author: Yak Brunt, P. J.:

text:
    In the Matter of the Judicial Settlement of the Accounts and Proceedings of Edward M. Grout, as Committee of the Property of Anthony Crouter, a Lunatic. Edward M. Grout, as Committee of the Property of Anthony Crouter, a Lunatic, Appellant; Annie E. Crouter, Administratrix, etc., of Anthony Crouter, Deceased, Respondent.

      An appeal from, an order denying a motion for rea/rgvment — committee of a lunatic — sections 2339 and 2344 of the Gode of Oivil Procedure — accounting upon the death of the lunatic.

    The General Term of the Supreme Court cannot entertain an appeal from an order denying a motion for the reargument of a motion; the court which hears the original motion can alone judge whether it has failed to consider any of the points raised upon a motion, and its determination upon this point is final.
    Under the provisions of section' 2339 of the Code of Civil Procedure the committee of the person or property of a lunatic is made subject to the direction and control of the court by which he was appointed with respect to the execution of his duties, one of which is, upon the termination of his office, to hand over the property of the lunatic to the proper parties.
    The provisions of section 2344 of the Code of Civil Procedure are only intended to provide for the distribution of a lunatic’s property, after his death, in the settlement of his estate..
    Upon the death of a lunatic the proper course for the committee of his property to pursue is to present his accounts, with his petition for a citation, to the court appointing him, upon the return of which, the accounts being before the court, if no objection be made, the court may pass the same, allowing what is just to be retained by the committee for his expenses and commissions, and directing the payment of the balance to the administrator of the lunatic.
    In order to enable the court to determine whether the bond of the committee of the property of a lunatic should be discharged, it must have before it the committee’s accounts.
    Appeal by Edward M. Grout, as committee of tbe property of Anthony Crouter, a lunatic, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of October, 1894, denying the application of the appellant for an accounting- and for his discharge as committee of the property of Anthony Crouter, a lunatic, and also from an order of the Supreme Court, made at the New York Special Term on the 12th day of November, 1894, and entered in said clerk’s office, denying the application of the appellant for a reargument of such motion.

      Won. H. Arnoxtjx, for the appellant.

      JST. B. Iloxie, for the respondent.
   Yak Brunt, P. J.:

As appears by the petition herein the petitioner was appointed the committee of the property of a lunatic and duly qualified, filing a bond for the faithful discharge of his duties in the amount of $16,900. Subsequently he entered upon his duties and has collected property belonging to the lunatic.

The lunatic died in July, 1894, and in the same month letters of administration were granted upon his estate to the respondent, Annie E. Crouter.

The next of kin are stated in the petition, all of whom are alleged to be of full age except two, who are over fourteen yeai’S of age.

The petitioner then prayed for the issuance of a citation by this court to the administratrix, the next of kin, the obligor of the bond and the creditors of the lunatic’s estate, to make proof of claims and to show cause why final settlement of accounts of the committee should not be had, and if no cause be shown, to attend the settlement of said account.

Upon the hearing upon this petition a citation was issued, and upon the return of the petition the administratrix ajopeared and objected to an accounting, claiming that the court had no jurisdiction to pass upon the accounts, as section 2344 of the Code of Civil Procedure provides that, “ Where a person, of whose property a committee has been appointed, as prescribed in that title, dies during his incompetency, the power of the committee ceases, and the property of the decedent must be administered and disposed of as if a committee had not been appointed.” The court sustained the objection and upon a motion for reargument denied the same, and from the orders thereupon entered these appeals are taken.

It is clear that this court cannot entertain an appeal from an order denying a motion for reargument. The court which hears the original motion can alone judge whether it has failed to consider any of the points raised upon a motion, and its determination upon this point must be final.

The appeal from the order denying motion for reargument must, therefore, be dismissed, with ten dollars costs.

We think, however, that the motion for accounting should not have been denied upon the ground which has been urged. It is claimed that after a lunatic has died this court is ousted of all jurisdiction, and has no power to release its officer of his duties, or from the obligation of his bond.

By section 2339 of the Code of Civil Procedure a committee of the pei’son or property of a lunatic is made subject to the direction and control of the court by which he was appointed with respect to the execution of his duties, one of which is, upon the termination of his office, to hand over the property of the lunatic to the proper parties.

Section 2344 of the Code was only intended to provide for the distribution of a lunatic’s property after death in the settlement of his estate. The preceding section, 2343, requires the court to discharge the committee and restore his property to a lunatic when he becomes able to manage himself or his affairs, yet it will hardly be claimed that after the court has determined that the lunatic has become competent, and is bound to restore to him his property, the court has no power to pass the committee’s accounts, and, if found correct, discharge his bond. In the case at bar, if the respondent’s contention is well founded, it would be impossible for the committee ever to get his bond dischai-ged. The Surrogate’s Court clearly cannot pass his accounts and discharge his bond.

The condition of a committee’s bond is, that the committee will in all things faithfully discharge the trust reposed in him, and obey all lawful directions of the court touching the trust, and that he will, in all respects, render a just and true account of all money and other property received by him, and of the application thereof, and of his committeeship, whenever he is required to do so by a court of competent jurisdiction.

Whether the condition of this bond has been fulfilled cannot be determined by the court appointing the administratrix, and, hence, such bond could never be discharged if this court is completely ousted of all jurisdiction.

The learned court below based its decision upon the case of In the Matter of Bechwith (87 N. Y. 503), but it will be seen that the court expressly held in that case that the court is to pass over the property to the administrator of the lunatic, and may make provision for compensation for expenses incurred while the estate is under its supervision. How can this be done except by a presentation of his accounts by a committee to the court, and a determination by the court appointing him what he shall pay over, and what is this but an accounting?

The appellant was entitled to have this court direct what he should retain for expenses and what he should pay over, and upon such payment to discharge his bond. It -is urged that it would be manifestly unjust to grant this application if the court had the power, and thus deplete this small estate to the extent of referee’s, guardian’s and attorney’s fees and allowances. If it is necessary that these exjjenses should be incurred to discharge the committee, the committee has a right to a discharge and they must be incurred. The suggestion is made that the committee should reserve his commissions and deliver the balance of the property to the administratrix, and that her receipt would fully discharge and protect him, and that if he wished a formal discharge by this court he could procure the same ex parte. I hardly think that this court will discharge a committee’s bond ex parte, or allow a committee and an administratrix to deplete an estate to any amount they see fit by way of com- ■ missions and expenses. In order to determine whether a committee’s bond should be discharged, the court must have before it the committee’s accounts, and then determine what allowance should be made for expenses and if commissions should be allowed. Any other course would open the door for the greatest abuses.

"We do not see that the next of kin or the creditors of the lunatic have any right to representation upon this application. The creditors must collect their debts through the administratrix, and the next of kin must receive their share of the estate through the same source. The whole legal title to the personal property of the deceased lunatic is in the administratrix. It seems to us that the proper course for the committee is to present his accounts with his petition for citation. Then upon the return of said citation the accounts will he before the court; and, if no objection is made, it may pass the same, allowing what is just to be retained by the committee for his expenses and commissions, and directing the payment of the balance to the administratrix. In the case at bar there need be no such expenses as are urged as a reason for denying all protection to the committee; and, if no objection is made to the committee’s accounts when filed, the court may pass the same and make a final order.

If the objection had been made that accounts had not been presented, this might have been a good reason for dismissing the application, but as no such objection has been raised, it cannot be considered here.

The order denying the application should be reversed, and an order made requiring the filing of the account and providing for an application founded thereon for discharge, without costs.

Parker and O’Brien, JJ., concurred.

Appeal from order denying motion for reargument dismissed, with ten dollars costs; order denying application for accounting reversed and order made requiring the filing of account, and providing for an application founded thereon for discharge, without costs.


source: Caselaw Access Project

author: Per Curiam :

license: Public Domain

text:
    George L. Taylor, Appellant, v. The Blue Ridge Marble Company and Others, Respondents.

      Order directing the plaintiff to separately state and number causes of action — when proper — equity action — when it does not consist of two causes of action at law.
    When two causes of action, are set forth in a complaint an order requiring the plaintiff to amend the complaint by separately stating and numbering such causes of action is proper.
    A suit brought in equity for the purpose of creating a fund, and, as a result of, or as an incident to, the creation of the fund, to procure its distribution, all persons having an interest in the fund or its distribution being made parties to the action, does not consist of two causes of action at law ; the facts furnish grounds for relief in a court of equity, and constitute, in the language of the Code of Civil Procedure, a “ cause of action.”
    Appeal by the plaintiff, George L. Taylor, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of October, 1894. directing the service of an amended complaint.

      Ed/uomd W. Grittenden, for the appellant..

      Julius F. Worlcum, for the respondents.
   Per Curiam :

• If two causes of action are set forth in the complaint, then the order below was right in directing the separation and numbering of such causes of action. The question presented, however, is whether there are two causes, or one, set forth in the complaint.

The complaint alleges that the firm of Byrne & Perry had a contract for the erection of a church; that the defendant, the Blue Ridge Marble Company, contracted with them to furnish the material and perform the work required by the marble specifications of the plans for said church; that thereafter the Piedmont Marble Company, plaintiff’s assignor, contracted with the Blue Ridge Marble Company to complete the latter’s contract with Byrne & Perry ; that this contract was induced by false representations, which, when the falsity was known, led the Piedmont Marble Company to repudiate the contract and file a mechanic’s lien for the value of the material furnislied; that thereafter, an action having been brought, an agreement was entered into between the parties to this suit by which the action was discontinued and the mechanic’s lien satisfied, and the moneys received by Byrne & Perry from the church were to be paid into a trust company to the joint order of the attorneys for the two marble companies, and if Byrne & Perry did not pay into the trust company $6,000 when the last payment should be due from the church, that firm was to give an order on the church to pay into the trust company such an amount as would make up the sum agreed; that by a subsequent agreement the plaintiff and the Blue Ridge Marble Company and the attorneys contracted for the disposition of the money deposited with the trust company; and that, although the payments provided to be made by the church to Byrne & Perry are due, the latter have paid nothing into the trust company and have refused to give their order on the church. The prayer of the complaint, in substance, asks that the contract entered into between the parties should be specifically performed, and that out of the moneys to be deposited the plaintiff receive the value of the work, labor and material furnished.

It is insisted that there are two causes of action stated, one against the Blue Ridge Marble Company for the value of material furnished, and another for the specific performance of a contract made by the firm of Byrne & Perry and the marble companies, and that these should be separately stated. We think, however, that in this the respondent is in error. This is not an action at law, but a suit in equity for-the purpose of creating a fund, and then, as a result of or an incident to the creation of the fund, procuring its distribution, and all persons having any interest in the fund or its distribution are made parties to the action.

The action may be rightfully regarded as brought to enforce the contract made between all the parties to the action which had for its object the discontinuance of plaintiff’s action and the substitution of a fund in the trust company. The grievance is the failure of some of the parties to provide the fund as agreed, and, as shown by the complaint, the object of the action is to create a fund, and then, with all persons who could have any interest therein being made parties, to determine as to its distribution. There are not, therefore, two causes of action at law, but the facts furnish the grounds for relief in a court of equity, and constitute, in tbe language of tbe Code, “ a cause of action.”

We think the order below was erroneous and should be reversed, with ten dollars costs and disbursements.

Present — Yan Brunt, P. J\, O’Brien and Parker, JJ.

Order reversed, with ten dollars costs and disbursements.


text:
    Cornelius S. Bushnell, Appellant, v. William W. Durant, Respondent.

      Place of trial not changed for the convenience of expert witnesses.

    Expert witnesses are not tlie witnesses whose convenience is to he consulted by Changing the place of the trial of an action. They are usually paid for their services in addition to the ordinary witness fees, and are presumed to be compensated for their inconvenience in attending the trial.
    Upon a motion by the defendant in an action to change the place of trial thereof, on the ground of the convenience of witnesses, from the county of New York to the county of Hamilton, it appeared that the defendant, though a resident of Hamilton county, had an office in the city of New York where the transaction which it iyas sought by the action to have declared invalid occurred, and where, besides the plaintiff, three other persons, stated to be the only other witnesses to the transaction, also resided.

      Held, that an order changing the place of trial from New York to Hamilton county was erroneous and should be set aside on appeal.
    Appeal by tbe plaintiff, Cornelius S. Buslmell, from an order of tbe Supreme Court, made at tbe New York Special Term and entered in tbe office of tbe clerk of tbe county of New York on tbe 8tb day of October, 1894, granting tbe. defendant’s motion to change tbe place of trial from tbe county of New York to tbe county of Hamilton for tbe convenience of witnesses.

      B. B. Johnes, for tbe appellant.

      H. W. Simpson, for tbe respondent.
   Per Curiam :

Tbe action is brought to procure a judgment directing a reassignment of certain interests in a bond and two mortgages made by tbe Adirondack Company to one Enoch H. Rosekrans, and secured by certain lands situated in the counties of Hamilton, Franklin, Sara-toga, Essex, Herkimer, St. Lawrence, Jefferson and others in the State of New York, which interests plaintiff alleges were conveyed for a grossly inadequate price because of certain fraudulent representations made by the defendant as to the value of the lands upon which the mortgages were a lien. The answer of the defendant is a general denial and the Statute of Limitations.

The defendant moved to change the place of trial on account of the convenience of witnesses. On this motion the defendant has given tire names of seven expert witnesses selected by him, by whom, as he swears, “ he expects to prove ” the value of the lands upon which the mortgages in question were a lien. To offset what the defendant thus expects to prove the plaintiff names eleven witnesses, three of whom, he states, were engaged in negotiations with the defendant in relation to Adirondack lands, the other eight being claimed to be experts familiar with the value of the lands in question.

It does not seem to us that expert witnesses are the witnesses whose convenience is to be consulted by changing the'place of trial. They are usually paid for their services in addition to the ordinary witnesses’ fees, and, therefore, are presumed to be compensated for' their inconvenience; besides, if the place of trial were to be changed because of the convenience of such witnesses, why might not a party name any number, not only six, but sixty, merely for the purpose of procuring an order of removal ?

It appears that the defendant, though a resident of Hamilton county, has an office in this city, where the transaction sought to be invalidated occurred, and where, besides the plaintiff, three other persons, stated to be the only other witnesses to the transaction, also reside. Although the plaintiff claims to have more expert witnesses than the defendant, if we assume .the number on each side to be the same, it would appear that the principal transaction took place, and all the witness acquainted with the facts reside, in this city (New York), except the defendant, and that he has an office here. Upon this showing, we think, the court below erred in its conclusion, and that this General Term- has the right to correct such error.

It will be noticed that in regard to the expert witnesses it is not stated tbat they will testify as to tlie value, tbe statement being that the parties expect to jirove by such witnesses the value of the lands in question. This leaves the affidavits open to the criticism pointed out in the case of Thurfjell v. Witherbee (70 Hun, 401), where, in regard to similar affidavits used upon a, like motion, it was said: “This motion is founded and resisted on great expectations.” Outside of the experts, as the transaction occurred here, where all the witnesses to the transaction, except defendant, reside, and as the defendant has an office here, we think that these considerations should, upon the merits, determine the question in plaintiff’s favor.

The ordei should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Present — Yan Brunt, P. J"., O’Brien and Parker, JJ

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


author: O’Brien, J.:

text:
    Sigmund Ashner, Plaintiff, v. Max Abenheim and Another, Defendants.

      -Contract — long price {inclusive of ditty) or short price {exclusive of duty) — recovery of an amount paid under a misrepresentation contained in a contract — a misrepresentation of low usually affords no ground for redress.

    A. person purchased from another twenty-six bales of Sumatra tobacco, through a broker, and received from the latter a bought note, which read as follows :
    “ Mr. S. Ashner, 15£ Bowery, bought of M. Abenheim & Co., 3 and 4 Stone street, twenty-six bales Sumatra tobacco, Deli Poewa, Bl, as per annexed return, ÜSTos. 1,148.53, 1,154.74; net 45,460, at §1.40 — 86,364.40. Terms: The goods .are to be delivered, duty cash, not less than five bales at a time. Any amount ■of goods over five bales, delivered between date of bill and sixty days thereof is to be discounted at the rate of 6 per cent per annum on a four months’ basis. For amount of goods remaining in bond at the expiration of sixty days a four months’ note is to be given for the bonded amount, but whenever more than five bales have been delivered, such excess is to be discounted at 6 per cent per annum for unexpired time of note.
    “ The duty on such amount of goods remaining in bond must be paid whenever a change in the tariff necessitates it.
    “ The duty is 45 cents (forty-five cents) per pound.”

      The duty paid on. the tobacco by the vendor was in fact but thirty-five cents a pound, and an action was brought by the vendee, he having paid the full amount of §6,864.40, to recover the difference of ten cents a pound obtained by the alleged misrepresentations of the vendor.

      Held, that the construction of the contract should be determined by the court;
    That the contract was one by which the plaintiff agreed to purchase the tobacco at a certain sum per pound, and in addition thereto to pay whatever might be the duty, and as, for the purpose of fixing in the contract what the understanding of the parties was as to the duty, it was, as the effect of a representation made by the defendants, placed at forty-five cents per pound, and as thereafter the defendants paid only thirty-five cents, they would not be justified in retaining the forty-five cents which they received from the plaintiff, and were liable for the difference between the amount of duty represented and that actually paid.
    As a general rule, a misrepresentation of law affords no ground for redress or relief.
    Parker, J., dissenting.
    Motion by the plaintiff, Sigmund Ashner, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance, upon the dismissal of the complaint directed by the court after a trial before the court and a jury at the New York Circuit on the 19th day of December, 1892.

      John Fennel, for the plaintiff.

      B. F. Finstein, for the defendants.
   O’Brien, J.:

The plaintiff purchased from defendants twenty-six bales of Sumatra tobacco, through a broker, and received from the latter a bought note, which reads as follows:

Mr. S. Ashner, 15£ Bowery, bought of M. Abenheim & Co., 2 and 4 Stone street, twenty-six bales Sumatra tobacco, Deli Poewa, Bl, as per annexed return, Nos. 1,148.52, 1,154.74; net 45,460, at $1.40 — $6,364.40. Terms: The goods are to be delivered, duty cash, not less than five bales at a time. Any amount of goods over five bales, delivered between date of bill and sixty days thereof, is to be discounted at the rate of 6 per cent pei* annpm on a four months’ basis. For amount of goods remaining in bond at the expiration of sixty days, a four months’ note is to be given for the bonded amount; but whenever more than five bales have been delivered, such excess is to be discounted at 6 per cent per annum for unexpired time of note.

“ The duty on such amount of goods remaining in bond must be paid whenever a change in the tariff necessitates it. ■

“ The duty is 45 cents (forty-five cents) per pound.”

The plaintiff paid the full amount of $6,364.40, and received the twenty-six bales of tobacco; but having subsequently ascertained that the duty on said tobacco was only thirty-five cents, instead of the forty-five cents stated in the note and paid to defendants, this action was brought to recover the difference of ten cents per pound so obtained by defendants, as alleged, through misrepresentation.

It clearly appears that the broker represented to plaintiff that the duty on the tobacco was forty-five cents, and that plaintiff relied upon such statement in paying that sum to defendants. If, however, such representation is to be regarded as one relating to the value of the tobacco, or as a representation of what the law was relating to duties, some doubt might exist as to plaintiff’s right to recover; upon the former ground, because it would have been necessary for the plaintiff to show that the actual value of the tobacco which he purchased was less than it would have been if the government had imposed a duty of forty-five cents upon it instead of a duty of thirty-five cents, which the evidence fails to disclose; and upon the second ground of misrepresentation of law, because, “generally speaking, a misrepresentation of law affords no ground of redress or relief; the misrepresentation should be of a fact.” (1 Bigelow on Fraud, 487.) But the plaintiff was not confined to either of these theories to justify a recovery, and we think that the error into which the learned court fell in dismissing the complaint was in overlooking the basis upon which the action was predicated and which necessarily involved a construction of the contract between the parties. The construction of such contract was for the court, and it is here to be determined whether, upon the construction which should be given to such contract, the dismissal of the complaint was justified.

If it was one wherein, as contended by defendants, the plaintiff agreed to purchase so many pounds of tobacco at one dollar and forty cents a pound, then it would -make no difference whether the duty was thirty-five or forty-five cents per pound. Or, as expressed in the trade language, if the price at which the plaintiff bought the tobacco was the “ long price ” (that is, inclusive of the duty), and not at the “ short price ” (which is’ exclusive of the duty), then the plaintiff could not recover back the difference in duty paid.

If this construction of the contract were to prevail, then the effort to recover the difference of ten cents could not be successful, because any representation made for the purpose of inducing the plaintiff to enter into such an agreement would be one relating to the value of the tobacco, or a misrepresentation as to the law — upon neither of which grounds could the plaintiff recover for the reasons already given. And it was by confining its attention to this as the only construction to be given to the contract, that the court was led into the error of dismissing the complaint. If, on the other hand, the contract was one by which the plaintiff agreed to purchase the tobacco at a certain sum per pound, and, in addition thereto, to pay whatever might be the duty, and, for the purpose of fixing in the contract whát the understanding of the parties was as to the duty, it was, as the effect of a representation made by defendants, placed'at forty-five cents per pound, and thereafter the defendants paid only thirty-five cents, they would not be justified in retaining the forty-five cents which they received from the plaintiff.

"We think the evidence justified the construction that the contract was one by the terms of which the plaintiff was to buy at the short price, which excluded the duty, and, in addition to such price, was to pay whatever the duty might thereafter be found to be, whether it was more or less than the amount represented of forty-five cents, and which was included in the contract. Such construction finds support in the circumstances attending the making and delivery to plaintiff of the bought note, which, as shown, when brought to plaintiff contained a statement that he bought so many pounds of tobacco at a fixed or long price, including the duty, but before he would accept the bought note or complete the contract, he insisted on the information as to what the duty was, and, as appears from such nbte, had it placed at the end thereof. It is true that the broker in one place testified that the price per pound for the tobacco fixed by the contract was one dollar and forty cents, duty cash; but he further stated that he could not remember whether, at the time such price was fixed, anything was said about the duty, or, to quote his exact language : “ I am at a loss to say whether these bought and sold notes and the price of $1.40 a pound were settled upon before I found out what the duty was.” This uncertainty, however, is entirely removed by his subsequent testimony that he and plaintiff conversed about the price of the tobacco in Amsterdam and the cost of importing the same, and that the plaintiff “ would not accept the contract unless I would put it down in writing how much the duty was.” When cross-examined by defendants’ counsel as to whether the plaintiff had not agreed to pay one'dollar and forty cents, no matter what the duty was, he said, “ I can’t say to that,” and upon further cross-examination he again positively stated that what the plaintiff said was that he would not accept it until he knew the amount of the duty. This testimony of the broker is fortified by that of the plaintiff himself, and is borne out by the letter written by the defendants to plaintiff, from which it is evident that they intended that, if the duty should be increased upon such tobacco before it was delivered, the plaintiff was to pay such additional duty. Besides this we have the statement of account wherein the amount to be paid by note and the amount of duty to be paid in cash are separately stated.

Such evidence, furnishing as it does the strongest kind of testimony as to the construction which the parties themselves placed upon the contract, must, in the absence of evidence to the contrary, be regarded as controlling upon the construction which the court should place thereon, and as supporting the plaintiff’s contention that he purchased the tobacco at ninety-five cents a pound, and in addition thereto agreed to pay the duty, which was stated at forty-five cents a pound, and that he did not agree, irrespective of what the duty was, to pay one dollar and forty cents a pound for the tobacco We think, therefore, that it was error to dismiss the complaint, because, in the light of such evidence, and as the case then stood, the court should have construed the contract, as we have endeavored to point out, favorably to the plaintiff’s contention. Having then been induced by the misrepresentation that the duty was forty-five cents a pound, to purchase, upon subsequently ascertaining that all the defendants paid from time to time out of the cash sent them to pay such duty, was thirty-five cents a pound, he was entitled to recover the ten cents, which we think, as shown by such evidence, was unjustly and illegally withheld by the defendants. It would, of course, be competent for the defendants to introduce their evidence, and that might to some extent change the construction which upon the plaintiff’s evidence alone must be given to the contract, and if it presented a question of conflict might require submission to the jury; but in the absence of defendants’ evidence we think that the dismissal of the complaint upon the plaintiff’s case was error for which the judgment should be reversed.

Exceptions accordingly sustained and motion for new trial granted, with costs to abide the event.

Follett, J., concurred; Parker, J., dissented.

Exceptions sustained, new trial granted, with costs to plaintiff to abide event.


text:
    In the Matter of the Discovery of Property Belonging to the Estate of Sophia Lynch, Late of the City of New York, Deceased. Edward B. Lynch, as Administrator, etc., of Sophia Lynch, Deceased, Respondent. George W. Lynch, Appellant.

      Proceedings f’or the discovery ofp>'operty of a decedent — when they must he dismissed hy the surrogate— Code of Civil Procedure, §§ 2706-2714, as amended hy chapter 686 of 1893.
    In a proceeding brought under sections 2706 to 2714 of tbe Code of Civil Procedure, as amended by chapter 686 of the Laws of 1893, for the discovery of the property of a decedent alleged to be held by a third person, a proper petition authorizes the issuing of a citation and the examination of such person touching such property; if, however, such person interposes a written answer, duly verified, alleging that, by virtue of a lien thereon, or special property therein, he is entitled to the possession of the property in the petition mentioned, concerning which the surrogate directs his examination, and setting forth the nature and circumstances of the lien, the surrogate must dismiss the proceeding under such provisions of the Code of Civil Procedure as so amended, and it is not within his power to pass upon the validity, sufficiency or extent of such lien.
    Appeal by George "W". Lynch from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 25th day of July, 1894, directing the examination of the appellant and of one John H. Lynch as to certain property alleged to be -withheld by them from the administrator of the estate of Sophia Lynch, deceased.

      W. Wickham Smith, for the appellant.

      Horace Graves, for the respondent.
   O’Brien, J.:

This proceeding was brought under sections 2706 to 2714 of the Code of Civil Procedure, as amended by chapter 686 of the Laws of 1893. The petition of the administrator sets forth that there were in the possession of'one John H. Lynch and the appellant, George W. Lynch, and wrongfully withheld from him, the following classes of property:

(1) Household furniture and carriages; (2) stock certificates of the Pulton Market Fishmongers’ Association ; and (3) a stand in the Fulton Fish Market.

The appellant interposed a written answer, duly verified, which > set forth:

As to the household furniture and carriages, that they were not and had never been in his possession.

As to the stock certificates of the Fulton Market Fishmongers’, Association, that he was entitled to the possession thereof by virtue of a lien thereon and special property therein, and he also set forth the nature and circumstances of his lien, and upon information and belief denied that Sophia Lynch was the real owner thereof at the time of her death.

As to the stand in the Fulton Fish Market, that he was the owner thereof.

Upon the interposition of this answer appellant moved to dismiss the proceeding, but his motion was denied, and an order was made directing his examination as to the shares of stock of the Fulton Market Fishmongers’ Association only. From this order the appeal is brought to this court.

The Code of Civil Procedure provides a means for the discovery of the property of a decedent held by a third person, and, upon a proper petition, authorizes the citation and examination of such person touching such property. It further provides that, upon the attendance of such person, he must be sworn to answer questions touching the inquiry prayed for in the petition, and he may be examined fully and at large respecting any money or other property of the decedent of which the decedent had possession at the time of or within two years before his death. It is further provided, however, that if the person so cited interpose a written answer, duly verified, that he is the owner of said property, or entitled to the possession thereof by virtue of a lien thereon or special property therein, the surrogate shall dismiss the proceedings as to such property so claimed.” (Code Civ. Proc. § 2709.)

Here the person sought to be examined interposed a written •answer, duly verified, alleging that he was entitled to the possession of the shares of stock of the Fishmongers’ Association, concerning which a discovery was sought, and concerning which the surrogate directed his examination by virtue of a lien thereon and special property therein, setting forth the particulars of such claim.

By the express language of the Code of Civil Procedure the interposition of such an answer required that the surrogate should dismiss the proceeding.

The construction of this section has been involved in several cases in this court, and that contended for by appellant has been consistently followed. Thus in Doyle v. Doyle (15 N. Y. St. Repr. 318) it is said : Section 2710 of the Code provides, by the amendment of 1881 (Laws of that year, chap. 535), that in case a person cited as one having property of the deceased shall interpose a written answer, duly verified, that he is the owner of the property, the possession of which is charged upon him, or that he is entitled to the possession thereof by virtue of any lien thereon or special property therein, the surrogate shall dismiss the proceedings as to such property so claimed.

“ Such an answer was interposed on this application, and it became the duty of the surrogate to dismiss the proceedings in accordance with the provisions of the section to which reference has just been made.

“ He had no power to investigate the verity of the denial thus made, and the order should be reversed, with ten dollars costs and disbursements.”

And in Matter of Cunard (27 N. Y. St. Repr. 128) it is said: <l The petitioner entirely misconceives the purpose and scope of sections 2706 to 2714 of the Code of Civil Procedure. These sections were not intended as a substitute for ordinary civil remedies in cases where the latter are alone appropriate. The object was to provide a summary means of discovery, and, in case of a mere naked possession of the decedent’s money or other personal property,’ to compel delivery to the legal representative. * * *

“Even where there is a withholding, the statutory proceeding must be dismissed ujion the filing of a duly verified answer, setting-up ownership, or possession by virtue of a lien or special property. (Section 2710.) ”

In regard to language so clear, it is unnecessary to multiply authorities.

Here the appellant set forth the particulars of his lien, and he-was entitled to have the proceeding dismissed. His answer showed, not a naked possession, but a lien upon and special property in the stock referred to, and it was not within the province of the surrogate to pass upon the validity, sufficiency or extent of this lien. As said in Matter of Knittel (5 Dem. 371): “ Those sections were-designed to afford a simple and summary procedure whereby the executor or administrator of a decedent might obtain an order for the surrender and delivery of such money or other property belonging to such decedent’s estate as should be discovered to be in the hands or under the control of some person or persons not lawfully entitled to the possession thereof.”

We think that the order was wrong and should be reversed, with, ten dollars costs and disbursements.

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

Order reversed, with ten dollars costs and disbursements.


author: Parker, J.:

text:
    Austin P. Baldwin and Another, Respondents, v. Albert Von Micheroux and Others, Appellants.

      Go-partnership —fiducimy relation of partners — employees engaged in a fraudulent scheme with one of the partners will he restrained — letters as evidence.

    A partner occupies a fiduciary position with regard to his co-partners and the funds of the firm, and will not be permitted to make a personal profit out of the use of such funds.
    Although partners do not, in the strict sense of the term, occupy the position of trustees toward each other and towards the firm funds, yet the position is one of a fiduciary nature, calling for the maintenance and exercise of the greatest good faith between them. Such a relationship authorizes the same remedy on behalf of the wronged partner as would exist against a trustee, strictly so called, on behalf of a cestui que trust.

    Where certain employees of a co-partnership co-operate with one partner in his efforts to perpetrate a fraud upon the other partners, with full knowledge on the part of such employees that such was the intent of such partner, and that „ it was all to be done in order that such -employees, as well as such partner, should profit at the expense of the co-partnership, the court has the power to restrain both the employees and the partner from either further proceeding with or consummating such illegal scheme, and such employees are likewise chargeable with the damages sustained by such co-partnership by reason of the partner’s misconduct.
    Letters written by such partner to such employees are admissible in evidence upon the trial of an action brought, among other purposes, to recover judgment against such partner and such employees, directing them to account for any and all profits they may have made or advantages they may have derived from their wrongful acts in fraud of the other members of such co-partner- . ship, if the letters tend to show knowledge on the part of such employees of the fraudulent scheme in which such partner was engaged for their mutual benefit.
    Appeal bytbe defendants, Albert Yon Micberonx and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 3d day of February, 1894, upon the decision of the court rendered after a trial at the New York Special Term.
    The complaint in the action contained a prayer for judgment in the following words:

      “ Wherefore, these plaintiffs pray:
    “ First. That the plaintiffs and their said firm be adjudged entitled to the sole and exclusive use of said secret process or formula and said trade marks, ‘Imperial’ and ‘Rose of Latakia,’ or any abbreviation thereof, in connection with the manufacture and sale of tobacco flavors.
    “ Second. Judgment against the defendants Albert Von Micheroux and John Boulger, enjoining and restraining them, or either of them, from in any way using the said trade mark or any abbreviation or imitation thereof, in any way or manner in connection with the manufacture and sale of tobacco flavors.
    “ Thwd. Judgment against the said defendants enjoining and restraining them from using said secret process or formula, oi imparting to others to the injury of the plaintiffs and their said firm
    “ Fourth. Judgment directing the said defendants to account for any and all profits they may have made or advantages derived from the wrongful use of said secret jmocess or formula and trade marks or any of them.
    “ Fifth. Judgment against the defendant George B. Seymour as may be equitable and just.
    “ Sixth. That during the pendency of this action, the said defendants Von Micheroux and Boulger may be restrained and enjoined as above demanded.
    “ Seventh. Such other, further or different relief in the premises as may be just.”

      Henry Schmitt, for the appellants.

      Willimn D. Guthrie and George O. Austin, for the respondents.
   Parker, J.:

This controversy relates to the ownership of, and right to use, a secret or unpatented process for manufacturing tobacco flavors, and to certain trade marks and brands, used in the business of the firm of Baldwin Brothers & Co. from the time of the commencement of this suit up to January 1, 1893.

Baldwin Brothers & Go. were- continuously in business in the city of New York for a period of over thirty years prior to the commencement of this suit.

One of the members of the partnership was George B. Seymour, one of these defendants, who had been a member of the firm for nearly ten years, and had been one of their clerks for some fifteen years prior thereto. Yon Micheroux, from December, 1883, until October, 1892, was in the employ of the firm as a traveling salesman, and the defendant Boulger had been in the employ of the firm as a compounder or rectifier of liquors for nearly ten years prior to the commencement of this suit. Boulger and Seymour had full knowledge of the secret process by which the tobacco flavorings were manufactured. Indeed, while its manufacture was suggested by Mr. Baldwin, the experiments were conducted almost entirely by Boulger and Seymour.

The theory of plaintiff’s suit is that these defendants conspired together, while Seymour was yet a partner, and the other defendants in the employ of the firm, to form a partnership for the manufacture and sale of the tobacco flavorings, the secret process for the manufacture of which was the property of the firm of Baldwin Brothers & Co. That their plan went beyond the manufacture and sale of the product under their own firm name, and involved a scheme to wrongfully divert the business of Baldwin Brothers & Co. to themselves. To accomplish this they caused circulars to be prepared before any of them had terminated their relation with Baldwin Brothers & Co., in which they described themselves as being the sole owners of this secret process and made use of trade marks belonging to the partnership.

These circulars they sent to those dealers who had been accustomed to do business with Baldwin Brothers & Co.; that the ruin of the business of Baldwin Brothers & Co. might be more certainly accomplished for their benefit, the fact that Seymour was a member of the new firm was kept secret. He notified his partners that he should go out of the firm at their convenience, and January 1,1893, was selected as the date of the,dissolution of the firm; in the meantime he made the. most of his opportunities to divert customers of Baldwin Brothers & Co. to the new firm in which his membership was kept secret.

The trial court decided that the secret process belonged to the firm of Baldwin Brothers & Co. prior to its dissolution, which took place December 31, 1892; that the manufacture and sale of the extracts by the defendants prior to such dissolution was a fraud upon plaintiffs and that defendants should account therefor; that an injunction should issue restraining defendants from representing by the issuing of circulars, or otherwise, that they were the exclusive owners of the secret process or of the trade marks and devices used in connection with the goods manufactured by such process. The conclusions of fact upon which the judgment is based are entirely sufficient for its support, and the reasons presented by the trial court for its decision are so satisfactory as to make it wholly unnecessary for this court to attempt to add anything to them.

The appellants insist that there were errors in the rulings of the trial court. Some of the findings of fact, they urge, are unsupported by evidence. Ye cannot agree with them, but think there was evidence upon which to base every inference of fact.

The appellants press upon the attention of this court exceptions taken to the admission in evidence of certain letters written by Seymour to Yon Micheroux and Boulger during the time which elapsed between the agreement to form the new firm and the commencement of this suit, and from which it appears that Seymour was employed in taking away from his long-time partners all the trade he could reach. .These letters disclose some of the fraudulent practices of which Seymour was guilty. They tend to show the nature of the conspiracy to wrong Baldwin Brothers & Co., and make clear that Yon Micheroux and Boulger were fully aware of the secret and fraudulent work in which Seymour was engaged against his old firm for the benefit of the new one. A reference to some of their letters will cause it to appear that the trial court was not in error in receiving them. November fourteenth, Seymour1, then the plaintiffs’ partner, wrote to Iris partners in the new firm exj>ressing his annoyance that the plaintiffs had received an order from one of their regular customers, and makes an inquiry which indicates a wonder on his part whether their fraudulent scheme had proved ineffective in that one case, or whether Yon Micheroux had neglected to perform his part of the work. It contains other suggestions of duplicity. But let the letter speak for itself.

“ I have just come from 53 Broadway, and am very much annoyed to report we rec’d to-day 90 gal. more from Stern Bros., Chicago. What ails these d-n Jews? Did you not send them a circular? I have also other news to report. The enclosed is a copy of a letter from B. Bros. & Co., lawyers to A. P. B., upon the propriety of suing out an injunction upon us. I am going there to-morrow, probably, but 1 am of the opinion, when I am through there, there will be no injunction, I am quite sure.”

The day following, November fifteenth, Seymour advises what plaintiffs’ travelling salesman was doing. The next day he informed Yon Micheroux that there might be danger that Marburg, one of plaintiffs’ oldest customers, would send an order to Baldwin Brothers & Oo. instead of defendants. In the letter of November nineteenth, to Yon. Micheroux, Seymour says, among other things, “We have got them tight, I think, beyond all doubt. They don’t da/re to attempt such a thing. Baird (the plaintiffs’ traveller), as I wrote you, went out over the N. Y. Central road, but, so far, has sold nothing. Only one letter from him since Monday, and no report-of work beyond Albany. * * * They will have to discharge him and try it again, which will probably take the wind out of their sails and all the fight out of them as well. From what I hear the latter is pretty well squeezed out' of them now. On Monday I am to see Guthrie, and yon bet I will feel pretty independent. I know where I stand better than they do. * * * They are dying fast, much faster even than Roberts, and I hardly think six months will see them in the ‘biz.’ If we hold Finzer and your old trade they won’t last even that long after I leave.”

From the letter of November twenty-second we take the following : “ But we doubt it. Of course, they may be foolish enough to do so. No one can tell what fools ma/y do. * * * Please, in all first orders, don’t fail to give prices, terms, &c., as soon it will be impossible for writer to have access to B. B. & “Co.’s to get these particulars. * * * No orders at 53.”

These letters fairly indicate the general character of those received by the court which defendants insist were immaterial. That Yon Micheroux was as blameworthy as the other two defendants appears from his letters generally, and particularly in one of November 15, 1892, immediately after the order from Chicago, of which Seymour complains in his letter of November fourteenth. He writes: “ I think we better send at once our Trade Mark to Washington and ha/oe it registered. I thinlc you better communicate with Mr. /Seymour at 07ice, and that he shall attend to it at once without dela/y. Am sorry to see the order from Chicago in our enemy’s hands, but, of course, it cannot be helped for the present. By New Year’s all the agony will be at an end. All the trade has received our circulars. Nothing more to state. I am, dear sirs.” Of course it is not pretended by the appellants that these letters did not show unlawful conduct on the part of Seymour, but they insist that they could in no way affect the defendants Boulger and Yon Micheroux, because they were not like Seymour a partner in the firm of Baldwin Brothers & Co., but merely employees, and so could leave the business at any time and engage in business on their own account. That Seymour’s conduct was of such a character as would cause a court of equity to restrain him from committing further frauds of the character described in the letters written by him, and charge him with the damages resulting from the fraudulent acts already committed, is so well established as not to require citation of authority. The reason for it is well stated in Holmes v. Gilman (138 N. Y. 369). At page 377 the court said : “ That a partner occupies a fiduciary position with regard to his co-partners and the funds of the firm, and will not be permitted to make a personal profit out of the use of such funds, is, I think, clearly established. * * * Although partners do not, in the strict sense of the term, occupy the position of trustees towards each other and towards the firm funds, yet the position is one of a fiduciary nature, calling for the maintenance and exercise of the greatest good faith between them. Such a relationship authorizes the same remedy on behalf of the wronged partner as would exist against a trustee, strictly so-called, on behalf of a cestui que trust.”

Now, while Yon Micheroux and Boulger were not partners of Baldwin Brothers & Co., and did not stand in a fiduciary relation to plaintiffs, still they were co-operating, with Seymour in his efforts to perpetrate a fraud upon his partners, with full knowledge on their part that such was his intent, and that it was all to be done in order that they as well as Seymour should profit at the expense of Baldwin Brothers & Co. The court had the power to restrain them as well as Seymour from either further proceeding with or consummating such illegal scheme. For the damages' sustained by plaintiffs because of Seymour’s conduct, the other defendants were participants and likewise chargeable. This proposition is supported by Emery v. Parrott (107 Mass. 95). We quote as especially applicable to the facts of this case, from the opinion as follows: “ The case of the defendant Head stands somewhat differently, but is governed by the same general principles. He did not stand in any fiduciary relation to the plaintiffs. But he knew the position of Parrott, and became the partner of Parrott, uniting with him to effect a sale of the property to Parrott and the plaintiffs for the sake of dividing with .Parrott the secret commission which the owner of the property had agreed to pay for effecting the sale. He was thus fully cognizant of the illegal conduct of Parrott, and co-operated with him in inducing the plaintiffs to make the purchase. He participated in the profits of the transaction; and the court are of opinion that he, as well as Parrott, must disgorge the secret gain which they thus jointly obtained and divided with each other.” *

If this position be well taken, it follows that evidence, tending to show knowledge on the jiart of Von Micheroux and Boulger of the fraudulent practices in which Seymour was engaged for their mutual benefit, was properly admissible against them.

Such was the purport of these letters. We have not, of course, referred to all of them, but to enough at least to point out that from day to day Seymour was putting them in possession of accurate information touching the steps being taken by him to mislead and defraud his partners. The letters were all of the same general character, and they had the effect to inform the defendants Boulger and Von Micheroux of substantially everything that was being done by Seymour, which was in violation of the relation existing between him and the other members of the firm of Baldwin Brothers & Co., and, therefore, the evidence was material. There were a number of exceptions taken to the admission of evidence, but we do not think they call for a reversal of the judgment.

The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


author: Van Brunt, P. J.:

text:
    In the Matter of Opening and Widening Riverside Avenue Between One Hundred and Twenty-seventh Street and Claremont Place. Daniel F. Tiemann and Another, Appellants. The Mayor, Aldermen and Commonalty of the City of New York, Respondent.

      Chapter 548 c/?1892 — power of the court to review the proceedings of the commissioners of appraisement appointed thereunder — the absence of one of the commissioners from hearings does not invalidate the proceedings — right of commissioners to view the property damaged — measure of damages.

    'The report of commissioners of appraisal appointed under tile provisions of chapter 548 of the Laws of 1892is subject to the supervision of the General Term of the Supreme Court. The mere fact that an application to the court for the confirmation of the report of the commissioners is required by the provisions of such act, shows that it was the intention of the Legislature that the court should have control and supervision over the action of the commissioners appointed thereunder.
    'The fact that a commissioner, appointed under the provisions of chapter 548 of the Laws of 1892, was not present at most of the hearings of the commissioners, does not invalidate the proceedings taken under such act.
    It was the intention of the Legislature that the commissioners of appraisal, provided for by chapter 548 of the Laws of 1892, should proceed in the same manner in which similar-commissioners in street opening proceedings were required to proceed by law.
    The commissioners have authority to view the premises affected if they consider it necessary for the purpose of appraisement.
    After the hearing, only, they have authority to make such corrections or alterations in their assessment as they or any two of them find to'be just and proper, and after such corrections or alterations their report is to be presénted to the court for its action.
    Where a strip of fourteen feet is taken, for the purpose of widening a roadway, from the lots abutting on one side of the road which is sought to be widened under the authority of chapter 548 of the Laws of 1892, the proper measure of damages to be awarded by the commissioners to the owners of the lots from which such strip is taken is the difference between the value of what remains of the lot after the taking of such strip therefrom and the value of the whole lot prior to the taking thereof. «
    Appeal by Daniel F. Tiemann and another from an order of the Supreme Court, made at the New Yorlc Special Term and entered in the office of the clerk of the county of New York on the 2d day of July, 1894, confirming tbe report of commissioners of assessment and estimate, appointed under the provisions of chapter 548 of the Laws of 1892, in so far as such order affects the property of the appellants.

      Trumcm H. Baldwin, for the appellants.

      John, P, Dunn, for the respondent.
   Van Brunt, P. J.:

In 1892 the Legislature passed an act (Chap. 548) providing for the taking of land for the widening of Riverside drive, between One Hundred and Twenty-seventh street and Claremont place, which widening consisted in taking fourteen feet from the lands on the easterly side thereof. Commissioners of appraisal were appointed in pursuance of said act, and they having reported, the report was confirmed, and from the order of confirmation this appeal is taken.

There is no question about the fact that the report of the commissioners of appraisal is subject to the supervision of this court. Otherwise there would be no necessity for any application to the court for confirmation. The mere fact that such application is required to be made shows that it was the intention of the Legislature that the court should have control and supervision over the action of the commissioners. '

In the case at bar it is urged that the awards were contrary to the evidence and were calculated upon an erroneous principle, and that the commissioners were guilty of misconduct, because they viewed the premises, which they had no authority to do. It is also claimed that the report should be set aside because one of the commissioners took very little part in the matter of appraisal.

In the consideration of these objections it is proper that they should be taken up in their inverse order of statement.

The fact that one of the commissioners was not present at most of the hearings does not seem to invalidate the proceeding. (Chap. 410, §§ 967 and 989, Laws of 1882.) In any event, our attention is not called to any statute which has any such effect.

The claim that the commissioners erred in viewing the premises is founded upon the meagre phraseology of the act under which the commissioners of appraisal acted. The act provides that the counsel to the corporation, on the petition of the commissioners of public parks in said city, shall apply to a Special Term of the Supreme Court in the first judicial department for the appointment of commissioners of appraisal to ascertain and determine the loss and damage to the owners of the property required for such widening in consequence of relinquishing the same to public use. All provisions of law in relation to notice of application for the appointment of commissioners of estimate and assessment in street opening proceedings, and in relation to hearings therein, the making and confirmation of the report therein, and the taxation of costs and the amount thereof, and the payment of awards made for lands taken, shall be applicable to proceedings under this act, provided that no assessment for benefit shall be made in such proceedings, but the expense incurred for the improvement shall be paid in the manner hereinafter provided.”

It was evidently the intention of the Legislature that the commissioners of appraisal should proceed in the same manner in which similar commissioners in street opening proceedings were required to proceed by law. The provision of the statute is that all the provisions of law in reference to notice of application for the appointment of commissioners in street opening proceedings and those in relation to hearings thereon, and as to the making and confirmation of the report, etc., should be applicable. It would' be impossible for the provisions of the statute in reference to hearings to be applied, without the proceedings which, under the street opening act, are preliminary to the hearing should have been also performed. In street opening proceedings it is provided that the commissioners may view the lands, and then they are to make a just and equitable estimate and assessment and to file proper maps; and then comes the provision granting to objectors an opportunity to be heard. Without these preliminary proceedings there would be nothing in respect to which the objectors could be heard; and it is the clear intent of the act that the commissioners, after the hearing only, shall have authority to make corrections or alterations in their assessment which the said commissioners, or any two of them, shall find to be just and proper, and after this, their report is to be presented to the court for its action. The commissioners, therefore, would seem to have had the authority to view the premises, if they considered it necessary, for the purpose of appraisement.

The next question to be considered is that of the damages which have been awarded for the taking of the property in question. "We see no reason for interfering with the conclusion of the commissioners in th..t regard. We think the claim advanced upon the part of the appellants is not well founded and that the commissioners adopted the true rule of damages, which w'as the difference between the value of what remained and the value of the whole lot, including the fourteen .feet taken for this improvement.

It is true that the commissioners had no right to take into consideration the question of benefits, as they were not authorized to levy any assessment for benefits. But the ordinary rule of damages is the difference between the value of the thing as damaged and its value in its original condition. This seems to have been the rule applied by the commissioners in the case at bgr, and fully indemnified the owners of the lands for the property taken.

The order appealed from should be affirmed, with costs.

Follett and O’Brien, JJ"., concurred.

Order affirmed, with costs.