author: MbewiN, J.: HardiN, P. J.:

text:
    JOHN E. HILES, Plaintiff, v. WILLIAM R. FISHER and MARIA J. FISHER, Defendants.

      Deed to husbamd and wife — mortgage by the husband alone — married women’s acts.

    Under a deed to a husband and wife, as such, the husband and wife take as tenants by the entirety, and upon the death of either the survivor takes the whole estate; "and the rule at common law that, in such a case, the husband has the control and use of the property during the joint lives was not changed by the married women’s acts, chapter 200 of the Laws of 1848, as amended by chapter 875 of the Laws of 1849, and chapter 90 of the Laws of 1860.
    As an incident of such control of the property by the husband, a mortgage thereof made by him alone, during the joint lives, is operative so far as to convey an estate during the joint lives of the husband and wife and the fee in case the husband survives the wife; and this is so, even though the wife furnished the entire purchase-price of the property, provided she consented to the form of the deed to her husband and herself.
    SubMissioN of controversy upon an agreed statement of facts under section 1279 of tbe Code of Civil Procedure.
    The submission was filed in Tompkins county October 10, 1892, and the following are substantially the facts as therein stated:
    The defendants are and for the past thirty years and upwards have been husband and wife. On or about the 22d of March, 1866, the defendants, by a deed to them as husband and wife, took title to a farm of about forty-four acres in the town of Dryden, Tompkins county, N. Y., which they have ever since occupied and possessed as their home under said deed, with no other title. This deed runs to “William E. Fisher of the town, county and State aforesaid, and Maria J. Fisher, his wife,” and the consideration therein stated is $3,000. It was duly recorded on the 9th of May, 1866. The purchase-price was wholly paid by the wife, who, however, consented to the form of the deed as taken by them.
    On or about March 31, 1885, the defendant, William E. Fisher, borrowed of the plaintiff $1,400, for which he and his wife gave their promissory note. On or about February 20,1886, William E., to secure the payment of this debt to plaintiff and other small amounts of borrowed money amounting, then, altogether to $1,550, executed and delivered to one Goodrich, for plaintiff, a mortgage in the usual form granting and conveying the said forty-four acres and conditioned for the payment of $1,550, one-half in one year and balance in two years, with interest at five per cent annually. This mortgage was dated and acknowledged February 20, 1886, and was immediately assigned to plaintiff. It was recorded August 5, 1890. Fisher, out of the money which he borrowed of plaintiff, used $1,000 in part payment for thirty-five acres of land in the same town, the title to which he had taken in his own name. At the time the mortgage was given the plaintiff knew that the wife’s money paid for the forty-four acres and that she refused to sign the mortgage, but he supposed that William E. Fisher held the title and the wife had only her dower right therein, and he, therefore, said that the mortgage was good enough without her signature and so took it, and he told the defendants that he did not calculate that William E. should ever pay the mortgage; that he calculated to give it to him by his will and all he wanted was the interest while he lived. The description in the mortgage was copied from the deed, which was present when the mortgage was executed and delivered.
    On the 3d of September, 1890, William E. Fisher conveyed to Maria J. Fisher both of said parcels of land by quit-claim deed, recorded that day. Default was made in the payment of interest on the mortgage and it was duly foreclosed by statutory foreclosure, and on the sale thereunder, which occurred February 6, 1892, the premises were bid in by the plaintiff for the sum of $500, the amount then unpaid on the mortgage being $1,863.37 besides the expense of foreclosure, thereby vesting in plaintiff the entire fee so far as the mortgagor could lawfully have conveyed at the date of the mortgage under the same circumstances. Notice of the foreclosure was duly served on both defendants.
    Mrs. Fisher thereafter and before the sale commenced an action in the Supreme Court against the plaintiff and said Goodrich and her husband, asking that the mortgage be declared void, as to her, and be set aside as a cloud upon her title, and that the foreclosure of the mortgage be restrained. A temporary injunction was obtained, but was vacated by the court upon the papers upon whicli it was granted. On the foreclosure sale Mrs. Fisher gave notice of her claims. After the sale the plaintiff duly demanded possession of each of the defendants and they severally refused to deliver the same and now withhold it.
    Upon these facts the plaintiff claims the right to recover the possession of the premises, with the right to hold the same during the joint lives of the husband and wife and full title to the same in case the husband survives the wife. The defendant, Mrs. Fisher, claims that the mortgage not being signed by both is void and that now, Mr. Fisher’s interest having been conveyed to her, she is the absolute owner; that by reason of her having paid for the property she is the equitable owner of the whole; that in any event she is entitled to the possession during the joint lives of herself and husband and' to the fee in case she survives.

      George E. Good/rich, and M. M. Waters, for the plaintiff.

      Smith db Eio/cmson, for the defendants.
   MbewiN, J.:

This is, in substance, an action by the plaintiff to recover the possession of certain real estate, and to have the nature and extent of his interest therein declared. A defense is inter’posed both in a legal and equitable aspect. The plaintiff’s rights depend upon the extent of the power of the mortgagor to convey or transfer his interest in the property.

By the case of Bertles v. Nunan (92 N. Y., 152) it is settled that, under a deed like the one here to the defendants, the husband and wife take as tenants by the entirety, and that upon the death of either the survivor takes the whole estate. This is by virtue of the rule at common law, and it was conceded in the Bertles’ ease that, under that law, the husband had the control and use of the property during the joint lives. That was one of the characteristics of the estate, and it necessarily continues to be such, unless it has been eliminated by the married woman’s acts so-called. The defendants place reliance upon chapter 200 of the Laws of 1848 and chapter 90 of the Laws of 1860. The trouble with the defendants’ argument on this line is, that the Court of Appeals, in the Bertles’ case, held that those acts do not affect the existence of the estate by the entirety, and if they do not affect the estate itself, they do not affect the incidents or characteristics, unless there is some special provision that may apply to the latter and not to the former. There is no such special provision. In Goelet v. Gori (31 Barb., 314) it was held that the act of 1848, as amended in 1849 (chap. 375), did not affect the right of the husband under such an estate to the entire use, and a similar doctrine was held in Farmers and Mechanics' National Bank v. Gregory (49 Barb., 155), having reference to the act of 1860, as well as to the acts of 1848-9. In that case it is said by Judge JohNson : “Neither can sell without the consent of the other, and the survivor takes the whole. But during the life of both, the husband is entitled to possession of the entire estate, and to the rents and profits, and may even alien the wife’s interest during their joint lives. And the estate will, it seems, be in such alienee, subject to the right of the wife or her heirs, to enter and enjoy the same at the death of the husband, freed and discharged from all his debts and engagements.” In Barber v. Harris (15 Wend., 615) it is said of such an estate by NelsoN, Ch. J., that “ during the life of the husband, he undoubtedly has the absolute control of the estate of the wife and can convey or mortgage it for that period.” This right to mortgage is recognized in Snyder v. Sponable (1 Hill, 569). In Beach v. Hollister (3 Hun, 519) it was held that the husband had the absolute control of the estate of his wife during his life, and might mortgage, lease and convey his interest, and that it was subject to sale on execution. In Coleman v. Bresnaham (54 Hun, 621) a like rule was held. In Demby v. City of Kingston (60 Hun, 294) it seems to have been necessarily held that the husband was entitled to the use during the life of both parties. This case was affirmed in the Court of Appeals without •opinion. (133 N. Y., 538.)

The ease of O’ Connor v. McMahon (54 Hun, 66) is pressed upon ■our attention by the defendant’s counsel. There it was held that where a conveyance is made to a husband and wife as grantees, and they subsequently separate, the husband voluntarily leaving the wife in the possession and control of the premises, the wife is entitled to the possession as against a subsequent grantee of the husband alone. Force was given to the circumstance that the husband had voluntarily yielded to the wife the possession and control, and it was said that the husband could then do no act which would deprive her of the enjoyment of such possession. In the same court, however, in & subsequent case (Grosser v. City of Rochester, 60 Hun, 380), it was said, with apparent unanimity, that, under the' doctrine of Bertles v. Nunan, the husband, during the joint lives of the husband and wife, “has the right to the exclusive benefit, use, possession and •control of the land, and may take all the profits thereof; and' may mortgage or convey an estate to continue during the joint lives; but he may not make any disposition of the land that should prejudice the right of the wife in case she would survive him.”

In Gifford v. Rising (55 Hun, 61), where a creditor’s bill was brought to reach the interest of the judgment-debtor in an annuity created by the will of his father, charged upon real estate, and payable semi-annually to the judgment-debtor and his wife for their support, and that of their family during their lives, it was held that, during the joint lives of the annuitants, the husband was entitled to the entire annuity, and the whole was liable for his debts. In Ward v. Ward (14 Ch. Hiv., 506), it was held that, in such a case, the wife had no equity to a settlement. (See 2 Kent’s Com., 141, marginal paging.)

In the light of the foregoing authorities it must, I think, be held that the mortgage in question was operative, at least so far as to convey an estate during the joint lives of the husband and wife.

The farther question is what operation it had upon the fee. In Beach v. Hollister, above referred to, it is said that a purchaser upon execution sale against the husband becomes, in case the hus. band survives the wife, the absolute owner of the whole estate-This proposition is supported by the case of Ames v. Norman (4 Sneed, 683; 70 Am. Dec., 269), and would apply with equal force to the case of a purchaser upon foreclosure of a mortgage that, in form, conveyed all the interest of the mortgagor. So, in 1 "Wash-burn Real Property ([5th ed.], 707, chap. 13, § 6, sub. 3), it is laid down that “ if the husband convey the entire estate during coverture and dies, his conveyance will not have affected her (the wife’s) rights of survivorship to the entire estate. But if, ip such case, the husband survive, his conveyance becomes as effective to pass the whole estate as it would have been had the husband been sole seized when he conveyed.” A similar view is .taken in Freeman on Cotenancy (§§ 73, 74). In Bram v. Bram (34 Hun, 487) the idea seems to be recognized that a conveyance from the wife alone would, in case she survived her husband, operate to convey the title.

In some cases it is said that neither can alien any part of the estate without the consent of the other. Of such an exjmession the meaning is, according to Judge CoweN, in Jackson v. McConnell (19 Wend., 180), that neither can alien the entire estate. Our attention is called to an expression in the opinion, in Zorntleim v. Bram (100 N. Y., 12), that the deed of the wife alone conveyed no title. This is to be taken in connection with the issue in that case, which was simply whether the grantee from the wife alone of an undivided half could maintain partition. The deed to the bus. band and wife was in 1878, and wras, therefore, not affected by chapter 472 of Laws of 1880, though the deed to plaintiff from the wife was in 1881. The court held that the case was controlled by the Bertles case, and that plaintiff could not maintain partition. For that purpose at that time no title was conveyed. There was no occasion to decide whether 'the deed of Mrs. Bram would, in case she survived her husband, operate to pass the estate, and it is not to be assumed that there was any design to pass upon the question whether, in any event, the separate deed of the wife or of the husband would become or be operative upon the title. Under the Code (§ 1532) tenants by the entirety are not given the right to nave partition.'

In the old cases, the limit of the power of alienation by the husband is that he cannot alien so as to cut off the right of survivorship of the wife. In Back v. Andrew (2 Vernon, 120), decided in 1690, it is said “ the husband cannot alien, nor dispose of it, so as to bind the wife.” The question was, whether a mortgage given by the husband barred the surviving wife after his death. In Doe v. Parratt (5 Dunford & East, 652), decided in 1794, the question was whether the deed of the husband alone barred the wife, she surviving her husband; and Kenyon, Ch. J., said “ it has been settled for ages, that when the devise is to the husband and wife, they take by entireties and not by moietiess and the husband alone cannot, by his own conveyance, without joining his wife, divest the estate of the wife.” So, in 1 Bright on Husband and Wife (25), it is laid down that “ one peculiarity of this tenancy is, that the husband cannot alone convey the property so as to affect the interest of the wife surviving, who will be entitled to the whole.” (See, also, 2 Kent’s Com., 133 ; 1 Wash, on Real Prop., 707, sub. 3a.)

By our statute (4 R. S. [8th ed.], 2434, § 35) expectant estates are alienable in the same manner as estates in possession, and by the term “expectant estates,” as said in Lawrence v. Bayard (7 Paige, 76), the legislature intended to include every present right or interest, either vested or contingent, which may, by possibility, vest in possession at a future day. The husband in this case had, in substance, a contingent remainder, and I see no good reason why he had not power to execute a deed which would operate to convey all his interest, and so operate to carry the fee in case he survived the wife. This conclusion is, I think, authorized by the weight of authority, although in some States a different conclusion is reached, 'based to some extent on statutory provisions. (Chandler v. Cheney, 37 Ind., 391; Corinth v. Emery 63 Vt., 505.)

But it is urged by the defendants that the fact that the wife paid the entire purchase-price places her in a better position. As to this it is to be observed that she consented to the form of the deed as taken. It must, therefore, be assumed that she was content to have such rights as the law awarded to her in that kind of ownership. It was so held in Ward v. Krumm (54 How., 95). In Persons v. Seargent (132 N. Y., 590) it had been held at Special Term, in case of a deed to husband and wife, that the fact that each paid one-half the purchase-price, and that from the time of the purchase to the death of the husband they divided the proceeds of the property equally between themselves, did not prevent the wife from talcing the whole as survivor. The decision at Special Term was affirmed at General Term and in the Court of Appeals.

The mortgage was for $1,550. Of this, $1,400 was to secure a note given the year previous and signed by the wife as well as the husband. One thousand dollars of the fourteen hundred was applied by the husband in part payment for thirty-five acres of land, the title of which was taken in his own name. Afterwards and in September, 1890, the husband conveyed to the wife both parcels of land. The consideration of this transfer, except, perhaps, by inference, does not appear, nor does the value of the thirty-five acres appear. "Whether either party had any other property does not appear. I think the wife has not made out a case for equitable protection against the mortgage.

It follows that the plaintiff is entitled to judgment awarding him possession of the property and declaring that his estate in the property is the right to the use during the joint lives of the defendants, and that he is entitled to the fee in case the husband survives the wife, and that the wife has no equity superior to plaintiff’s rights under the mortgage-

MaetiN, J., concurred.

HardiN, P. J.:

I am disposed to agree-to the doctrine of the foregoing opinion, though the opinion in Albrecht's Estate (32 N. E. Rep., 632) gives rise to some hesitation.

' That opinion says: “"Wliat would be the legal rights of the parties, where, upon a purchase of real property, the husband and wife had each contributed from their separate estates equally, or in any other ascertained proportion, to the payment of the consideration does not as yet seem to have been the subject of judicial decision.”

Judgment ordered for the plaintiff as stated in the opinion, with costs.


source: Caselaw Access Project

author: MeewiN, J.:

license: Public Domain

text:
    In the Matter of the Claim of NANCY BRONSON, Appellant, against the Estate of GEORGE C. BRONSON, Deceased.

      Olaim, against a decedent’s estate of two items — allowance of a sum less than either item — appeal—what items may he considered on a new trial — improper admission of declarations of a decedent — reversal of a surrogate’s decree.

    Where a claim against a decedent’s estate consisted of two items, one of $797 for rent and the other for $1,188 on a draft for insurance money, and the surrogate made a decree allowing the claim at $679, hut it did not appear how the amount was made up, and the claimant appealed from that part of the decree which established her claim at $679, and from “each and every part of said decree • which disallows her claim for a draft of $1,188,” and the part of the decree appealed from was reversed and a new trial granted:

      Held, that the whole claim, and not the item for $1,188 only, was open for proof on the new trial.
    An error, in receiving in evidence declarations of the decedent in behalf of his estate, upon the trial in a Surrogate’s Court of a claim against the estate:

      Held, to have been necessarily prejudicial to the claimant, within the meaning of section 3545 of the Code of Civil Procedure, and to call for a reversal of the surrogate’s decree.
    Appeal by the claimant, Nancy Bronson, from a decree of tbe Surrogate’s Court of Oswego county, entered in the office @f said surrogate on the 11th day of April, 1892, in the proceedings for the final settlements of the accounts of Nancy Bronson, widow, and one of the administrators of the above-named decedent, and Alexander McAuley, her co-administrator, in which proceeding the said Nancy Bronson presented a personal claim against this estate, which consisted of two items, one for rent, $7.97 and interest, and the other for an insurance draft for $1,188, or the proceeds thereof, issued'by the .¿Etna Insurance Company of Hartford, payable to the order of said Nancy Bronson, and which was deposited by the decedent, in his lifetime, in the First National Bank of Camden, N. Y., on the 20th day of May, 1884, to his own credit.
    Section 2545 of the Code of Civil Procedure provides that a decree or order of a surrogate, rendered upon a trial before him, “ shall not be reversed for an error in admitting or rejecting evidence, unless it appears to the appellate court that the exceptant was necessarily prejudicial thereby.”

      D. A. King, for tbe claimant, appellant.

      O. M. Reilly, for tbe respondents.
   MeewiN, J.:

Tbe appellant, Nancy Bronson, is tbe widow of George C. Bronson, deceased, and is one tbe administrators of his estate. Tbe administrators, in April, 1888, applied for a judicial settlement of tbeir accounts and thereupon tbe appellant presented an individual claim against tbe estate. Tbe controversy here is over that claim.

On tbe 3d of August, 1875, the appellant became tbe owner of certain real estate, and on tbe 4th of May, 1884, tbe buildings thereon were destroyed by fire. Tbe claim of appellant, as presented, is for rents received by tbe deceased from this property, from January, 1876, to May 4, 1884, to tbe amount of $797, and interest thereon, $168; also for amount of draft for insurance money received by deceased May 20, 1884, $1,188, and interest thereon, $244.74, tbe total of tbe whole claim being $2,397.74. Bronson died 19th of August, 1886.

Tbe claim of tbe appellant and also the accounts of the administrators were contested by some of tbe heirs and next of lrin and were tried together. Only one decree was entered thereon and in this tbe accounts were adjusted and tbe claim- of plaintiff was allowed at tbe sum of $679.05, and interest from tbe decease of the intestate. It did not appear from tbe decree bow tbe amount that was allowed on the claim was made up. Thereafter tbe claimant appealed to tbe Supreme Com!, and in tbe notice of appeal it was stated that she appealed “from that part of tbe order, judgment and decree of tbe Surrogate’s Court of Oswego county made'in tire above-entitled matter, dated December 28, 1889, which is in tbe following words and figures: ‘ And it is hereby further ordered, decreed and adjudged that tbe claim of Nancy Bronson, one of tbe administrators of this estate, for $2,397.74, presented by her against this estate and contested by the next of kin of tbe decedent, after having beard the proofs and allegations of tbe several parties and arguments of counsel and due deliberation thereon, is hereby established at tbe sum of $679.05 and interest thereon from the decease of the intestate, viz., August 19, 1886, to December 28, 1889, to interest, $135.81, making a total of $814.86.’ And she appeals, from each and every part of said decree which disallows her claim for a draft of $1,188, and interest from the date of the decease of said George 0. Bronson.”

This appeal resulted in a reversal of the decree, as to the part appealed from, and the granting of a new trial. In the judgment of reversal that was entered, after reciting that the proceeding had been brought to a hearing upon an appeal from that part of the decree which established the claim at the sum of $619.05,' and “ also on an appeal from each and every part of said decree,” which disallowed her claim for the amount of the draft, it was adjudged that the decree, as to the part appealed from, be and the same is wholly reversed upon both questions of law and fact,” and that a new trial be had in the Surrogate’s Court.

The matter then proceeded to anew trial in the Surrogate’s Court, and the appeal now before us is from the decree then made. In the course of the trial, the court held that the prior appeal was only from that part of the decree which disallowed the claim on the insurance draft, and that the order for a new trial only covered that claim, and that, therefore, the claimant had no right to give evidence on the subject of the rents. It was assumed that the amount, as allowed in the former decree, was for rents. The claimant offered to prove not only the amount proved on the former trial, but an additional amount to the extent of $100. This was excluded, and exception taken.

The offer was within the amount of the claim as presented, and, we think, the court erred in excluding the evidence. The appeal, as taken, was distinctly from that part of the decree that adjusted the entire claim of the appellant at the sum of $679.05, and interest. That being reversed, as it was by the appellate court, there remained in the Surrogate’s Court no adjudication upon any part of the claim. The whole was open for proof, the same as if there had been no previous trial of the case.

Evidence was taken on the subject of the draft, and the court, in its decree, decided that the appellant could not recover therefor. Among other evidence offered by the respondents, the court received, over the objection and exception of appellant, divers declarations of the deceased in regard to matters disputed at the trial. The appellant claims error in these rulings. The draft was payable to the order of the appellant. She indorsed it, and allowed her husband, the deceased, to take it, and he thereupon took it to a local bank and had the proceeds placed to his credit. At his death $1,000 of such proceeds remained in the bank. The main question at the trial was whether the draft, after its indorsement by Mrs. Bronson, was delivered by her to Mr. Bronson for the purpose, and with the intent of transferring to him absolutely all her interest in the draft and its proceeds.

Ordinarily, the indorsement and delivery would be presumptive evidence of the transfer of the title of the proceeds, but where the transfer claimed is from the wife to the husband, a different rule is said to prevail. In 2 Perry on Trusts (§ 666), it is said: “ If a husband receives the capital fund of his wife’s separate property, there is no presumption that she intended to give or transfer it to him, but he is prima facie a trustee for her, and a gift from her to him will not be presumed without clear evidence.” (See, also, 1 Wormley's Estate, 137 Pa., 101; Jaques v. Methodist Episcopal Church, 17 Johns., 548; Gage v. Dauchy, 28 Barb., 622, reversed on other grounds in 34 N. Y., 293; 8 Am. and Eng. Ency., 1333.) In the Jaques case, it is said a wife may give of her separate property to her husband as well as any other person, if her disposition of it be free, and not the result of flattery or force, or improper treatment.

"With a view of showing a reason for an absolute transfer, the respondents sought to show that the buildings destroyed by fire were built by the deceased from his own means, and that upon this account the insurance moneys were regarded by the appellant as belonging to her husband.' Some of the declarations above referred to were upon this subject, and were to the effect that the buildings cost him, the deceased, several thousand dollars; that he would lose by the fire over a thousand dollars; that he paid the original purchase-price of the property; also, upon several occasions, that he said the money in the bank was his. These declarations, being received in behalf of the estate, were clearly incompetent. (Weller v. Weller, 4 Hun, 195.) This seems to be conceded, but it is claimed that they were not sufficiently material to call for reversal within section 2545 of the Code. We are, however, inclined to the opinion that, under the construction of this section m Matter of Will of Smith (95 N. Y., 517), the declarations referred to were received to sncli an extent as to call for reversal.

Tbe appellant also claims that the surrogate, in deciding the case, took into consideration material evidence that bad been given on the former trial, bnt had not been given upon this. This fact, however, is only apparent, if at all, from the opinion as printed in the case. This is hardly a sufficient basis for an exception. It is, of course, true, as claimed by the appellant, that the case should have been decided upon the evidence given at the trial in hand and upon that only. Whether it was so decided, and if not, what remedy the appellant would have, it is not necessary here to consider, in view of our conclusions upon other parts of the case.

It follows that, by, reason of the errors above referred to, in regard to the claim for rents, and in receiving the declarations of the deceased, the decree must be reversed.

Hardin, P. J., and Martest, J., concurred.

Decree of Surrogate’s Court reversed and new trial ordered, costa of the appeal to the appellant, payable out of the estate.


author: HaediN, P. J.:

text:
    DERASTUS SWARTHOUT and Others, Appellants, v. WILLIAM F. RANIER, Respondent.

      Will — life estate, with conditional power to dispose of the corpus — mortgage by beneficiary — cloud on the title of the heirs to the fee.

    A will contained the following provision: “I will, devise and bequeath to my wife, Ann Elizabeth Swarthout, all of my property, both real and personal, * * * to have and to hold for her comfort and support all of the above-named property, if she needs the same, during her natural lifetime,” followed by a legacy to another, “if there is enough of my property left at the death of my wife.”

      Held, that this gave the wife more than a life estate, namely, the right and power to break into the corpus of the estate and dispose of the property “ during her natural life,” if, and on the condition that, she needed the same “for her comfort and support,” but did not give her an absolute estate in fee.
    The wife named in said will survived the testator, and after his death married one R., and thereafter executed to R. a mortgage upon the testator’s real estate, which was duly recorded, to secure the payment of a certain sum to R. The mortgagor died before the mortgage became due, and the testator’s heirs-at-law thereupon brought suit against R. to remove the mortgage as a cloud on their title as owners of the fee in the testator’s realty. When the case came on for trial, and befoi’e any evidence was produced, the complaint was dismissed on the ground that it did not state facts sufficient to constitute a cause of action.

      Held, that, for the purposes of an appeal, the averments of the complaint, as to matters dehors the will and mortgage (which were set out in the complaint), must be taken as true, and that no reference should be had to the averments of the answer.
    That the mortgage was not invalid on its face, and that a defense to it would necessarily require the proof of facts aliunde the mortgage and the will.
    That, as the complaint alleged that the mortgage was not given for the wife’s “comfort and support,” and that it was wholly without consideration, illegal and void, and as in order to support such allegations resort must be had to parol evidence of facts aliunde the will and mortgage, a case for equitable relief was presented.
    Appeal by the plaintiffs, Derastus Swarthout and others, from a judgment, entered in the Schuyler oounty clerk’s office on the 20th day of July, 1892, upon a decision made at the Schuyler county Special Term, dismissing the plaintiffs’ complaint, with costs, with notice of an intention to bring up for review, upon such appeal, the order of said Special Term dismissing the complaint.
    The judgment recites that upon the case coming on for trial an order was “ then and there made upon the pleadings dismissing the plaintiffs’ complaint, with costs to the defendant.” The appeal book contains no findings made by the trial court. The case states that when the cause was reached and moved for trial “ the defendant’s attorney then and there moved to dismiss the complaint and the action upon the pleadings, and thereupon the said court dismissed the complaint of the plaintiffs and the action, with costs to the defendant, to which the plaintiffs’ counsel then and there duly excepted.”
    In the complaint it is alleged: That Darius Swarthout died in the town of Tyrone, Schuyler county, on the 1st day of October, 1886, leaving his last will and testament, a copy of it is set out; that the will was admitted to probate on the 25th of October, 1886, and letters testamentary issued to Doughty, the executor, and the testator left him surviving his widow, Ann E. Swarthout, but left no children or descendants, and left no father him surviving ; that he left Joanna Swarthout, his mother (who has since died), and Deras-tus Swarthout a,nd the other plaintiffs, “ his brother and sisters and only lieirs-at-law; ” that the testator, at the time of his decease was the owner in fee and died seized of the lands described in the complaint, consisting of about eiglity-one acres. It also alleged that “ under and by virtue of the said will, the said Ann E. Swarthout took a life estate in the real and personal property of which the said Dai’ius Swarthout, deceased, died seized, to have and to hold the same for her comfort and support, if she needed the same, during her natuial life, and which was all the estate or interest that she had or took in and to said estate, or any part thereof, and that she had no other or different estate or interest in the same.” Also that she, under and by virtue of the will, took and received all of the personal property of which the said Darius Swarthout died seized, amounting in all to the sum of $1,200;'that she had the sole use, profits and enjoyment of all the lands and premises aforesaid “for and during her natural life.” That in the month of April, 1890, she intermarried with the defendant and was his wife until the 29th day of September, 1891, at which time she departed this life at Penn Tan, leaving her husband, the defendant, her surviving. Also, “that at the decease of the said Ann E. Ranier, the said lands and premises herein described remained intact, and had not, nor had any part thereof, been used and disposed of for the comfort and support of the said Ann E. Ranier, formerly Ann E. Swarthout, under the provision of said will, and that the same, upon her decease, descended to the plaintiff, Joanna Swarthout, during her life, and the reversion to the plaintiffs * * * in fee as the heirs-at-law of said Darius Swarthout, deceased.”
    It also alleged that “ on the 1st day of October, 1891, the defendant herein caused to be recorded in the records in the Schuyler county clerk’s office, at Watkins, N. Y., in Book 30 of Mortgages, at page 139, a certain written instrument purporting to be an indenture of mortgage, and which purported to be executed and acknowledged by the said Ann E. Ranier, formerly Ann E. Swart-hout, to the defendant, and purporting to secure to the defendant the payment of the sum of three thousand dollars and interest thereon, and purporting to cover and bind the said lands and premises hereinbefore described for such payment, and dated on the 1st day of July, 1890, a copy of which said instrument” is set out.
    It also alleged: “ And these plaintiffs further allege that the said Ann E. Ranier bad no right, power or authority to execute, acknowledge or deliver to the defendant, or any other person, the said instrument marked £ B ’ for the purpose of binding and charging the fee in remainder of said lands and premises, and that said instrument purporting to be executed by her, was and is, as these plaintiffs are informed and believe, wholly without consideration, illegal and void as against these plaintiffs and their several interests in said lands and premises.”
    It also alleged “ that said defendant claims and insists that said instrument is a good, valid and subsisting lien and mortgage upon the whole of said lands and premises, and upon the interests of these1 plaintiffs therein, and that the defendant intends to insist upon the-collection and payment of the same out of the said lands and premises.” Also that before the commencement of this action the plaintiffs, “requested and demanded of said defendant that he execute and; acknowledge ” a satisfaction of said mortgage, which he refused to do-Also, “ that said instrument is and still remains upon the records of' Schuyler county, and is and creates an apparent lien and incumbrance to the amount of $3,000 and interest upon said lands and premises, and the interests of these plaintiffs therein, and is a cloud upon their interests and title thereto.” The complaint contains a suitable prayer for relief. ,
    The testator’s will bears date the 17 th day of August, 1878, and' contains the following language:

      “ First. My will and desire is that all my just and lawful debts- and funeral expenses be paid.

      “ Second. I will, devise and bequeath to my wife, Ann Elizabeth1 Swarthout, all of my property, both real and personal, household goods of whatever name or nature, promissory notes, notes, bonds,, mortgages, bank bills, etc., to have and to hold for her comfort and support, all of the above-named property, if she needs the same,, during her natural lifetime, if she should outlive me.
    “ Thi/rd. My will and desire is that, after the death of my wife,. Ann Elizabeth Swarthout, I will, devise and bequeath to the Wayne Tillage Baptist Church one thousand dollars, to be put out at interest, and the annual interest is to go toward the supporting a minister to preach for the said church, if there is enough of my property left, at the death of my wife.

      “ Fourth. I hereby appoint my friend, William II. Doughty, as my only executor and trustee to this, my last will and testament, hereby revoking all former wills made by me.
    The answer of the defendant alleged “that on the 9th day of July, 1890, the said Ann E. Swarthout, then Ann E. Ranier, executed, acknowledged, sealed and delivered to this defendant her bond in the penal sum of $6,000, conditioned for the payment of $3,000 to this defendant, his representatives or assigns, five years from July 1, 1890, with interest at six per cent per annum, payable semi-annually, and in and by said bond she charged her separate estate with the payment thereof, and acknowledged that such indebtedness was contracted for the benefit of such estate; and for the purpose of securing the payment of such bond, she, Ann E. Ranier, executed, acknowledged and delivered to this defendant, on the raid 9th day of July, 1890, a mortgage, which is the same mortgage referred to in the complaint.” The answer also denied “ that said Ann E. Ranier had no right, power or authority to execute, acknowledge or deliver to this defendant the said mortgage for the purpose of binding and charging the fee in remainder of said lands and premises described therein; and he denies that said instrument was or is without consideration, or illegal or void, as against the plaintiffs.”

      Jdriggs dk Stmd'erlin, for the appellants.

      James S. Havens, for the respondent.
   HaediN, P. J.:

As no evidence was produced upon the trial, and as it is claimed the court dismissed the complaint on the ground that the complaint did not state facts sufficient to constitute a cause of action, “ the averments of the complaint as to matters dehors the will, must, therefore, for the purposes of the present appeal, be taken as true, and no reference to the answer is necessary or proper.” (Smith v. Van Ostrand, 64 N. Y., 280.) The formal language found in the mortgage which was executed on the 9th of July, 1890, was sufficient confessedly to cover'and bind the life,estate of Ann E. during the period from the date of the mortgage to the 2-'th day of September, 1891. If she only took a life estate in the premises, which expired at her death, there would be no foundation for the plaintiffs’ action, or necessity for the same, as the lien created by tlie mortgage would have ceased by the termination of her life; but the language found in the will, we think, gave her more than a life estate in the premises. She was clothed with power to use during her natural life the corpus of the estate “ for her comfort and support.” (Allport v. Jerrett et al., 41 N. Y. St. Rep., 32, and cases there cited.) The testator gave her something more than a life estate; he gave her the right and power to break into the corpus of the estate' and use the same for her comfort and support during her natural life. This power of disposition was conditional, however, she being authorized to use “ for her comfort and support all of'the ” property given to her by the will on condition that “ she needs the same during her natural life.” It seemed to have occurred to the testator that there was uncertainty as to how much, under the power thus given, of the property would be converted and applied to her “ comfort and support,” for in the third provision of the will, which gives the $1,000 to the church, after the death of the widow, he states that his desire is that the $1,000 be given after the death of the wife, if “ there is enough of my (his) property left at the death of my (his) wife.” (Smith v. Van Ostrand, 64 N. Y., 284, and cases there cited; Rose v. Hatch, 125 id., 433; Thomas v. Pardee, 12 Hun, 151.) The case is unlike Clarke v. Leupp (88 N. Y., 228), as the devisee in that case was “ authorized to take charge of my property after my death and to retain or dispose of the same for the benefit of herself and children above named.” The language found in the will, which fell under construction in Crain v. Wright (36 Hun, 74; S. C., affirmed 114 N. Y., 307), differs from the language in the will before us; there the widow was given the land ‘‘to have and to hold for her benefit and support; ” and in the course of Judge VakN’s opinion, in the Court of Appeals in that case, he said: “In Henderson v. Blackburn (104 Ill., 227), and Payne v. Barnes (100 Mass., 470), cited by the learned counsel for the appellant, there was an express limitation of the gift by the use of the words ‘ during her lifetime ’ in the. former, and ‘ during her natural life ’ in the latter. In the absence of such express terms and when the effort to qualify the estate depends wholly upon necessary implication, a strong and clear case is required to satisfy the statute.” In the case in hand it cannot be doubted that the widow had power to dispose of the property “ during her natural life,” if she needed the same “ for her comfort and support,” and for that purpose she was to have and to hold the property during her natural life.” (Greyston v. Clark, 41 Hun, 125, and cases referred to in the opinion.)

The learned counsel for the respondent calls our attention to Vernon v. Vernon (53 N. Y., 351); in that case the language in the will which fell under consideration, gave to the wife the house in which I (testator) reside, together with the eight lots adjoining; ” this language was followed by a provision that the executors might sell the property “ and invest the proceeds in good securities of not less than six per cent per annum for her benefit, during her natural life; ” and in the course of the opinion of Andrews, J., it was said : “ It is supposed that the direction, that the executors, in case of a sale by them of the house and adjoining lots, shall invest the proceeds for her benefit during ‘ her life,’ indicates an attention to give her a life estate only, in that property. The language employed by the testator in the devise to his wife, although no words of inheritance are used, is appropriate to convey a fee. Disconnected with the ¡Dower of sale subsequently given, no doubt could be entertained that the gift of the fee was intended. The power of sale was contingent, not absolute. It might never be exercised. There is no limitation of the interest of the wife in the land to the use only; and if the power of sale should never be exercised, her interest should not be cut down to a life estate by a vague and uncertain implication arising from the direction that in case of a sale the proceeds should be invested for her benefit for life. The direction as to investment is to be regarded simply as a careful provision made by the testator for the purpose of securing to the wife the enjoyment of the property given to her; and the proceeds arising from the sale, in case the power of sale was exercised, would belong to her, subject to the trust for investment for her benefit ” We think the case does not support the position taken by the respondent, in which. he asserts that the language of the will before us gave the fee, “ subject only to the legacy to the church, and enough for her comfort and support during her natural life, if she needed the same.” It is not needful in this case to determine that she did not have the right to consume for her comfort and support during her natural life, if she needed the same,” all of the estate and property left by her husband; so that “ after the death of the wife ” there should not be enough of the property left to pay the legacy to the church. In passing it may be remarked that probably it was the intention of the testator that the church legacy should encounter the contingencies that might surround her requiring or authorizing her to use the whole estate for her comfort and support, and that if she did so the legacy to the church would fail.

Respondent calls our attention to Schult v. Moll (132 N. Y., 122) in support of his contention that the fee passed to the widow. Upon examination of that case we find the language quite unlike the language used in the case.before us. After the testator had provided expressly for two-tliirds of his estate, he added the words “ to my wife, Babetta Hablawitz, one-third, that is to say, her dower right to my estate ; ” and those words were construed in connection with the whole phraseology to carry an absolute estate to the wife of one-third, and the conclusion was reached that, if the words “ that .is to say, her dower right ” were omitted, the devise would unquestionably carry the fee. For the reasons already given the conclusion is reached that they were not employed for the purpose of restricting or cutting down the estate, and the clause should accordingly be read as devising to Babetta the fee of an undivided one-third of the testator’s real estate.”

"We see nothing in the case which sustains the position assumed by the respondent.

But it is claimed by the respondent that, “ because the courts have limited this form of action to those cases in which the alleged invalidity of the instrument attacked as a cloud ’ is such that it will not necessarily appear in proceedings to enforce the instrument,” this action cannot be maintained. In considering this question it must be assumed to be well settled by authority that, where the lien is invalid upon its face, or where the invalidity will necessarily appear in any proceeding taken to enforce title under it, then the jurisdiction of a court of equity cannot be invoked to set it aside. Then the owner must wait until his title is actually assailed under the lien, and his defense will always be at hand.” (Townsend v. The Mayor, 77 N. Y., 546, and cases there cited ; Carpenter v. Carpenter, 40 Hun, 263, and eases therein cited in the opinion of the ■court.) If tbe mortgagee were to bring an action to foreclose his mortgage he would be able' to establish his right to a judgment of foreclosure which might produce a sale and deed by proving the execution of the mortgage by the mortgagor, his wife, the deceased. In doing so it would not be necessary in the first instance to show any facts aliunde the mortgage; nor would the mortgage upon inspection present any “illegality” which would defeat the same; nor would any illegality appear in the mortgage if the will of Swarthout was read in evidence.

Other facts and circumstances would be necessary to defeat the operation of the mortgage, and a defense to the mortgage would necessarily require facts aliunde the mortgage and the will. If it be assumed that the devisee, Ann, had power to use, during her life for her “ comfort and support,” the body of the estate left by her first husband, inquiry would necessarily be made as to whether she exercised that power in her lifetime. Did she, by executing the bond and mortgage mentioned in the pleadings, exercise such power ? It may be observed incidentally that the mortgage was given to secure her bond, and the defendant in his answer alleged that the bond was given for $3,000, and that “in and by said bond she charged her separate estate with the payment thereof and acknowledged that such indebtedness was contracted for the benefit of such estate.” What separate estate was it given to benefit ? If given to benefit her separate estate, was it given for her “ comfort and support?” When it was given the defendant was her husband, and under a legal obligation to supply her with support, and this circumstance tends rather to support the allegation that the bond and mortgage were given for the benefit of her separate estate, rather than for her “ comfort and support.” However, upon turning to the complaint for the facts upon which our decision must rest, we find the plaintiffs have alleged that the mortgage was not given for her comfort and support, and that the same was “ wholly without consideration, illegal and void, as against these plaintiffs and their several interests in said lands,” and that the lands “ had not, nor had any part thereof, been used or disposed of for the comfort and support of said Ann E. Ranier, formerly Ann E. Swarthout, under the provisions of said will, and that'the same upon her decease descended ” to the plaintiffs. To establish this by proof, adequate to support such allegations, resort must be bad to parol evidence of facts and circumstances aliunde the will and the mortgage. "We think, therefore, the case falls within the rule stated and applied in Carpenter v. Carpenter (supra). Assuming, therefore, that such parol evidence must be given, which may be lost by lapse of time, as stated in the complaint, which we must assume to be true (Smith v. Van Ostrand, supra), we think a case is made out which entitles the plaintiff to the interference of a court of equity. (Smith v. Reid, 134 N. Y., 578.) If the defendant never gave any consideration for the mortgage, took the same, as is alleged in the complaint, “ wholly without consideration,” it would seem to be the appropriate office of a court of equity upon ascertaining such facts to grant relief at the instance of the owners of the fee.

In delivering the opinion in Schoener v. Lissauer (107 N. Y., 111), which was an action brought by the heirs-at-law to procure the cancellation and discharge of a mortgage, it was said: “ The case made by the complaint and findings was a proper one for the removal of a cloud upon the title of the plaintiffs to the real estate which they had inherited from their mother. The mortgage was certainly an apparent lien upon their title and the facts which constituted their defense to it could only be established by extrinsic evidence;” and later on in the opinion it was said the action is brought “to compel the cancellation óf an instrument to which they have a good defense, but which constitutes an apparent lien, and, so long as it remains outstanding, injuriously affects their title, and their defense to which, resting on extrinsic facts to be established by evidence, may be imperiled by the lapse of time and the consequent loss of testimony. * * * It is an acknowledged head of equity jurisdiction, resting on these grounds, to remove clouds upon the title to land, at the suit of the owner of the fee. Such owner has the right to invoke this aid and to have an apparent, though not real incumbrance, discharged of record at any time while he continues to be owner. * * * The cause of action is not the creation of the cloud, but its existence, its effect upon the title of the owner, and his right to have it removed.” The doctrine we have just quoted was referred to approvingly in Smith v. Reed (48 N. Y. St. Rep., 162). In tlie case in band, as already stated, the complaint alleges that the income and use of the estate devised were sufficient for the comfort and support of the mortgagor, and that no part of the corpus of the estate was needed or used for that purpose, and that before the commencement of this action the defendant was requested to release the premises and discharge the mortgage therefrom and that he refused to so do, and that he insisted, before the the action was commenced, that the mortgage was a valid, subsisting lien upon the premises, and he has taken that position in the answer that was served in this case. "We think the Special Term fell into an error in refusing to consider the issues joined between the parties after hearing facts hearing upon the merits thereof, and that a new trial should be had where all the questions important to determine the rights of the parties may be presented and fully considered after the evidence shall be given relating thereto.

MARTIN and MbewiN, JJ., concurred.

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


author: HardiN, P. J.:

text:
    LORENZO BOON and Another, Respondents, v. DANIEL McGUCKEN and Others, Appellants.

      Contempt — violation of an inunction by city officials — criminal and civil contempt distinguished — costs.

    On an application, in a pending civil action, to punish for contempt certain defendants, members of the common council of the city of Utica, charged with having violated an injunction which enjoined the city from making, and the members of the common council from voting to enter upon, or attempting to conclude, any contract for street paving which should require the use of asphaltum from any particular place, and not obtainable in the open market by all persons for the same price, the Special Term made an order adjudging such defendants guilty of contempt and imposing $200 fine and fifteen dollars costs upon each and committing them to jail until payment was made.

      Held, that, as the order imposed costs, it was not to be upheld as an order in a proceeding for a criminal contempt, under sections 8 and 9 of the Code of Criminal Procedure, since the court has no power, under those sections, to impose costs.
    That, assuming the proceeding to be for civil contempt, the order could not be sustained, for the reason that it did not contain the adjudication and determination required by tlie Code of Civil Procedure in such a proceeding, Viz., that tbe act complained of is one ‘ ‘ by which a right or remedy of a party to a civil action * * * maybe defeated, impaired, impeded or prejudiced (§§ 14, 3266), “and that it was calculated to, or actually did, defeat, impair, impede or prejudice the rights or remedies of a party to an action,” etc. (Sec. 3281.)
    Appeal by the defendants, Daniel McG-ucken and others, from an order made at the Onondaga Special Term and entered in the Onondaga county clerk’s office on the 17th day of September, 1892, adjudging certain of the defendants guilty of contempt and fining them $200 apiece and fifteen dollars costs each, and requiring the fines to be paid to the clerk of Oneida county, and the costs and disbursements to be paid to the plaintiffs.
    An injunction order was granted on the 3d day of June, 1892, by a justice of this court; a motion was made to vacate and set aside said order which was denied. It was alleged that, after the granting of the injunction and after the denial of the motion to vacate the same, on tlie 18th of July, 1892, the common council of the city of ITtica adopted certain resolutions for which the eight defendants, as members of the common council, voted. It appeared that the resolutions were vetoed by the mayor, and that “ on the twenty-second day of August, a special meeting of the council was duly held to consider and act upon said veto. At this meeting all the alderman were present except Alderman Beatty, and said resolution or ordinance for paving South street, Sunset avenue and Jewett place and Jewett street and Plant street were passed over said veto by a vote of eight alderman voting in the affirmative and three in the negative. Those voting in the affirmative were the defendants Boyce, Clark, Corcoran, Dowd, Boberts, "Welch, Tessey and McGncken.”
    It was claimed at the Special Term that the injunction order restrained the members of the common council of the city of Utica from making any contracts with any person or corporation for the paving of any of the streets mentioned, or any part or either of them “ when the concrete base will be laid, the wearing surface or pavement proper, the matrix, or binding material of which is a cement prepared with the best quality of refined Trinidad asphaltum obtained from the Pitch lake in the Island of Trinidad. And from making any contract affecting said streets, or any of them requiring asphalt pavement thereon to be of asphalt from any particular place, and not obtainable in the open market by ail persons for the same price.”
    It is said in the opinion delivered at the Special Term, viz. : “ As no actual contract in writing has been entered into between the city of TJtica and the "Warren-Scharf Company for paving said streets with asphalt from Pitch lake in the Island of Trinidad, technically, perhaps, there has not in this respect been a violation of the injunction. * * * But there is another prohibitory clause in said order that seems to have been intentionally disobeyed by the defendants complained of, and that is ‘ and each member of said common council is enjoined from voting to enter into any such contract on the part of the city of Utica, and from jointly or severally participating in concluding or attempting to conclude any such contract until the further order of the court.”
    In the veto message of the mayor, bearing date August 15, 1892, he said:
    “ The resolution, and the subsequent action of the council in the matter of Pitch lake asphalt appears to me to be a violation of the injunction. Enjoined as I am, as well as the members of the council, I cannot consent to this action, and bring the mayor  or myself into contempt. I must, for the good name of the city and my personal security, obey the law and respect the order of the court. I, therefore, return the foregoing resolution, also the ordinance based thereon for the paving of South street, as the same appears in the certified minutes of the common council, under the date of July 27, to your honorable body without my approval.
    “ THOMAS WHEELER,
    “ Mayor.”

    Proceedings were instituted to punish the defendants for contempt, by the plaintiffs obtaining an order August. 24, 1892, requiring the defendants to show cause at a Special Term to be held in September, 1892.

      Matteson dk De Angelis and A. M. Beardsley, for the appellants.

      O hartes D. Adams, for the respondents.

        Sic.

   HardiN, P. J.:

(1.) It seems to be settled by authority that, in cases of criminal contempt arising under sections 8 and 9 of the Code of Civil Procedure, the court has no power to impose costs.

In People ex rel. New York Society for the Prevention of Cruelty, etc. v. Gilmore (88 N. Y., 626), it was said, viz.: “ A proceeding, however, to punish for such a contempt, is a criminal proceeding, and the General Term, on reversal of the order of Special Term, has no authority to impose costs upon the relator.”

In Stubbs v. Ripley (39 Hun, 627), in considering an alleged criminal contempt, it was held that the court “ did not have power to impose upon the defendant $10.00 costs of the motion.” In delivering the opinion in that case, DaNiels, J., said, in considering an alleged criminal contempt, viz.: “Authority to add these costs has not been given to the court by the section of the Code of Civil Procedure declaratory of the power of the court in the way of imposing punishment.” The case from which the quotation has just been made was decided in the General Term of the first department in 1886.

(2.) In Brinkley v. Brinkley (47 N. Y., 40), it was held that contempt proceedings are special proceedings, and that an appeal lies from an order which is absolute in adjudging a person in contempt, and prescribing punishment.

(3.) In People ex rel. Negus v. Dwyer (90 N. Y., 410), it was held that an injunction order is a mandate, and is, therefore, included in that expression found in the sections of the Code of Civil Procedure relating to contempt. (Code of Civ. Pro., § 14.)

(4.) It has been repeatedly held that a party having knowledge of the existence of an injunction may be punished for violating it. (Mayor, etc., of New York v. N. Y. and S. I. Ferry Co., 40 N. Y. Superior Ct. Rep., 300 ; S. C., affirmed, 64 N. Y., 623 ; King v. Barnes, 28 N. Y. St. Rep., 625; Aldinger v. Pugh, 57 Hun, 181; S. C., affirmed, 132 N. Y., 407.) And it has also been held that a disobediance of an order by a party of which he had knowledge, and which had been served on the solicitor and not himself, may be punished as for a contempt. (The People v. Brower, 4 Paige, 405 ; Koehler v. Farmers and Drovers' Nat. Bank, 17 Civil Pro. Rep., 307.) And the same is true, although the acts done in violation were upon the assumption tbat sucli acts could be safely done notwithstanding the injunction. (Gage v. Denbow, 49 Hun, 42, following Rochester, H. and L. R. R. Co. v. N. Y., L. E. and W. R. R. Co., 48 id., 190.) It was held, however, m Koehler v. Farmers and Drovers' National Bank (14 Civil Pro. Rep., 71) “that, unless personal service is made of an injunction order, that willful and deliberate intent essential to constitute a criminal contempt is wanting.”

( 5.) In Duffus v. Cole (39 N. Y. St. Rep., 838) the question was presented to this court as to whether the defendant was properly convicted for violating an order and injunction, and in the course of the opinion delivered it was said: “Again, the defendant was not liable for contempt, unless her act might defeat, impair, impede or prejudice the right or remedy of the plaintiff. We are unable to see how her act in any way tended to do that. There was no proof of any loss to the plaintiff. (King v. Flynn, 37 Hun, 329; Fall Brook Coal Co. v. Hecksher, 42 id., 535; S. C., 4 N. Y. St. Rep., 657.) We think the order should be reversed.”

In Rhodes v. Linderman (43 N. Y. St. Rep., 520) the case of Duffus v. Gole was referred to approvingly in an opinion delivered by one of the members of this court.

■ (6.) It was said in Hawley v. Bennett (4 Paige, 164) that, so far as the rights of the party have been “ affected by the breach of the injunction, it is no defense to the person who has been guilty of violating the same, that he did it under the advice of counsel; ■although, if he has acted in good faith, it may be sufficient to protect him from punishment as for a criminal contempt. The rights of parties must be protected against the wrongful acts of the adverse party, although he may have acted under the advice of counsel.” The same doctrine was approved by Folgeb, J., in Erie Railway Company v. Ramsey (45 N. Y., 654); to the same effect is People ex rel. Davis v. Compton and others (1 Duer, 512; affirmed People ex rel. Davis v. Sturtevant, 9 N. Y., 263).

(7.) It is provided in section 14 of the Code of Civil Procedure as follows: “ A court of record has power to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded or prejudiced, in either of the following cases.” Then follows an enumeration of eases in eight subdivisions, and, in the fourth subdivision, it is provided that such punishment may be applied to a person for committing several enumerated acts “ and for any other unlawful interference with the proceedings therein.”’

In King v. Barnes (113 N. Y., 476), it was held that a party who-had been convicted of contempt for advising and procuring one of the defendants to disobedience of the judgment on the part of the officers of a corporation was a civil contempt within the Code of Civil Procedure, section 14, subdivision 4.” And it was also held, viz.: “ Any person who interferes with the process,, control or action of the court in a pending litigation, unlawfully and without authority, is guilty of a civil contempt if his act defeats, impairs, impedes or prejudices the rights or remedy of a party to such action or proceeding; ” and the punishment of such a party, according to the provisions found in section 2285 of the Code of Civil Procedure, was upheld.

In King v. Flynn (37 Hun, 329), although the acts of the defendant were unlawful and contumacious, it was held that the case was within the provisions of title 3 of chapter 17 of the Code of Civil Procedure.

In Dejonge v. Brenneman (23 Hun, 333), it was alleged that an order of injunction had been granted restraining the defendants from collecting rents and the violation thereof was charged as a contempt, and, in the course of the opinion, it was said : “ It does not appear, from the papers submitted on the appeal, in what way the fine above mentioned was made up, and there does not seem to be any evidence •to warrant its imposition. This is a civil contempt.” * * *

Title 3 of chapter 17 of the Code of Civil Procedure relates to- proceedings to punish a contempt of court other than a criminal contempt,” and in section 2266 of the Code it is provided as follows: In a case specified in section 14 of this act, * * * and a right or remedy of a party to a civil action or special proceeding pending-in the court, or before the judge or the referee may be defeated, impaired, impeded or prejudiced thereby, the offense must be punished as prescribed in this title.” Then follows several sections relating to the practice, and in section 2281 of the Code of Civil Procedure it is provided as follows: “ If it is determined that the accused has committed the offense charged, and that it was calculated to, or actually did, defeat, impair impede or prejudice tbe rights or remedies of a party to an action or special proceeding brought in the court or before the judge or referee; the court, judge or referee must make a final order accordingly, and directing that he be punished by fine or imprisonment, or both, as the nature of the case requires.” And in section 2285 of the Code of Civil Procedure it is provided what punishment may be inflicted for “ omission to perform an act or duty which it is yet in the power of the offender to perform, he shall be imprisoned only until he has performed it,” and then follows a provision in the section as follows: “ In every other case, where special provision is not otherwise made by law, the offender may be imprisoned for a reasonable time, not exceeding six months, and until the fine, if any, is paid; and the order and the warrant of commitment, if any, must specify the amount of the fine and the duration of the imprisonment.”

In Moffat v. Merman (116 N. Y., 131) it was held that: “ Under the provisions of the Code of Civil Procedure (§§ 14, 2281, 2284), definining what is, and providing the punishment for, a civil contempt, the amount of fine which may be imposed must be based upon proof of the damages actually sustained.”

In the case in hand, it appears that a decision of the motion made by the plaintiffs to adjudge the defendants in contempt, was made September 17, 1892, and signed by the judge presiding, which stated: The motion made by the plaintiffs to adjudge the above-named defendants, Daniel McGucken. (and others), aldermen, and forming a part of the Common Council of the city of Utica, in contempt for a violation of an injunction order issued in the above action, and to" punish them individually for the same, is granted, and a fine of two hundred dollars is imposed upon each of said defendants, which, when paid, will be paid over to the county clerk of Oneida county, and an additional fine of fifteen dollars upon each of said defendants, which, when paid, will be paid over to the plaintiffs for their costs and disbursements in this proceeding as a punishment for said offense. An order will be entered in pursuance of the above, containing all necessary provisions, and, among others, that each of said defendants stand committed to the jail of Oneida county until the fines imposed against him are paid.” Subsequently, an order was prepared wbicli contained the following language: “It is * * * found, upon the evidence presented, that the above-named defendants, Daniel McGucken (and others), are, and each of them is guilty of contempt of this court, and that each of them has, knowingly and willfully, disobeyed the injunction order which had been granted in this action, and duly served upon them and set forth in the moving papers, in full, in the following particulars and manner; ” then follows a quotation from the injunction order, and thereafter the order contained the following: “The above-named defendants, while said order remains in full force and effect, did, as members of the common council of said city of Utica, jointly and severally and knowingly and willfully, vote to let a contract or contracts to the 'Warren-Scharf Asphalt Paving Company to pave the several streets above mentioned with the best quality of refined Trinidad asphaltum, to be taken and obtained from Pitch lake, in the Island of Trinidad, and did participate in concluding and in attempting to conclude said contract or contracts with said Warren-Scharf Company. For the disobedience of said defendants to said order, as above found and stated, each of said defendants are adjudged guilty of contempt. It is further ordered and adjudged that, for such acts of contempt, the said defendants, Daniel McGucken, Robert Boyce, Charles F. Clark, Michael F. Corcoran, John L. Dowd, John E. Roberts, John Welch and Joseph Tessey be and they are each fined, and a fine is imposed upon each for the sum of two hundred dollars, which said fines, when collected, shall be paid to the county clerk of Oneida county. It is fui’ther ordered and adjudged that each of said defendants be and they are fined the further sum of fifteen dollars, which, when collected, shall be paid to the plaintiffs for their costs and disbursements in this proceeding. It is further ordered and adjudged that each of said defendants stand committed to the jail of Oneida county, in the city of Utica, until said fines imposed upon him are paid, or he is discharged according to law. The proper process will be issued to the sheriff of Oneida county for the execution of this order. This order will be entered in the Oneida county clerk’s office; ” and it was signed by the judge presiding at the Special Term. The order does not contain any provision in pui\ suance of section 14 declaring that “ a right or remedy of a party to a civil action or special proceeding pending in the court may be defeated, impaired, impeded or prejudiced ” thereby or the equivalent ; nor the language found in section 2281 of the Code of Civil Procedure, viz.: “ If it is determined that the accused has committed the offense charged, and that it was calculated to, or actually did, defeat, impair, impede or prejudice the rights or remedy of a party to an action or special proceeding, brought in the court or before the judge or referee; the court, judge or referee must make a final order accordingly, and directing that he be punished by fine or imprisonment, or both, as the nature of the case requires.”

In Matter of Swenarton v. Shupe (40 Hun, 42) it was held <c that as the punishment exceeded that which the court was authorized to inflict by section 9 of the Code of Civil Procedure, for a criminal contempt, it was to be assumed that the proceedings were instituted under the provision of the Code authorizing the punishment of a person for a contempt in a civil action for misconduct by which a right or remedy of another may be defeated, impaired, impeded or prejudiced. That, assuming the order to have been made under such latter provisions, it was void, because no adjudication was made that the misconduct complained of was calculated to or actually did defeat, impair, impede or prejudice the rights or remedies of the petitioner, or that the latter had sustained any loss ■or damage thereby.”

The doctrine of the above case was followed in Dinsmoor v. Commercial Travelers’ Association (14 N. Y. Supp., 676). And in Sandford v. Sandford (40 Hun, 540) it was held that to punish a party for contempt in a civil proceeding, his conduct must be such as to defeat, impair, impede or prejudice a right or remedy of the party affected by it, and that fact must be ascertained and adjudged by the court directing the punishment which is to be imposed.”

In Wheelock v. Noonan (55 Sup. Ct. Rep. [J. &. S., 23], 305), section 2281 of the Code of Civil Procedure was referred to and a construction thereof was given in accordance with the views expressed by us in Dinsmoor v. Commercial Travelers’ Association (supra).

In Fischer v. Raab (81 N. Y., 235) it was held, “ in proceedings under the provisions of the Code of Civil Procedure (§ 14), to punish as a contempt an act of misconduct or neglect of duty, in a civil action pending, it must be made to appear that the act or omission complained of is one ‘ by which a right or remedy of a party * * * may be defeated, impaired, impeded or prejudiced,’ and this must be adjudged to authorize the infliction of the punishment.”"

¥e think the decision and order, to which reference has been made, pronounced by the Special Term, because they contained no-such adjudication and determination as are provided for by sections-14, 2266 and 2281 of the Code of Civil Procedure, should not be-sustained.

( 8.) The order to show cause recites that the summons and complaint and the injunction, and all the papers on which the injunction was granted, were read. The order made at the Special Term,, brought here by appeal, does not recite the summons and complaint as having been read at Special Term when the order was made, and the appeal book does not contain the complaint. It does contain, however, numerous affidavits in which it is stated by the defendants that they intended to comply with the injunction order, and to avoid any act which would in any way, in letter or spirit, violate the same, and that all their acts were done openly without any attempt at concealment, and that they had the advice of the city attorney that they were at liberty to perform the several acts which are alleged to be in violation of the injunction order, and that by such acts they would not violate the injunction order, and that they acted upon his advice, relying upon it, and in good faith.

It was said, in People ex rel. Kelly v. Aitken (19 Hun, 329), by the General Term in the second department, viz.: “ If, for example:, one, after careful examination, wrongly interpret, and, through this-mistake, disobey an order, the majesty of the law is not offended nor the dignity of the court impaired; and, as he is innocent of willful offense, the infliction of punishment could have no justification. The willful disobedience expressed in the statute means conduct, intentionally and designedly, at variance with the mandate-of the court.” The complaint of the plaintiff not being found in the appeal book the full objects of the action are not ascertainable,, although it is inferred that the action was begun by taxpayers, under section 1925 of the Code of Oivil Procedure, to restrain waste.

In Talcott v. The City of Buffalo (125 N. Y., 280) it was held that the remedy, under that section, “is confined to cases where the-acts complained of are without power, or where corruption, fraud or bad faith, amounting to fraud, is charged; the words £ waste ’ and ‘injury’ include only illegal, wrongful or dishonest illegal action.” And in Ziegler v. Chapin (126 N. Y., 348) Talcott v. The City of Buffalo was referred to in the following language: “We have quite recently declined to become arbitrators between taxpayers and their municipal officers in every instance of disagreeing opinions or conflicting judgments,' and have decided that, jurisdiction in the officials existing, the courts can interfere in actions like that before us only where some fraud or collusion or bad faith is alleged and proved.”

By reason of the absence of the complaint, and because the affidavits used at the Special Term'are very conflicting, and by reason of the views already expressed which lead to a reversal, we omit any comment upon the merits of the application, and rest our conclusion upon the views already expressed.

We think the order appealed from should be reversed, with costs.

MARTIN and Merwiist, JJ., concurred.

Order and decision reversed, with one bill of costs.