Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

such preceeds without parting with any new con-paid, and all proceedings thereon to collect sideration. 2. Where a plaintiff, suing for a money judg- the same stayed, etc. The defendant appealed

, ment, prays that a judgment held by the defend to the general term of the supreme court, and ant against him be stayed, pending suit, on account that court reversed said judgment, unless the of defendant's insolvency, a new trial will not be plaintiff should consent to a modification and granted defendant for errors alleged to have occurred in admitting evidence as to the collateral reduction thereof to the value of the 40 $500

) curred in admitting evidence as to the collateral bonds of the Wasatch & Jordan Valley Railissue of defendant's insolvency.

. 3, Where matter pleaded as a defense is ruled road Company on the 30th of December, 1879, out as not constituting proper subject of defense, with interest'; the difference being $28,518. and plaintiff obtains judgment, such judgment is no bar to a subsequent suit on the cause of action |23, minus $21,504, equals $7,014.23. The formerly pleaded as a defense.

plaintiff gave the stipulation, and the defend

ant appeals to this court from the judgment Appeal from supreme court, general term. as modified. Of course, the plaintiff, having

It seems that Wyckoff sued and recovered consented to the modification, cannot coma judgment against De Graaf for not giving plain of the amount of the judgment. his notes to Wyckoff in consideration of Cephas Brainerd, for appellant. James Wyckoff paying the $20,000, (notes of Sco. R. Marvin, (Esek Cowen, of counsel,) for reville indorsed by De Graaf,) according to the spondent. agreement between Wyckoff and De Graaf. The notes so taken up were secured by $20,- POTTER, J., (after stating the facts as 000 (par value) railroad bonds, first lien on above.) The theory of this action is that dethe Utah & Pleasant Valley Railroad held by fendant, wlio held security for the payment Wyckoff as collateral to the original loan of of obligations on which plaintiff was liable $20,000, (notes of Scoville indorsed by De as surety, surrendered those securities, and Graaf.) These original notes and collateral took less valuable securities instead, without agreement were dated on or about October the consent of the plaintiff, whereby plain11, 1879. Before these notes matured, to- tiff was compelled to pay said obligations wit, December 30, 1879, at the request of without the benefit of the surrendered secuScoville, who was primarily, and as principal, rity to reimburse himself for such payment, liable for the payment of the notes, De Graaf and thus was damnified. These allegations consented, in writing, that Wyckoff might are denied by the defendant, who, moreover, surrender these Utah & Pleasant Valley bonds sets up as a bar to this action that, in an acfor 40 first mortgage bonds of the Wasatch tion brought by him in the court of common & Jordan Valley Railway Company bonds, in- pleas in the city of New York, to recover of stead of the 40 bonds Wy«koff then held of plaintiff upon such obligations, the plaintiff the Utal & Pleasant Valley Railway Com- in this action interposed such surrender of pany on the loan to C. W. Schofield of $20,- security as a bar; and that the plaintiff is 000 with Do Graaf's indorsement. The first therefore estopped in this action by the judgseries of notes was renewed, and others given ment in that action, as such matter was, in their stead, at the request of De Graaf. or might have been determined in that action. Wyckoff was induced to take up this second The findings of the trial court as to which series at the request and upon the promise of bonds were to be substituted for the Utah & De Graaf that he would give his notes to Pleasant Valley bonds, and as to other essenWyckoff at four months. De Graaf did not tial allegations of the complaint, are concludo so, and for such failure was sued by Wyck- sive upon this court, and must stand, unless off in the court of common pleas of the city there was practically no evidence to support of New York, and a recovery had for $22,- the finding, or the court committed an error 100.26, which judgment was reversed by the in receiving or rejecting evidence which bore general term of the common pleas, but af- upon that question. The gist of this action firmed in the court of appeals. 98 N. Y. 134. is the unauthorized substitution of Wasatch The misappropriation of the bonds herein- & Jordan Valley bonds for Utah & Pleasant after mentioned, and constituting this cause Valley bonds. The evidence of the receipt of action, was set up to the action of Wyckoff of the Utah & Pleasant Valley Railroad in the common pleas; but the defense was ex- bonds as security for the $20,000 loan by cluded, upon objections by Wyckoff. After Wyckoff to Schofield, represented by the judgment was recovered as aforesaid by notes, and the consent of De Graaf to the Wyckoff against De Graaf, De Graaf sued substitution of the first mortgage bonds of Wyckoff in the supreme court for the misap- the Wasatch & Jordan Valley Railroad, was propriation of the bonds, (Utah & Pleasant in writing, and was, to my apprehension, so Valley,) and incidentally, in that action, free from any ambiguity of meaning, or liaasked special relief as to the execution of the bility to misapprehension, in respect to the Wyckoff judgment on account of Wyckoff's kind of bonds to be substituted, as to exclude insolvency and non-residence, etc. De Graaf any parol or explanatory evidence. The conrecovered a judgment in this action for dam- sent was for first mortgage bonds, not in ages for misappropriation, based upon the name, but in fact. The bonds received by value of the Utah & Pleasant Valley bonds Wyckoff as substitute were in fact second lien on December 30, 1879, as the rule of dam- bonds, and so not covered by De Graaf's writages, and by that valuation the judgment in ten consent. There were other exceptions Wyckoff's action against the plaintiff was upon the part of defendant, many of which are effectually answered in the opinion of | upon the trial as a counter-claim. Bates v. Justice DANIELS at general term, and there- Rosekrans, 37 N. Y. 409. Hence the record fore require no further attention, such as the in the Wyckoff action against the plaintiff evidence of value of the various issues of could not create an estoppel to that matter bonds of these railroads.

forming the subject of this action. We think The refusal of the court to allow proof by there is no other course open to us, leading Schofield whether the surrendered bonds went to a different result. The judgment should into the sale made to the syndicate, or to the be affirmed, with costs. All concur, except witness, and whether the plaintiff received FOLLETT, C. J., not voting, and HAIGHT, the proceeds of these bonds after being sold J., not sitting. to the syndicate or to Schofield, would be

(117 N. Y. 471) matters of inference by the witness, and, if

In re UNDERHILL. answered in the affirmative, would be immaterial, unless it was shown that plaintiff (Court of Appeals of New York. Dec. 10, 1839.) parted with no other consideration to get the EXECUTORS-ACCOUNTING-SURROGATE'S POWERS. proceeds of them. To have made this evi- Under Code Civil Proc. N. Y 2472, which dence pertinent or proper, the defendant gives the surrogate power to con: rol executors,

settle their accounts, and enforce the payment of should have proved, or have offered to prove, debts and legacies, a surrogate has no jurisdiction, that the plaintiff got the proceeds in his orig- in settling the accounts of an executor, to order a inal right thereto, and without parting with legatee to repay to the executor money which has

been paid him in excess of his just share. any new or other consideration therefor.

The exception to the evidence in relation Appeal from supreme court, general term, to Wyckoff's insolvency was not upon the second department. main issue in relation to plaintiff's right to A. R. Dyett, for appellant. Alex. Thain, recover damages for the misappropriation of for respondent. the bonds, but upon the collateral or inci- PECKHAM, J The order in this matter dental remedy employed to stay the judgment must be affirmed. The original proceeding obtained by Wyckoff against the plaintiff un, was one for the judicial settlement of the actil the plaintiff should have opportunity and count of the executor before the surrogate. the right to apply the damages he might re- This officer can exercise only such jurisdiction cover in this action upon or towards the pay. as has been specially conferred by statute, toment or liquidation of that judgment. It could not affect the main issue between these gether with those incidental powers which

may be requisite to effectually carry out parties, and could have worked no harm to the jurisdiction actually granted. Riggs v. the defendant in the substantial contention. Cragg, 89 N. Y. 489, and cases there cited. All the plaintiff needed to prove in this respect The Code of Civil Procedure now regulates was that defendant was insolvent; and that an accounting by executors or administra

; was sufficiently proven by the introduction tors, although its provisions are mainly a of the judgment against Wyckoff, and the transcript from the Revised Statutes upon return of an execution unsatisfied. It cer- the subject, as amended or enlarged by partainly cannot be necessary or wise to grant a ticular statutes passed since their adoption. new trial of the merits of this case for such The decree upon an accounting of this nature

is conclusive upon each party to the proceedThe remaining matter for consideration ing who was duly cited or appeared, and uprelates to the defense set up by plaintiff to on every person deriving title from such Wyckoff's action, that the latter had misap- party, as to the validity of a debt, claim, or propriated the Utah & Pleasant Valley Rail- distributive share of the estate, if not disroad bonds, and the disposition made of that puted, or where, if disputed, it has been esdefense. The defendant sought to bar the tablished. Code Civil Proc. § 2743. It is plaintiff from a recovery in this action for claimed that in establishing the validity of the reason that the claim in this action was a debt, claim, or distributive share, if dissubstantially the plaintiff's defense in that puted, the surrogate must have power to deaction, upon the well-established principle termine, not alone the existence thereof, but that that matter was, or might have been, that he can also decree its payment; and that litigated in that action. The answer to that hence he had in this case jurisdiction to encontention is that such matter was put for- ter the decree providing for the repayment to ward as a defense, and not as a counter the executor by the legatee of the amount claim. As a defense to that action, which which the executor had overpaid him. I do was for a breach of contract, this matter, not think such a result follows. It is to be which was for misappropriating of securities, remembered that it is the executor who is would be totally unavailable; and when the rendering his account, and that all those plaintiff, Wyckoff, objected to it, it was ruled who are cited as interested in such accountout as a defense, and such ruling must have ing are cited because of such interest, and to been approved by this court in affirming the that extent are parties thereto, and are bound judgment Wyckoff obtained upon that trial. by all that is properly decided thereon.

But The matter was not in fact, and could not, it is as parties to the accounting that they as matter of law, have been presented as a are before the court, and they are not in any counter-claim; for it was pleaded in form simply as a defense, and was not even offered

1 Affirming 6 N. Y. Supp. 133.

reason.

sense parties to a proceeding to enforce the claimed that under section 2472 of the Code

1 collection of an alleged debt existing, in fa- | the surrogate had this jurisdiction, particuvor of an executor, against a person who is larly under subdivisions 3, 4, and 6 thereof. thus cited, because the proceeding is in no Subdivision 3 gives him power to direct and sense of such a nature. The claim that the control the conduct and settle the accounts executor makes of an alleged overpayment by of executors, etc. Nothing is therein stated him to a legatee is a matter, so far as a re- as to the scope of such settlement, or the covery thereof by the executor is concerned, character of such accounting. An accountbetween him and such legatee. In his ac- ing is provided for in the succeeding sections counting the executor charges himself with of the Code, and the settlement of the acall the assets of the estate which he has re-counts is made by the decree; and the effect 'ceived, and credits himself with the payment of the decree therein is declared by the secof such items as he thinks are chargeable to tion already discussed. Subdivision 4 gives the estate. In deciding upon the allowance him power to enforce the payments of debts of such items the question determined is and legacies. This does not mean a power whether they are or are not proper charges to enforce payment of an ordinary debt dne against the estate; and, unless the estate to the executor from a third party. No one were liable to pay any particular item, it has supposed it was intended by this subdishould not be allowed, notwithstanding the vision to invest the surrogate with jurisdicpayment had been made by the executor. tion, as a common-law tribunal, to enforce The debt or claim which is spoken of in the the collection of debts due the estate or the above section as undisputed, or, if disputed, executor. It had reference more to the enestablished, is one due from the estate, and forcement of payment of a debt due from the not from a third person to the executor; and estate. The same power to enforce payment the decree determines to whom the debt is by the executor of a legacy is given in the payable, the amount thereof, and all other same subdivision, and as part of the same questions concerning the same. The decree sentence. It, at all events, does not include also determines as to the validity of a dis- such a case as this. The sixth subdivision tributive share of the estate. The amount gives him power to administer justice, in all of the distributive share due any particular matters relating to the affairs of decedents, person must be determined by this decree; according to the provisions of the statutes reand therefore it is open to investigate, not lating thereto. What the jurisdiction is that alone the original amount of such share, is conferred upon the surrogate must be debut also what payments have been made up- termined by reference to the particular staton such original amount, in order that a final utes themselves. The subdivision in quesdecree may be made for distribution, and of sion confers no additional power or jurisdicthe amount thereof, to each person entitled tion upon him; but it enjoins upon him the to any share. An overpayment made by the duty of so exercising the powers conferred executor to any person entitled to a distribu- upon him by the provisions of the statutes tive share does not in any way diminish the that justice shall be administered. It is said amount of the estate which the law says is that it would result in an unnecessary amount in the executor's hands for distribution. The of litigation to hold that the surrogate has law does not recognize any such overpay- not the power contended for, as in such case ment, and does not, therefore, permit the ex- the executor must sue the legatee, and go inecutor to credit himself with the amount of to another accounting, for the purpose of the excess. In legal contemplation, the sum showing the overpayment; or, if the decision is in the hands of the executor as assets of of the surrogate as to the amount should be the estate, which he must pay over to the regarded as res adjudicata, then it would be parties entitled thereto. An affirmative a case of an action at law to recover back an judgment in favor of the executor, against excess of payment, the amount of which was the person to whom he made the overpay- already conclusively established by the surroment, to recover such excess, is a totally dis- gate's decree, and therefore a party ought tinct matter, and is not embraced in the sub- not to be denied a remedy over at once against ject-matter of the accounting. There is no the legatee by the recovery of an alfirmative machinery provided in the surrogate's court judgment against such legatee in the proceedto enforce such a judgment. The decree is ing for an accounting by the executor. The one in which the directions are for the exec-argument from the convenience of the remutor. It directs him to pay and distribute edy might well be addressed to the legisthe amount of the estate found in his hands lature. The only question for us is whether to the persons entitled, according to their re- such a remedy has been given. The surrospective rights; and the surrogate can en- gate determines the validity of the payments force obedience to such decree against the made by the executor, as between him and executor.

the estate; and, after such determination, the The statute is silent as to any directions amount of the estate for purposes of distributo be given third parties to pay debts they tion is also determined. That amount is, of owe the executor, so that he can collect in course, enhanced by disallowing any payment the estate, and distribute it. I think it was alleged to have been made by the executor not intended to provide any such mode for on account of the estate; and, where any the collection of debts due the estate. It is part of such payments has been disallowed,

v.22N.E.no.25—71

upon investigation by the surrogate, because ment act of 1877. The court, by virtue of such part was an overpayment, and where the the provisions of that act in relation to the legatee is a party to the accounting, it may, subject-matter thereof, was a court of genperhaps, be that the fact thus found should eral jurisdiction, to do all and every act rebe conclusive in any further litigation be- lating to the assigned estate, the assignees, tween the executor and legatee, where it assignors, and creditors, and, after the filing would come in question.

or recording of the assignment, the court was The surrogate bas jurisdiction to determine to exercise the power of a court of equity in the amount of these payments to the legatee reference to the trust, and any matters inwhich the executor shall have credit for, be- volved therein. Upon such broad and sweepcause upon the determination of that fact ing language as this, it was held that upon may depend the question of the amount of a petition of a creditor entitled to the fund, assets with which the executor is to be and upon notice to the creditor who had recharged, for the purpose of decreeing distri- ceived it, an order might be made by the bution thereof. But, because the surrogate court directing the receiving creditor to rehas power to determine this fact, it does not turn to the assignee the amount received by at all follow that he must therefore have him, so that the assignee might pay it over power to give judgment for the recovery by to the creditor entitled thereto. The point the executor from the legatee of the amount was regarded as one of some difficulty, notof the excess paid him by such executor. The withstanding the generality of such language. power to decide the fact as to the payment The case of Hyland v. Baxter, 98 N. Y. 610, springs from the power of the surrogate over is not in point. There the administrator had the accounts of the executor, and his power made certain advances for the support of the to allow the legal and disallow the illegal infants who were next of kin of the intespayments which the executor may have made, tate; and upon his accounting it was held and which he claims in his account. Having that the surrogate had power to determine, this power, it may well be that all facts nec upon equitable principles, a claim for such essarily determined by the surrogate, and advances made by the administrator, and that which are material in the course of the in- an allowance was proper where the expendivestigation which the surrogate may proper- ture would have been authorized by the court, ly make, should be regarded as conclusively had application been made in advance. The established by the decree which he makes in surrogate could do on final accounting what regard thereto. But it is plain that a power he might have done before, if application to compel a legatee to repay to the executor had been made, viz., authorize the expendithe amount which is determined he owes ture of a certain sum from the estate for the such executor is totally different from a de- support and maintenance of the infants. termination of the fact of such indebtedness, This power, it would seem, necessarily folas a mere incident to the stating of the ac- lowed from the jurisdiction of the surrogate count of the executor. This power to give over the accounting of the administrator; judgment and award execution for the col- for he must, on such accounting, determine lection of the money paid to the legatee in the question whether those expenditures were excess of the legacy I do not find bestowed properly made, and hence whether the adupon the surrogate; and it is of such a nat- ministrator was entitied to credit for them. ure that, without some language bestowing It is, however, urged by the appellants that, it upon this tribunal of peculiar and limited if there were no jurisdiction to incorporate jurisdiction, it would not otherwise possess in the decree the provision which the surroit. The surrogate, by virtue of his power to gate has set aside, such provision was but direct and control the conduct of executors, part of a decree upon a subject-matter over could, as I think, direct the executor to en- which he had full jurisdiction, and that any force the collection of the debt from the leg- mistake made in any of its parts was an eratee by a common-law action. It would, un- ror reviewable on appeal; but the whole dequestionably, be convenient for the surrogate cree must stand as it was entered until a reto possess the jurisdiction, as argued by the versal thereof, or a part of it, on such apappellant, because, in case of the insolvency peal. This is not such a case. It is an afof the executor, and hence his inability to firmative, special, and separate judgment, alput back into the funds of the estate the though in form contained in the decree; and amount which he had overpaid the legatee, it is a judgment which the surrogate was, as the judgment, and the execution thereon, we have seen, wholly without any jurisdicmight be at once entered and issued against tion to enter. He cannot obtain jurisdiction the legatee by direction of the surrogate, with to enter it by formally making it a part of a out further litigation. But it does not seem decree which he has authority to make; nor to us that the jurisdiction has been given. does he, by such a movement, change its esThe case of In re Morgan, 99 N. Y. 145, 1 sential character of a separate judgment liaN. E. Rep. 406, is cited as an authority in ble to be set aside on motion, as was done in favor of the existence of such jurisdiction. this case. We see no error in the disposition That case was decided upon the very broad of the case made by the courts below; and and general nature of the jurisdiction grant- their orders must be affirmed, with costs. ed the county court under the general assign-| All concur.

[ocr errors]

(118 N. Y. 38)

HIBBARD V. RAMSDELL et al.1 lease to the plaintiff; which rent was paid by (Court of Appeals of New York, Second Divis- plaintiff to the original lessor, his leirs or ion. Dec. 10, 1889.)

assigns. The defendant Ramsdell has paid LEASES-ASSIGNMENT.

under said contract two installments, leavA tenant for the life of another assigned his ing due thereon some $604.90. At the time lease after its termination, neither party knowing of the making of the contract between plainthat the lease bad expired. The assignce took pos- tiff and defendant, it was not agreed between session, and obtained a new lease from the reversioner. Held, that the original lessee could not the parties, either in the contract or othercompel an assignment to him of the second lease to wise, that the defendant should take any resecure the unpaid consideration of his assignment; newal of the lease of the land in the name, the relation between him and his assignee being or for the benefit, of the plaintiff, nor for merely that of vendor and vendee.

himself, or for any other. This is an appeal from a judgment of the Prior to 1879, the defendant Morgan Dix general term, fourth department, affirming a succeeeded to the rights of the original lesjudgment, rendered at special term, direct- sor, John L. Morgan. Said Morgan had ing the dismissal of the complaint.

been, prior to and at the time of the giving of The action was tried before a judge at spe- the lease in question, the proprietor of some cial term. The plaintiff asked for equitable five or six thousand acres of land in Brookrelief; that a certain lease, dated October 1, field, Madison county; and said land had 1880, made and executed to the defendant been leased to various persons, under similar Ramsdell, be declared to be made for the ben- leases to the one under consideration; and, efit of the plaintiff, and held as security for upon the expiration of these leases, if the the payment of the contract price upon the land was not sold by the lessor, it was the sale of the premises described in the lease by custom to give the tenant in possession, if the plaintiff to the defendant Ramsdell; and he was a satisfactory tenant, the first chance that said purchase price be adjudged to be a to take a new lease for the term of 10 years, lien upon the defendant Ramsdell's leasehold if he was willing to take the same and pay in the premises; and that plaintiff's interest the rent fixed therefor, which rent was debe declared prior to the interest of the defend termined by the appraisal of the rental value ant Ramsdell; and that said Ramsdell be cd- of the land made by the lessor or his agents; judged to account for the income and protits that in June, 1880, the agent of the defendof the premises; and that the plaintiff recover ant Dix entered upon the land in company judgment for the amount due upon the pur- with one Wait Clark, a former agent, and chase price of the premises.

found the defendant in possession, and apFrom the findings in the case, it appears praised the rental value thereof at $1,950, that on the 1st day of May, 1816, John J. and fixed the annual rent at $58.50, and inMorgan, who was seised in fee-simple of the formed the defendant that he must take a premises described in the complaint and in new lease for 10 years at that annual rent, or the lease, on that day executed a lease to Re- that the lessor would lease the land to another solved W. Fenner, during the lives of Chris- person. The defendant made no representatopher C. Fenner, John A. Fenner, and tions as to the existence or non-existence of Lydia Fenner, and the survivor or survivors the plaintiff's interest in the premises, or in of them, at the annual rent of $20; and there the original lease, and did not disclose the upon said lessee entered into the possession terms of the contract between plaintiff and of the premises. At the date of the execu- himself, nor were the terms called for by the tion of said lease, Christopher C. Fenner was agent, or alluded to in any manner.

In re15 years of age, John A., 7 years of age, and ceiving the rent for 1879 and 1880, the name Lydia, about 12 years of age; that, through of the plaintiff was entered upon the rentdivers mesne conveyances and assignments, book as the person who paid the rent. At the lessee's interest became vested in the that time, said Clark was an agent of the deplaintiff, Cyrus D. Hibbard; that on the 18th fendant Dix, kept the books with the receipt of February, 1879, said Hibbard and ihe de- of rent, and knew the relations between the fendant William C. Ramsdell entered into a plaintiff and the defendant in respect to said written contract by which the plaintiff agreed land under said contract. Shortly after the to sell, and Ramsdell agreed to purchase, the time when defendant's agent and said Clark said lease, in consideration of $800, to be made the appraisal and fixed the annual rent paid in installments on the 1st day of April, at $58.50, he drafted a lease of said premises, 1879, and six other installments annually, on reserving an annual rent of $58.50, and dethe 15th day of March, 1880, in subsequent terminable in 10 years from its date, and sent years, with interest until fully paid. At the it to the defendant; and the same was duly tine of entering into said contract, neither executed by the defendant Ramsdell and the party thereto knew that the lives upon which defendant Dix. the lease rested were not then in being. Un- Some time after October 1, 1880, the plainder said agreement the defendant entered in- tiff in this action learned of the execution of to the occupation of the premises. There- the lease from Dix to the defendant Ramsafter, and on May 1, 1879, and May 1, 1880, dell, and in 1882 demanded that the defendthe defendant paid the rent reserved in said ant Ramsdell pay the installments past due

and unpaid upon the contract, and that said 1 Afirming 41 Hun, 640, mem.

defendant Ramsdell assign to him the lease of

« ΠροηγούμενηΣυνέχεια »