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N. Y.) MAYOR, ETC., OF NEW YORK v. HARLEM BRIDGE, M. & F. RY. CO. 1073
We do not, however, agree with this contention, but think it very clear that when defendant was authorized to construct the extension in question by an amendment of a section of the original act such extension was subject to the obligations contained in such original act as amended.
In 1888 and 1889 the municipal authorities of New York took proper proceedings, and entered into a contract for paving the street where defendant's tracks lay with granite block pavement. Prior to that time there had been no complete or actual pavement of the street in any manner, but the same was substantially a dirt road. In some places a species of incomplete macadam had been laid, but only to the extent of filling up uneven spots in the road, and at the time in question the evidence shows quite conclusively that the street, and especially between the tracks of defendant's road, was soft and uneven, and not in good repair or in good order. The municipality served upon defendant a proper notice requiring it to pave, basing such notice and its complaint herein upon the obligations contained in section 3 of the statute incorporating it, as amended by the act of 1871, heretofore referred to, and the specific question, therefore, presented is whether the obligation resting upon the defendant to keep the space inside and outside its rails "in good and proper order and repair," etc., compelled it, under the circumstances, upon the requirement of the city, to lay a granite block pavement, and this question we have concluded to answer in the affirmative. While it may be admitted that the decisions and authorities are not uniform, either within this state or outside of it, upon the question whether such an obligation requires a railroad company to lay a new pavement, as distinguished from merely repairing an old one, we think that the controlling ones in this state decide such proposition in the affirmative.
In Conway v. City of Rochester, 157 N. Y. 33, 51 N. E. 395, the question was directly involved whether the Rochester Railway Company could be compelled to repave its tracks with asphalt in connection with the repaving of the remainder of the street with that material under the direction of the municipal authorities, there previously having been there a macadam or entirely different kind of pavement. The obligation so to do in that case rested, if at all, upon the provisions of section 98 of the railroad law (Laws 1890, p. 1112, c. 565, as amended) imposing upon every street surface railroad company operating its tracks in a city or village street to "have and keep in permanent repair that portion of such street, avenue or public place between its tracks, the rails of its tracks, and two feet in width outside of its tracks, under the supervision of the proper local authorities, and whenever required by them to do so, and in such manner as they may prescribe." It was held that 7S N.E.-68
the statute then leads to the conclusion that under section 98 of the railroad act it became and was the duty of the Rochester Railway Company to keep in permanent repair such portion of the street through which it passed as was within its tracks, and two feet in width outside, and that the local authorities of that city were vested with the authority of determining when the repairs should be made, and, thus empowered, the local authorities did determine that repairs should be made and the character of them. They decided that the entire street should be repaved and that the material to be used should be asphalt. This they had the right to do, and when this determination was made the statute intervened and commanded that the Rochester Railway Company should make the repairs thus ordered under the supervision of the local authorities."
We regard the obligations imposed upon the defendant in this case quite as broad as those which were outlined in the statute last referred to. In the place of a requirement "to have and keep in permanent repair under the supervision of the proper local authorities, and whenever required by them to do so," we have the provision compelling the defendant here to keep "in good and proper order and repair and conform the tracks," etc. While this statute does not itself specify, as in the case of the railroad law, that this shall be done under the supervision of the municipal authorities and in accordance with their specifications. that necessarily follows from the general duties and powers conferred upon such authorities by law. Therefore, when the proper authorities, in view of the condition of the street as shown to exist, decided that a granite block pavement should be laid, we think that the requirement for repairing and keeping in good order compelled the defendant to co-operate with the city, and put the space between its rails in the same condition as the rest of the street, even though that necessitated the laying of a new pavement. It has been held elsewhere by this court that an obligation, couched in substantially similar language, resting upon a railroad company, will compel it under proper conditions to lay a new kind of pavement. In Village of Mechanicville v. Stillwater & M. St. Ry. Co., 35 Misc. Rep. 513, 71 N. Y. Supp. 1102, affirmed 174 N. Y. 507, 66 N. E. 1117, it was held that a provision in defendant's franchise containing a requirement that the space between the rails, etc., should be paved by the railroad cam
pany with "small stone" and "that the same should at all times be kept in good condition," authorized the village to compel the railroad company to repave with vitrified paving brick; and in Binninger v. City of New York, 177 N. Y. 199, 212-214, 69 N. E. 390, the discussion extended to the subject of laying new pavements as distinguished from merely repairing old ones under obligations such as we have been discussing, and the views in such discussion expressed by the majority of the court confirm the decisions already cited. We, therefore, regard it as settled by controlling authority in this state that the plaintiff was entitled to require of the defendant to lay in its tracks granite pavement, and we find no difficulty in following such adjudication. The question of what shall constitute keeping a pavement in the tracks of a railroad company in good order and repair is to be determined somewhat at least by reference to existing and surrounding conditions, and in our judgment it would be altogether too narrow a view to hold that where a municipality had for sufficient reason decided to pave a street with asphalt or other new pavement a railroad might discharge its obligations to keep its part of the street in good order and repair by merely patching up a dirt road or some species of pavement which had become antiquated and out of condition and which was entirely different from that adopted in the remainder of the street. These views render
it unnecessary for us to consider or accept the somewhat narrower view of a special contract upon which the Appellate Division placed its decision of reversal.
The order should be affirmed, and judgment absolute ordered against defendant on the stipulation, with costs in all courts.
CULLEN, C. J., EDWARD T. BARTLETT, HAIGHT, VANN, and CHASE, JJ., concur; GRAY, J., absent.
Order affirmed, etc.
(186 N. Y. 339)
ULLMAN et al. v. CAMERON. (Court of Appeals of New York. Nov. 13, 1906.) 1. EXECUTION-SUPPLEMENTARY PROCEEDINGS
-RECEIVERS--RIGHTS OF ACTION.
Where a testamentary trust was invalid as to creditors of the cestui que trust, and, after the recovery of a judgment against him by plaintiff, most of the property embraced in the trust was converted into real estate, whereby the judgment became a lien upon it, and thereafter a receiver was appointed in proceedings supplementary to an execution issued on the judgment, plaintiff was entitled to sue to set aside the trust and enforce the lien, a contention that such suit should have been brought by the receiver as sole plaintiff being untenable. 2. TRUSTS-VALIDITY-RIGHTS OF CREDITORS OF CESTUI QUE TRUST.
Real Property Law, Laws 1896, p. 570, c. 547, § 71, provides that every estate or interest in real property is to be deemed a legal right,
except as otherwise prescribed by the statute. Section 72 declares that every person who, under any devise, is entitled to the rents and profits of real estate, shall be deemed to have a legal estate therein, subject to the same conditions as his beneficial interest. Section 73 provides that every disposition of real estate by devise shall be made directly to the person in whom the right to the possession and profits is intended to be vested, and that, if made to any person to the use of, or in trust for, another, no estate or interest, legal or equitable, vests in the trustee, but that such section shall not affect the creation of express trusts, as authorized by the statute. Section 129, page 579, provides that, where an absolute power of disposition, not accompanied by a trust, is given to the owner of a particular estate for life or for years, such estate is changed into a fee absolute, in respect to the rights of creditors. Held, that a testamentary trust, whereby the trustee was to pay the income to the cestui que trust for life and deliver to him the whole or any part of the principal to enable him to engage in any business or enterprise, whenever he might notify the trustee of his desire to posed to public policy, and invalid as against the engage in any business or enterprise, was opcreditors of the cestui que trust.
Appeal from Supreme Court, Appellate Division, Third Department.
Action by Morris Ullman and others against Albert L. Cameron, individually and
as trustee under the will of J. N. Cameron, deceased. Appeal by permission of a judgment of the Appellate Division (93 N. Y. Supp. 976), affirming a judgment overruling demurrer to the complaint. Affirmed.
The case made by the amended complaint is that the plaintiffs are judgment creditors of one Charles E. Cameron, with an execution returned unsatisfied and and a receiver appointed in proceedings supplementary to the execution issued upon their judgment. The judgment was recovered on the 11th of July, 1901. Early in January, 1900, one Jane N. Cameron, wife of the said Charles, died, leaving a last will and testament, the material parts of which are as follows:
"First. I hereby, give, devise and bequeath all of my estate, both real and personal of every name, kind and nature whatsoever, in trust for the uses and purposes hereinafter named, to Albert L. Cameron of Smithfield, N. Y., my executor hereinafter named.
"Second. I hereby will and direct the said Albert L. Cameron to pay over to my husband, Charles E. Cameron, semiannually, all of the income, rents, issues and profits of my said estate and so much of said principal sum as may be necessary for his support and maintenance for and during the term of his natural life.
"Third. I further will and direct that whenever the said Charles E. Cameron shall desire to engage in any business or enterprise and shall give notice thus to the said Albert L. Cameron that he desires the whole or any part of such principal sum for such purpose it is my will, and in that case I hereby direct the said Albert L. Cameron to pay over and deliver to the said Charles E. Cameron the amount so desired by him out of the
principal sum so given to him in trust by the first clause hereof.
"Fourth. I hereby give, devise and bequeath all the rest, residue and remainder of the said trust estate created by the first clause hereof which shall remain in the hands of said Albert L. Cameron as such trustee or executor after the death of my said husband to my sister, Lucy Morrison, and to Ann M. Cameron, my husband's sister, and to John T. Cameron, Albert L. Cameron and Delos W. Cameron, brothers of my said husband, share and share alike, and to their heirs and assigns forever. And it is my will and I hereby direct the said Albert L. Cameron to pay over and deliver such remainder as herein provided."
By the fifth and last clause Albert L. Cameron was appointed sole executor, with full power to execute said trust.
Mrs. Cameron, the testatrix, left some household furniture of small value and a bond and mortgage worth $3,500, but no real estate, although in July, 1901, the land covered by the mortgage was conveyed to Albert L. Cameron, "as trustee as aforesaid," in satisfaction of said bond and mortgage, and upon the same trust under which they were held. The remaindermen named in the fourth clause, as well as the receiver, were made parties defendant when the complaint was amended by order of the court after a trial, but no reason was set forth therein why the receiver should not have been made the party plaintiff. The relief demanded is that the trust purporting to be created by the will be adjudged void as to the plaintiffs, and the property covered by the alleged trust be charged with the payment of their judgment. There is also a prayer for an accounting.
The defendant, Albert L. Cameron, demurred to the complaint upon the following grounds: "(1) That the plaintiffs have no legal capacity to sue in that the title to the said cause of action is in the defendant, William E. Lounsbury, as receiver, and that the plaintiffs have no title to the same. (2) That there is a defect of the parties plaintiff in that the plaintiffs are not the proper parties to bring this action; that, if any cause of action exists, as alleged in the complaint, it belongs to the defendant, William E. Lounsbury, as receiver, and that he should be the party plaintiff, and that the defendant, William E. Lounsbury, as receiver, should not be made a party defendant to the said action. (3) That the complaint does not state facts sufficient to constitute a cause of action."
The judgment rendered at the Special Term, overruling the demurrer, was affirmed by the Appellate Division, but subsequently leave was given to appeal to this court, and the following questions certified for review: "(1) Should the demurrer of Albert L. Cameron, defendant, individually and as trustee,
be sustained upon the ground that the plaintiffs have not legal capacity to sue, in that the title to the said cause of action is in the defendant, William E. Lounsbury, as receiver, and that the plaintiffs have no title to the same? (2) Should the demurrer be sustained upon the ground that there is a defect of parties plaintiff, in that the plaintiffs are not the proper parties to bring this action; that, if any cause of action exists as alleged in the complaint, it belongs to the defendant, William E. Lounsbury, as receiver; that he should be the party plaintiff, and not be a party defendant to the said action? (3) Should the said demurrer be sustained upon the ground that the complaint does not state facts sufficient to constitute a cause of action?"
M. H. Kiley, for appellant. T. B. Merchant, for respondents.
VANN, J. (after stating the facts). That the plaintiffs were under no legal disability, such as infancy, lunacy, or the like, and hence had a legal capacity to sue, cannot be seriously disputed according to the authorities, which make a clear distinction between "incapacity to sue" and "insufficiency of facts to sue upon." Ward v. Petrie, 157 N. Y. 301, 311, 51 N. E. 1002, 68 Am. St. Rep. 790; Bank of Havana v. Magee, 20 N. Y. 355, 359.
The appellant, however, contends that the receiver is not a proper party defendant because he should have been the sole plaintiff, and that the respondents are not proper parties plaintiff inasmuch as the cause of action, if any is set forth, belonged exclusively to the receiver. If the trust is invalid as to creditors, title to the property covered thereby vested in Charles E. Cameron, the judg ment debtor, in January, 1900, when his wife died, at least so far as the claims of creditors are concerned. The plaintiffs recovered their judgment in July, 1901, and during that month the most of the property was converted into real estate through the conveyance of the land covered by the mortgage to the trustee. The plaintiffs' judg ment thus became a lien upon said real estate in July, 1901, and they had a cause of action in equity to set aside the trust as to them and enforce their lien. In February, 1902, the receiver was appointed, but that did not transfer the lien of the plaintiffs' judgment to him. He took the land subject to their lien. They still owned it, and had a right to enforce it. enforce it. They had a cause of action for that purpose which was exclusively their own, and in which he had no interest. They did not assign their judgment to him by procuring his appointment, nor did they thereby assign their lien to him, or estop themselves from enforcing it. Conceding that the property which was still personalty when the receiver was appointed vested in him with the exclusive right to appropriate it to the
payment of the plaintiffs' debt, still he had no right to the lien of the plaintiffs' judgment on the real estate, and hence they had a cause of action, which never vested in him. He could acquire a lien by filing a bill in equity, while they already had one but needed equitable aid to enable them to enforce it. They could sell under execution and sue afterwards to clear the title, but he could not. The parties named had different rights as to the real estate, and were entitled to separate remedies. Gere v. Dibble, 17 How. Prac. 31; Bennett v. McGuire, 58 Barb. 635.
The final question is whether the complaint sets forth a cause of action, independent of the questions already passed upon. That question was considered by the Appellate Division upon an appeal from a judgment rendered for the defendants upon the merits before the complaint was amended. Ullman v. Cameron, 92 App. Div. 91, 87 N. Y. Supp. 148. We adopt the language of the learned presiding justice, when, speaking for the court and referring to Charles E. Cameron, he said: "Now he was evidently entitled to the possession of such fund if he demanded it for the purpose of engaging 'in any business or enterprise,' and it seems to me that such a purpose is so broad and so personal to the beneficiary that it is equivalent to a direction that he is entitled to it whenever he asks for it." The intention of the testatrix, as we glean it from the will, was to give the property to her husband and yet keep it from his creditors. The trust was an obvious pretext for that purpose. There was but a single trust, for the gift was of all the property to one person in trust for one person during his life, with remainder over to others. The "uses and purposes" named as the object of the trust include the right of the beneficiary to take the corpus of the estate at will, by simply notifying the trustee that he wishes to engage in some business or enterprise. He is not obliged to actually engage in any business or enter upon some enterprise, but simply to say that he desires the property for either purpose, when the trustee has no discretion, but is required to pay over whatever is asked for, even to the extent of the whole fund. Although possession and title are thus subject to his control, it is insisted that, until he calls for possession, the property is not liable for his debts. The law will not endure this when creditors ask its aid to prevent it, but will declare the estate vested as to them as we did in Wendt v. Walsh, 164 N. Y. 154, 58 N. E. 2. Whether the trust should be sustained as to the persons named in the will, as distinguished from the creditors, need not now be passed upon. Unlike the case cited, which held the trust then under consideration to be a naked trust, in this case a trust term is defined, and it may be that any property left at the death of the chief beneficiary will pass
to the remaindermen and the intent of the testatrix thus carried out as far as possible. As to creditors, however, the trust cannot stand, for it is opposed to public policy as declared by statute and by the decisions of the courts. 1 Rev. St. p. 727; Real Prop. Law, § 71, 72, 73 and 129; Laws 1896, pp. 570, 579, c. 547; Hallett v. Thompson, 5 Paige, 583; Frazer v. Western, 1 Barb. Ch. 220; Wendt v. Walsh, supra; Chaplin on Trusts, 585. In Hallett v. Thompson, Chancellor Walworth declared that it was "contrary to sound public policy to permit a person to have the absolute and uncontrolled ownership of property for his own purposes, and to be able at the same time to keep it from his creditors." That case was cited and the
language of the chancellor substantially quoted with approval by Judge Rapallo in Williams v. Thorn, 70 N. Y. 270, 273, and it has received the approval of many courts in this state and elsewhere. The doctrine is sound and applies to this case, for, as to my creditors, property is mine that becomes mine for the asking, and no words can make an instrument strong enough to hold it for me, and keep it from them.
The order should be affirmed, with costs, and the questions certified answered in the negative.
CULLEN, C. J., and HAIGHT, WERNER, WILLARD BARTLETT, and HISCOCK, JJ., concur. GRAY, J., absent.
(186 N. Y. 334)
COOPER v. PAYNE. (Court of Appeals of New York. Nov. 13, 1906.) EVIDENCE PAROL EVIDENCE AFFECTING WRITINGS-ADMISSIBILITY-SALE.
Where a verbal sale was completed on April 3, 1903, written instruments executed May 26, 1903, and December 1, 1903, the former reciting a present sale and the latter reciting a sale on April 3d, and each containing provisions altering the time of payment and security to the seller, did not show the entire contract of sale so as to exclude parol evidence of a warranty by the seller.
Appeal from Supreme Court, Appellate Di vision, Third Department.
Action by Charles Cooper against Henry B. Payne. From a judgment of the Appellate Division (93 N. Y. Supp. 69) Third Department, affirming a judgment in favor of plaintiff, defendant appeals. Reversed.
Henry V. Borst, for appellant. Andrew J. Nellis, for respondent.
WERNER, J. The action is upon a promissory note which is one of several notes given by the defendant to the plaintiff for a part of the purchase price of a knitting machine sold by the latter to the former. The defendant's answer alleges the breach of an express warranty as to the character, qual
ity, and amount of work which this machine was designed to do. Evidence was offered to support these allegations, and excluded upon the theory that it was inadmissible to vary the terms of the contract, which the learned trial court regarded as having been wholly reduced to writing. The questions presented by the various exceptions to the rulings in this behalf might be discussed in detail and at length, but as the whole controversy depends primarily upon the nature of the contract, we shall consider the case broadly and briefly from that point of view. The negotiations between the parties began in November, 1902, when the plaintiff offered to sell to the defendant a knitting machine described in a submitted catalogue. This was followed in December by the plaintiff's acknowledgment of an order for a machine at the price of $1,255, payable "net 30 days." The machine in question was delivered to the defendant on the 3d day of April, 1903, and remained unused in the factory of the latter until May 26, 1903, when the parties signed in duplicate a written instrument reciting a present conditional sale of the machine by the plaintiff to the defendant, the reservation of title in the former, and the promise of the latter to pay for the same upon demand. From that time until December 1, 1903, the machine was still left in its shipping wrappings at the defendant's factory, and on the latter date the parties executed another written instrument reciting the sale and delivery of the machine on April 3, 1903, the nonpayment of the purchase price and interest, and providing for a new time and method of payments as witnessed by the notes upon one of which this action is brought. Contemporaneously with the execution of the last-mentioned paper and the notes in question, there were oral negotiations as to the setting up of the machine and getting it into operation. The plaintiff sent a man to start the machine, but according to the evidence of the defendant after various trials it failed to work, and this suit followed. The record contains much of the voluminous correspondence between the parties. It is interesting in its revelations of their practical attitude towards each other, and has some bearing upon the decisive question in the case, but on account of its volume we refrain from quoting it. It is enough to say that upon the record as made by this correspondence and the written instruments above referred to, the learned trial court held that the alleged express warranty relied upon by the defendant did not survive the execution of these writings under which it was assumed that the defendant had purchased and accepted the machine. The logical corollary of this view was the exclusion of all proffered oral testimony as to an express warranty, and the necessary effect of the rulings in that behalf was to deprive the defendant of any chance to make a case for
the consideration of the jury. Upon defendant's appeal to the Appellate Division the judgment entered upon the directed verdict was affirmed.
We think both of the learned courts below entertained an erroneous view of the two written instruments under consideration. They are clearly not the full and complete repository of the understanding of the parties. They are not only separate writings of different dates subsequent to the actual sale and delivery of the machine, but they are obviously supplemental to an oral contract pursuant to which sale and delivery were consummated. A glance at these writings in the light of the undisputed facts and the mutual attitude of the parties clearly reveals their very limited character. The first writing was dated May 26, 1903. The machine had in fact been sold and delivered on April 3, 1903, and the correspondence shows that the parties regarded it as a consummated sale as of that date. In view of these circumstances the mere recital in the contract of May 26th of a present sale is not controlling. Passing this recital and going to the substance of the document, we see that it is nothing more or less than an arrangement for extending to the defendant his time of payment, which was then overdue, and giving to the plaintiff security for his forbearance. The whole context bears out this view and the subsequent correspondence indicates that this was the understanding of the parties. In no aspect can any of its provisions be said to be inconsistent with an oral warranty of quality and workmanship. Even more unmistakable in its import is the instrument dated December 1, 1903. That recites a sale and delivery as of April 3, 1903, the continued indebtedness of the defendant to the plaintiff. and the promise of the former to pay according to the newly stipulated terms. It distinctly recognizes the existence of the contract of April 3d, and we look through it in vain for a single written word that will be contradicted or rendered nugatory by proof of an oral warranty. The more these two instruments of May 26th and December 1st are studied in connection with the circumstances surrounding their execution, the more evident it becomes that they do not purport to contain the full agreement of the parties, but are merely modifications of the original oral contract in respect of the terms of payment.
We, therefore, conclude that the case at bar is within the rule laid down in Chapin v. Dobson, 78 N. Y. 74, 34 Am. Rep. 512 and approved in Eighmie v. Taylor, 98 N. Y. 288. to the effect that the prohibition against the reception of parol evidence to vary or modify a written contract, cannot be invoked where the original contract was verbal and entire and a part only was reduced to writing. The application of that rule to this case is made so plain in Thomas v. Scutt, 127 N. Y. 133, 27 N. E. 961 that we may safely close our dis