley, vol. 1], 103), goes still further and is entirely analogous to the case at bar. There the master of the vessel upon which the goods were shipped was the agent of the vendee. He drew bills on the vendee payable to the vendor for the amount due on the purchase. It was held that the acceptance of these bills by the vendor did not defeat his right as against the vendee. “The master,” says Chief Justice Weston, “ in drawing the bills on the owner, was acting on account of the latter. * * * It was the usual mode of doing business of this sort. And although, by the form of the bills, the master may have made himself personally liable, there is no reason to suppose that his security was relied upon by Yargas (the vendor) or that bv accepting it he .waived other remedies (citing Descadillas v. Harris, supra). The master was not acting for himself. He was the mere agent of the owner.”

In the case there cited (Descadillas v. Harris) it was held that the presumption of payment in receiving a negotiable note “ is liable to be rebutted, by proof of facts or circumstances inconsistent with it,” and the court, in reviewing the facts upon which a claim somewhat analogous to the present was made, aptly inquired: “ Is it probable, or rather is it to be presumed, that they (the plaintiffs) intended to discharge the most responsible security and rely solely upon the most irresponsible ; to decline the hypothecation, absolve the owner from his personal liability and trust wholly to the solvency of the master ? ”

Bell v. Moss (5 Whar., 203), is still nearer in point to the present case. There the vendor received drafts on third persons. It is true that these drafts were not accepted by the third persons, but the liability of the third persons was fully discussed and the rule laid down that such acceptances wrere naturally, and, in the absence of an express agreement to the contrary, nothing more than collateral security for the primary debtor’s obligation. “ Here,” said Chief Justice Gibson, “ the consignees were the vendees and primary debtors, and what did they pledge as a guaranty ? The acceptances of De Lizardi & Co.; and no principle is surer than that a creditor may press all his securities at the same time.” This learned judge also stated that “ the giving of the buyer’s own note or bill, which though it operates an extension of the credit, extinguishes not the original contract; as well as by payment in the bills of a third person which is not absolute satisfaction, unless it were declared so by the terms of the bargavnP He summed up this branch of the case with these suggestive remarks: “ It would, indeed, startle the commercial community to say, that where the consignor has collateral means of payment, uncertain as it must be in its results, he shall not press a lien growing incidentally out of the consignee’s direct liability.”

That the acceptance of Sawyer was a mere collateral security for the primary obligation of the vendees is apparent from all the circumstances of this case. There is not a suggestion in the correspondence or documents that the unsecured acceptance of this agent was to be taken as a substitute for the primary obligation of his principals, secured as that was by the vendor’s lien. Everything, in fact, points the other way. Not only is Sawyer spoken of as the vendee’s London house, but the arrangement with him and others is spoken of as a credit.” This is a term perfectly well understood in commercial circles. It implies security for the meeting of his obligations by tbe holder of the credit, and it is not intended, ordinarily, as a substitute for these obligations. “A credit with a banker,” said Chief Justice Gibson in the case last cited, “is not payment, but a means of payment more or less secure, according to the solidity of the depositary; and the greater or less certainty of the security cannot affect the question of its character; it is but a security still.”

Here, however, Sawyer was not even a banker, but a merchant representing the vendees and accepting for them and as their agent, though not specifying the agency in terms upon the face of the drafts. The distinction between the facts of this case and those under consideration in Gibson v. Tobey (46 N. Y., 637); Hall v. Stevens (116 id., 201) and Whitbeck v. Van Ness (11 Johns., 410) is so wide as to call for but a passing comment. These were cases of executed sales, and the notes or drafts of third persons were taken iii payment for the goods sold and delivered, and were so taken at the time of delivery. The distinction between such cases and the cases of executory contracts, where the goods have not yet reached the vendee and the right of stoppage in transitu is asserted, is pointed out by Spencer, J., in Whitbeck v. Van Ness (supra). That learned judge comments upon Owenson v. Morse (7 Term R., 60) and says that that case will be found, on examination, to turn “ on the right to stop goods in transitu. Owenson purchased from Morse some plate and paid for it in the notes of a third person. Morse retained the plate to have Owenson’s arms engraved at Morse’s expense. In the interim the maker of the notes failed and on refusal to deliver the plate, Owenson brought trover, and failed; the court holding that the bargain was not so perfected but that the seller might stop the goods in transitu, ” That learned judge also referred to Roget v. Merritt (2 Caines, 120), where he says: “Ve adopted the same principle that, in an executory contract, the consideration having failed, the vendor had a right to withhold a delivery of the goods.”

The delivery of the bills of lading to Sawyer did not affect this question. The general rule is not disputed, that the delivery of the indicia of title is equivalent to the delivery of goods. “ But,” as Mr. Benjamin says, at section 1211 (we are still quoting from the fourth American edition of his work on Sales), “ though the vendor’s lien is thus divested by reason of the complete delivery of the indicia of property, lie may, if the goods have not yet reached the actual possession of the buyer, and if no third person has acquired rights by obtaining a transfer of the bill of lading from the buyer, intercept the goods in the event of the buyer’s insolvency before payment, by the exercise of the right of stoppage in transitm. These principles in relation to the effect of a bill of lading were first conclusively established in the great leading case of Biehbmnow v. Mason, on the authority of which very numerous decisions have since been made, and will be found collected in Smith’s Leading Cases. On this mode of delivery the law is free from doubt.”

In the case at bar there' was no transfer of the bills of lading from the buyers, and no third person ever acquired any right of transfer from them. The transfer to Sawyer was simply a transfer to his principals, the buyers, and from that point on there was no further transfer. The question of payment as between Sawyer, Wallace & Co., and their agent is entirely immaterial. That is simply a question of debit and credit on the agency books. Such cases, therefore, as Crocker v. Whitney (11 N. Y. 161). and Briggs v. The Central National Bank (89 id., 182) have no application to the underlying question here, and it is idle to talk of payment for the brimstone having been made by Sawyer, Wallace & Co , to Sawyer before the execution of their assignment. That firm received the bills of lading, but never paid the plaintiffs, and failed before the actual arrival of the goods.

We think it entirely clear that thus the plaintiff’s equitable right to stoppage in transitu, a right so favored in the law (Northey v. Field, 2 Esp., 613), was not lost, and that he is entitled to recover upon two distinct grounds: First, that the acceptances of Sawyer were, in substance, the acceptances of the vendees; second, that even if such acceptances were treated as the acceptances of a third person, they were not, as matter of fact, taken in absolute payment for the goods.

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

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

Judgment affirmed, with costs.


author:
Daniels, J.:
      Ingraham, J.

text:
    JOHN D. WING and Another, Respondents, v. AMOS ROGERS, Appellant.

      Surety — his contract strictly construed — an undericücing, to secure t7ie prospective judgment, given as a condition of the granting of a stay on an application to take testimony on commission.

    Tiie defendants in certain actions applied to the court for a stay of proceedings in order to obtain time to take by commission the testimony of a witness in a foreign country. The court granted the application staying proceedings until the return of the commission upon condition that the defendants gave an undertaking conditioned to pay any judgments recovered in the actions. The security was given, in form, for the absolute payment of any judgments so recovered. The commission was issued to the foreign country; the witness wrote out his answers to the interrogatories, hut never verified them before the commissioner, and the latter never returned the commission. The witness returned to this State before the trial of the actions, and was called as a witness by the defendant upon the trial thereof. Before the trial the plaintiffs in the actions moved for, and obtained, a vacation of the stay.
    In an action against the surety upon the undertaking:

      Held, that it was the evident intention, taking the undertaking and the order granting the stay together, that the parties to the undertaking should only he hound in the event that the defendants in the actions enjoyed a stay until the commission was returned.
    That the failure to return the commission, the vacation of the stay and the return of the witness to this State, presented a state of facts entirely different from those to which the surety had agreed in the undertaking, and that hence he was not liable. That there was no lack of power in the plaintiffs in this action to have procured, or in the commissioner to have made, a return of the commission; and that, having failed in this, the event had not occurred upon which the surety’s liability was predicated. (Ingraham, J., dissenting.)
    Appeal by tlie defendant Amos Rogers from a judgment of tbe Supreme Court, entered in the office of the clerk of the county of New York on the 18th day of May, 1891, upon a verdict for the plaintiffs for $10,521.69, after a trial at the New York Circuit before the court and a jury.

      JR. Floyd Olárice, for the appellant.

      John W. Houston, for the respondents.
   Daniels, J.:

The verdict was recovered for the sum of $10,521.69, upon an undertaking given by the defendant to pay any judgments that might be recovered in three different actions brought by the plaintiffs against Rowland N. Hazard, two of which had previously been consolidated. In those actions the defendants obtained leave to issue a commission to Carlos Walker Martinez or to Jorge Hunches, residing at Santiago, in Chili, to take the deposition of Jared E. Lewis as a witness on behalf of the defendant. The defendant applied to the court for a stay of proceedings until the return of the commission. And after directing the commission to be issued, this stay was ordered in case the defendant should file an undertaking, with one or more sureties, conditioned to pay any judgment or judgments which might be recovered against him in the three actions or in either of them. An undertaking was presented, in compliance with this order, subscribed by the defendant, but the attorneys for the plaintiffs in the actions were unwilling to receive it, and refused to accept it because they deemed the responsibility of the defendant to be inadequate by way of this security. And while this disagreement existed, and for the purpose of arranging it, the attorneys for the plaintiffs consented to accept the undertaking of the American Surety Company for the sum of $7,500, in part conrpliance with the order, and an undertaking subscribed by the defendant as surety .for the residue. And these undertakings were given pursuant to this arrangement, and, in that manner; the conditions prescribed by the order upon which the stay was directed were complied with. The commission was then sent to the commissioners, one of whom passed it over to the witness to write out his answers to the interrogatories. And that was done by him, and the commission with the answers returned to the commissioner. Rut the witness never appeared before the commissioner to verify the answers by his oath. And the commission, accordingly, was not returned. The witness remained in Santiago from early in December, 1888, until the middle of September, 1889, and in May, 1890, arrived in the city of New York, and was examined as a witness upon the trial. Prior to the trial of the action, and in August, 1890, the plaintiffs moved to vacate the stay in this manner provided for by the order directing the commission which was entered on the 7th of December, 1888. And an order was entered vacating the stay, and it was after that time that the plaintiffs brought this action to trial. Upon thid state of facts this action was brought against the defendant as surety in tlie undertaking subscribed by him to recover so muck of the judgments as would not be satisfied by tlie obligation of the American Surety Company. And it was for that residue that the verdict was directed against the defendant.

In his behalf it has been contended that no legal liability had arisen against him under the terms of the undertaking. This undertaking is as follows:

“Whereas, Rowland N. Hazard, the defendant in the above-entitled actions, on December 7; 1888, obtained from this court an order in both of said actions staying the trials thereof until a return of a commission issued to take testimony of Jared E. Lewis, as a witness for the defendant, provided that the said defendant should give an undertaking, with sufficient sureties, conditioned that said defendant will pay any judgments that may be recovered against him in 'these actions ; and,

“ Whereas, the defendant has given an undertaking, executed by the American Surety Company, conditioned to pay any judgments that may be recovered in these actions, or either of them, up to the amount of $7,500; and,

“ Whereas, Amos Rogers has given a bond for any amount which may be recovered against the defendant, which bond, upon the execution hereof, is to be considered canceled and null and void.

“ Whereas, the plaintiffs have stipulated to accept as sufficient undertaking by the American Surety Company and this undertaking:

“ Now, therefore, in consideration of the premises and one dollar to me in hand paid, I, Amos Rogers, o± No. 45 Broadway, New Tork city, do, pursuant to the above order and stipulation, undertake that the said Rowland N. Hazard will pay any judgments that may be recovered against him in these actions, or either of them, over and above the sum of $7,500, secured to be paid by the American Surety Company, as aforesaid.

“If being understood that my'liability hereunder is limited to-the amount of the said judgment or judgments, with interest, less $7,500.

“ In witness whereof I have hereunto set my hand and seal,, this 12th day of April, 1889.

“AMOS ROGERS, [seal.]”

And by its recital it appears to have been given to secure to the defendant in the other actions this stay of proceedings until the return of the commission. And, further, to exhibit that to have been the design and purpose of the undertaking, the order containing the provision for the stay of proceedings mentioned in this recital is also entitled to be considered, for they are, both together, necessary to exhibit the object, by way of consideration, as well as the extent of the obligation entered into by the defendant. (Sonneborn v. Libbey, 102 N. Y., 539, 550.)

This order is in these words: “ Upon reading and filing the order to show cause, the affidavit of Rowland N. Hazard, on which said order to show- cause was granted, and due proof of service of said order, and an affidavit upon the attorneys for the plaintiffs, and the affidavits of Paul D. Cravath and Julius M. Ferguson hereto annexed, and upon all the papers and proceedings herein, and after-hearing Mr. Lockwood, of counsel for defendant,- in support of said motion, and Mr. Cravath, of counsel for plaintiff, in opposition thereto,

“Now, on motion of Crane, Lockwood & Fowler, attorneys for the defendant, it is

“ Ordered, that this motion for a commission to take the testimony of Jared E. Lewis, as a witness for the defendant, be and it hereby is granted, and that a commission issue in the ordinary form in both of the above-entitled actions to Carlos Walker Martinez, or to Jorge Hun cues, counselors-at-law, at Santiago, Chili, at South America, to examine, under oath, upon interrogatories - and cross-interrogatories to be annexed to said commission, Jared E Lewis as a witness on behalf of defendant at said Santiago, Chili, in South America, and that plaintiffs be at liberty to join in said commision by preparing and annexing thereto cross-interrogatories.

“And it is further ordered that the trial of these actions be stayed until the return of said commission, provided defendant shall, within ten days from the date of this order, give and duly file an undertaking with one or more sureties, to be approved by the court, conditioned that said defendant will pay any judgment or judgments that may be recovered > against him in the above-entitled actions or either of them; and if defendant shall fail to justify to the satisfaction of the court upon notice of exception from plaintiff’s attorney, then this stay shall be vacated without further order.”

And it is clearly to be inferred, from the order and the undertaking considered together, although the latter expresses an absolute obligation to pay the judgments, that this obligation was intended to be, and was, in fact, conditional upon the defendant in the other actions having a stay of proceedings until the- return of the commission. That was the advantage secured to that defendant by the order, and it was the foundation or consideration on which this defendant became a party as a surety to this undertaking. It was, therefore, conditional in its effect, binding the defendant to the payment of these judgments only in case the defendant in the other actions was secured this stay until the return of the commission. That was not only the language, but the effect, and the entire effect, of the obligation which the defendant entered into. And before an action for the recovery of this amount of the judgments could be maintained against him, it was essential that this condition should appear to have been observed. (Oakley v. Morton, 1 Kern., 25.)

If its performance had been defeated by any act of the defendant, that would have avoided the effect of the condition. But there was no act, either upon his part or on the part of the defendant in the original actions for which this surety became responsible, which prevented the return of the commission. And compliance with the terms of the order as to the stay was, therefore, not dispensed with, either by anything which was held in Weeks v. Little (89 N. Y., 566) or Hudson Canal Company v. Pennsylvania Coal Company (8 Wall., 276).

The undertaking, construed with the order, provided for the payment of this excess of the judgments by the defendant only in case the defendant in the original actions was secured this stay of proceedings until the return of the commission. There was no obligation, either expressed or implied, by any language contained in the order or the undertaking, imposed upon the defendant to pay in case the order staying proceedings should be vacated, or the witness named in it should return to the city of New York. Each was an entirely different state of facts from those upon which the surety became bound. And it is no answer to the objection which has been made that it could have been no benefit to' the surety, or the defendant in the other suits, that the stay of proceedings should be prolonged beyond the time when the order was made vacating it. For the contract entered into by the undertaking was not to become operative by the vacation of the order, or the return of the witness, but the sole and only condition upon which its validity rested was, that the stay should continue until the return of the commission. That was the obligation, and the only obligation into which the defendant entered by this undertaking.

It was not absolutely necessary that the commission should be fully executed before it was returned, but it was competent for the commissioner to return it when the witness failed to appear before him and verify the answers which he had written to the interrogatories. And the plaintiffs in the action, as well as in the other suits, were entitled to have the commission returned in case of a failure on the part of the commissioner through the absence of the witness to complete its execution. There was no want of power, therefore, on the part of the plaintiffs to comply literally, as well as substantially, with this condition on which the liability of the defendant had been made to depend. They failed to do that. And having so failed, and the commission never having been returned, the event has not arisen on which the defendant undertook to pay this amount of the judgments recovered against the defendant in the other suits. But by the judgment which has been recovered in this suit, the defendant has been held liable upon a state of facts differing from those on which his liability was made to depend. He had agreed to become liable in one event only, and that event has not yet transpired. And for that reason he was not liable in this action upon his undertaking, and a verdict instead of being directed against him should have been directed in his favor. This seems to be the fair effect of Collins v. Ball (31 Hun, 181), and of Hemmingway v. Poucher (98 N. Y., 281). The undertaking construed with the order was a security to the plaintiffs for the payment of this residue of their judgments only when the commission should be returned. It never has been returned, and no right of action, consequently, accrued to them, and the judgment should be reversed and a new trial ordered, with costs to the defendant to abide the event.

Van Brunt, P. J., concurred.

Ingraham, J.

(dissenting):

The bond or undertaking upon which plaintiff seeks to recover in this action was given to make effectual a stay of the trial of certain actions until the return of a commission issued under the order of the court in the actions. The bond recites the order; the provision for the stay until the return of the commission issued to take the testimony of the witness named, and then provides as follows: “ I, Amos Rogers, of No. 45 Broadway, New York city, do, pursuant to the above order and stipulation, undertake that the said Rowland N. Hazard will pay any judgments that may be recovered against him in these actions, or either of them, over and above the sum of $7,500 secured to be paid by the American Surety Company as aforesaid.”

And it is to recover the amount of these judgments, subsequently obtained against Hazard over and above the sum of $7,500, that this action is brought. The order of the court recited in this bond or undertaking provides for the issuing of a commission, and then contains a provision that the trial of the action be stayed until the return of the commission, provided the defendant shall, within ten days, file an undertaking to be approved and conditioned that said defendant will pay any judgment or judgments that may be recovered against him in the above entitled actions or either of them.

The order granting the stay having been recited in the bond, and the bond having been given in pursuance of the order, we must construe the bond and the order, so far as they throw light upon each other, and thus arrive at the intention of the court and of the parties (Sonneborn v. Libbey, 102 N. Y., 550); and construing them together it seems to me that the intention of the court and the parties is obvious.

The order for the commission was entered in pursuance of sections 887 and 888 of the Code, and it was to obtain the deposition of a witness not within the State, to be used by the defeudant as testimony upon the trial on the issues raised by the pleadings. The Code provides for the issuing of such commission, and the court is given power to stay the trial of the action until the return of such commission.

The sole object for such commission is to obtain the testimony of a witness who is without the State and whose presence at the trial cannot be enforced by subpoena, and it is provided by section 910 of the Code, that where it appears, by affidavit, that the personal attendance of the witness upon the trial could have been procured with due diligence, an order for the suppression of the déposition may be made by the court upon the application by the party aggrieved upon notice to the adverse party.

Considering the undertaking and the order, together with these provisions of the Code, it seems to me that the intention of the court and the parties was to procure the testimony of the witness whose deposition was to be taken. To do that it was necessary, as he was then without the State, to issue a commission to take his deposition; and it was also necessary, in order to have the benefit of the witness’ testimony upon the trial, that the trial of the action should be stayed until the return of the commission or the return of the witness to the State.

The cotfrt granting the stay required as a condition that the defendant in that action give a bond to secure the payment of any judgment that the plaintiff should obtain against him, and that bond was given. The commission was issued and the stay became operative. The object of that stay, however, was simply to make the order for the commission, effective for the purpose for which it was given, viz., to procure the testimony of the proposed witness for use at the trial. There was no express condition in the bond that the stay should continue until the commission was returned; and as soon as the witness returned within this State, with intention of remaining here, so that his attendance at the trial could be procured, the commission issued. to take his testimony became inoperative. It could not then be executed and returned, because the witness was not at the place to which it had been issued to execute it. The return of the commission, therefore, became impossible. By the stay the defendant in the action had obtained what he desired. He was in a position to have the benefit of the testimony of the witness k on the trial of the action.

The witness was within the jurisdiction of tlie'court, subject to its subpoena, and the defendant had the opportunity of obtaining his testimony upon the trial of the action.

The return of the commission became impossible, but if it had been possible, it would have been unavailing, because, under section 910 of the Code, the court would have been justified in suppressing the commission upon evidence that the witness had returned and could be produced on the trial.

The stay that was procured by the giving of the bond was effectual until the return of the witness to the jurisdiction of this court; and upon such return the advantage to the defendant in the actions had been gained just as much as if the commission had been returned, and the consideration for the giving of the bond or undertaking was complete.

The subsequent vacation of the stay had no more effect than if it had been vacated' by the return of the commission, so far as the liability of the defendant was affected.

I think, therefore, the court below was right in directing a verdict for the plaintiff, .and the judgment should be affirmed, with costs.

Judgment reversed and new trial ordered, with costs^to appellant to abide event.