thousand eight hundred and ninety-one." In 1896 condemnation proceedings were taken by the city of New York to acquire said No. 22 Oliver street as a site for the erection of a school house. To these proceedings Margaret Shelley was not made a party. The net amount of the award after the satisfaction of the incumbrances on the property, amounting to $9,800, was in February, 1897, paid to her husband, Michael Shelley, who thereupon deposited one-half of the award ($4.900) in the Washington Trust Company to the credit of his wife, as her share of the property. In 1898 Margaret Shelley drew the accrued interest on the deposit, and $400 on account of the principal. She died in February, 1899, leaving an estate consisting entirely of personalty. The plaintiff is the devisee named in the will, as well as the administrator of the estate of the deceased; and in this action, which is for a settlement of her accounts, claims that she is entitled, under the will, to the fund received by the testator in the condemnation. She has been defeated in this claim by both the courts below, and now appeals to this court.

The able opinion of the learned appellate division deals so fully with the question in dispute that there remains but little to be added by us. Had the deceased voluntarily alienated her property by deed, it is entirely clear, under the authorities in this state, that the devisee would have no claim to the proceeds of the sale. Adams v. Winne, 7 Paige, 97; Beck v. McGillis, 9 Barb. 35; Gilbert v. Gilbert, Id. 532; Vandemark v. Vandemark, 26 Barb. 416; Philson v. Moore, 23 Hun, 152; McNaughton v. McNaughton, 34 N. Y. 201. "If a testatrix devises real estate, and sells the same before the will takes effect, the proceeds of the sale will become personal estate, and no court can substitute the money received by the testatrix for the land devised." In Adams v. Winne, supra, and Beck v. McGillis, supra, the testator had taken back a mortgage on the devised land as security for the purchase money, yet it was held that the devisee was not entitled to the mortgage. only point to be considered, therefore, is whether a different rule obtains in the case of involuntary alienation, by operation of law, from that which prevails on a voluntary sale. Mr. Jarman asserts that the rule is the same in both cases, and the English decisions cited by him sustain the doctrine of the text. Jarm. Wills, p. 163. We see no such difference between a voluntary and an involuntary sale of the devised land as justifies a distinction in principle in the application of the rule that, where the testator has parted with the subject of the devise, all claim of the devisee is lost. While there is no authority on the point in this state (there is said to be none in the country), the question presented is not without analogy in the rule which determines in cases of intestacy the character of the proceeds of

The

sales by operation of law, whether they are to be considered as real or personal property. It is settled by a number of authorities that, if the sale be made by execution or judicial decree in the lifetime of the intestate, the proceeds are personalty, and go to the next of kin, while, if made after his death, they are real estate, and go to the heirs at law (Graham v. Dickinson, 3 Barb. Ch. 169; Denham v. Cornell, 67 N. Y. 556), except where the property belongs to an infant or to an incompetent person, in which case the proceeds retain their original character of realty (Sweezy v. Thayer, 1 Duer, 286; Horton v. McCoy, 47 N. Y. 21).

It is urged by the learned counsel for the appellant that the condemnation proceedings did not effect the revocation of the will, because there was no "other writing of the testator, declaring such revocation or alteration, and executed with the same formalities with which the will itself was required by law to be executed" (2 Rev. St. 64, § 42), nor any settlement, deed, or other act by the testator (section 47). It may be conceded that there was no revocation of Mrs. Shelley's will, though I very much doubt whether the deceased was not devested of title by her own voluntary act. As she was not a party to the condemnation proceedings, they were without force or effect as to her. If she lost her title, it was because, by her voluntary acceptance of the award, she estopped herself from claiming the property. Be this as it may, the case does not fall within the statute of wills. A specific devise or specific legacy may not be revoked, but, unless the property devised or the thing bequeathed is found in the estate of the testator at the time of his decease, the will is necessarily inoperative. The testatrix could not devise to the appellant an undivided half of the premises No. 22 Oliver street, for she did not own it at her decease; and the question here presented is not whether the devisee shall receive the property devised, but whether she shall receive the fund which proceeded from the condemnation of that property. With this latter question the statute of wills does not deal. It does not provide affirmatively that a conveyance or other disposition of bequeathed or devised property shall render the will in that respect ineffective. It assumes that principle, and in sections 45, 46, and 47 merely limits the operation of the rule by providing that in three cases, to wit, an executory contract, an incumbrance or mortgage, and a conveyance or deed altering the testator's estate, but not wholly devesting his title, the devise shall be revoked only pro tanto. As said by the chancellor in Adams v. Winne, supra, it left unchanged the existing law "that when the testator had converted real estate, which he had devised as such, into personalty, or had converted the subject of a specific bequest of personal property into real estate, there was a revocation of the will or an ademption of the

bequest." The correctness of this doctrine has never been challenged.

The judgment appealed from should be affirmed, with costs to both parties payable out of the estate.

BARTLETT, MARTIN, VANN, and WERNER, JJ., concur. PARKER, C. J., and HAIGHT, J., take no part.

Judgment affirmed.

(170 N. Y. 612)

SMITH V. COE et al.

(Court of Appeals of New York. April 1,

1902.)

Motion to amend remittitur and for reargument. Denied.

For former opinion, see 63 N. E. 57.

O'BRIEN, J. The learned counsel for the defendants has submitted two motions to the court in this case,-one to so amend the remittitur as to provide that the dismissal of the counterclaim be without prejudice to any action by the defendants against the plaintiff for breach of warranty, on the theory that such defense, not having been pleaded, was not actually passed upon at the trial. While we are not able to see how that amendment will benefit him, in view of the decision of the main questions, yet, as the effect of it is not now a question before us, we see no reason for denying the application, and so it should be granted.

The

The other motion is for a reargument, on the ground that certain points and authorities contained in the printed briefs and oral arguments were overlooked. It is but fair to say that in so far as the opinion in the case deals with the question of pleading, and in so far as it is asserted that the answer was not sufficient to present any issue of fact for trial, it should be modified. suggestions made by the learned counsel for the defendants on this motion have satisfied us that upon a fair construction of the answer, taken as a whole, and in view of the fact that no specific objection was made at the trial based upon its insufficiency, it should be treated in this court as tendering an issue upon some material allegations of the complaint. But it will be seen from the opinion that the decision of the case did not rest upon that point. What we considered as one of the fundamental questions was whether the sale was a sale by sample, and we adhere to the views expressed in the opinion on that point. It was a contract on the part of the plaintiff to manufacture for the defendants wheels of a certain type, according to the specifications and descriptions contained in the order. The mere fact that a particular wheel was shown to the buyers as a specimen of the goods to be produced, with certain changes and modifications, did not give to the contract the character of a

sale of goods by sample. The contention of the learned counsel for the defendants requires us to hold, as matter of law, that it did, and we still think that the contention cannot be upheld.

The other point is that, under the contract, the defendants had the right, as matter of law, to inspect and reject the goods at the place of their ultimate destination in Germany, where the defendants had contracted with their own vendee to deliver them. The plaintiff, so far as appears, had no relations whatever with the German firm, and the fulfillment of the contract was not dependent, in any respect, upon their action. The plaintiff's contract was with the defendants, doing business in New York, and he agreed to deliver the goods on board the steamer at the dock in that city, at such times and in such quantities as would enable the defendants to ship them to their customers in Europe. The contract will not bear any such construction as would enable the defendants, or their correspondent in Germany, to reject the goods after their arrival there, and thus leave the plaintiff with a large amount of goods upon his hands on the other side of the ocean. The cases cited in support of this motion do not sustain the defendants' contention in that respect. It cannot be held, as matter of law, either that the parties contracted for a sale of goods by sample, or that the goods were to be inspected in Europe, and there rejected if not found to be of such a character or quality as specified in the contract; and these propositions were decisive of the appeal.

The motion for a reargument should be denied.

PARKER, C. J., and GRAY, BARTLETT, HAIGHT, MARTIN, and VANN, JJ., con

cur.

(170 N. Y. 357)

HOLLISTER v. SIMONSON et al. (Court of Appeals of New York. April 1, 1902.)

RESCISSION OF CONTRACT-ACCOUNTING
SPECIFIC PERFORMANCE.

Where two parties enter into a joint veuture for the purchase of real estate, and one of them agrees to secure the execution of such documents as will protect the interest of his co-purchaser, and to make proper accountings. and he fails so to do, and procures a nominal sale to others in bad faith, without notice to his co-purchaser, the remedy of such co-purchaser is not an action for rescission of the agreement, as if void, and a recovery on an accounting of the money invested and damages. where there is no finding that he was induced by the fraud of his co-purchaser to enter into the contract, but by a suit to require a sale of the property, and the distribution of the proceeds over and above the incumbrances between the parties in accordance with their several interests, and such damages as plaintiff has sustained by the misconduct of his Copurchaser.

Bartlett and O'Brien, JJ., dissenting.

Appeal from supreme court, appellate division, First department.

Action by George C. Hollister against William H. Simonson and others. From a judgment of the appellate division (55 N. Y. Supp. 372) modifying the judgment in favor of plaintiff entered on report of a referee, plaintiff appeals. Dismissed.

The facts found by the referee are substantially as follows: Prior to December 14, 1891, the defendant Simonson and one Luie F. Vorhis, respectively, had claims in the nature of mechanics' liens upon the real estate for an account of the rents and profits of which this action was brought. Hollister, the plaintiff, had an interest in the claim of said Vorhis. Prior to said December 14th said Simonson and said Vorhis entered into a certain agreement, which, in substance, provided that Simonson, with moneys furnished in part by himself and in part by the proceeds of notes furnished by Hollister, should purchase said real estate at a sale under a foreclosure of mortgage then pending; said real estate to be thereafter sold, and the proceeds applied, after payment of lawyer's fees and other expenses, to the payment of the claims and advances of Vorbis, Hollister, and Simonson; the balance, if any, to be divided equally between Vorhis and Simonson. Part of the agreement between the parties was afterward reduced to writing, and was executed on January 6, 1892. Prior to the foreclosure sale, which took place on December 14, 1891, and at the time plaintiff advanced the first of the notes to carry out the common purpose, Simonson promised and agreed with plaintiff that the title in said premises should be taken in the name of a third person, as the representative of Simonson, and that Simonson would see that on such purchase such papers, agreement, or deeds should be taken or executed as should properly protect the interest of plaintiff, of which interest Simonson then and there had notice. Defendant Thomas was selected by Simonson as such representative. The said notes were advanced by plaintiff in reliance upon the said undertaking and agreement of Simonson. The agreement of January 6, 1892, was, at or about the time of its execution, duly assigned to the plaintiff as collateral security for advances made and to be made and for all indebtedness to the plaintiff by said Vorhis, of which assignment Simonson had due notice. On March 3, 1893, all the interest of Vorhis in said contract was assigned absolutely to plaintiff, of which assignment Simonson had due notice. In December, 1891, the referee on the foreclosure sale made, executed, and delivered a deed of the said land and premises to the defendant Thomas, who at once entered into possession of said premises as representative of Simonson, and continued in possession until the attempted sale in December, 1893. Dur

ing 1891, 1892, and 1893, pursuant to agreement, plaintiff and Simonson each advanced notes and moneys, which were applied by Simonson, together with the rents of the premises, to the payment of the principal and interest on certain mortgages on the premises, taxes, repairs, and other expenses. Simonson failed and neglected to take any deed, agreement, or paper from the purchaser, Thomas, adequate to protect the interest of plaintiff. Plaintiff, on learning this, in the fall of 1893, repeatedly requested Simonson to carry out his agreement in that regard, which he neglected and refused to do. And during the fall of 1893 plaintiff repeatedly asked for a full statement of the accounts, but Simonson neglected and refused to furnish proper and adequate accounts of the receipts and disbursements and payments made in carrying the said property. The last interview between the parties occurred on November 3, 1893. At that time the plaintiff was not in default, but had fairly carried out the obligations on his part, and was then ready and willing, and offered, in case Simonson would furnish the proper statement of accounts, and would have such instruments executed with respect to such lands as would protect the plaintiff's interest, to advance or cause to be advanced any further moneys requisite on his part to carry out the joint undertaking. Simonson promised to make up such a statement of accounts for delivery to plaintiff, but he failed and neglected to do so. Before December 14, 1893, Simonson directed the defendant Thomas to sell the premises. Neither Simonson nor Thomas took any steps to sea favorable sale of the premises. Thomas sold the premises for an inadequate consideration to the defendant Washington Winsor, who on the same day transferred them for a nominal consideration to the defendant William H. Duckworth, an intimate friend of Simonson. Thomas, at Duckworth's request, continued in possession of the premises after the sale, and collected the rents. The defendant Winsor made no examination of the title. He was introduced to Thomas by Duckworth. Neither the defendant Winsor nor the defendant Duckworth were purchasers in good faith for value. Said sale was fraudulent and void, and made at the direction of Simonson and in his interest, and the title to the property in fact remains in Thomas, as the representative of Simonson. The refusal of Simonson to carry out his agreement to obtain such papers or instruments as were proper to protect the interest of the plaintiff in the premises, and his neglect and refusal to furnish proper statements of account, and his action in directing a sale of the property without notice to the plaintiff, were breaches of his agreement, and violations of his obligations to the plaintiff thereunder, and amount to a repudiation by him of his contract. No no

cure

to be his share of the expenses. This does not conform to the decision of the appellate division, and there is no view which can be taken of the facts in this record which can justify it. The fact that it appeared upon the accounting that Simonson then had more money invested than plaintiff is not the controlling factor. The question is whether plaintiff was in default in November, 1893, after he had requested that Simonson carry out his agreement to obtain a deed or other writing from the purchaser adequate to protect plaintiff's interests, and also requested that Simonson furnish a statement of the receipts and disbursements, which requests Simonson wrongfully refused to accede to. With the title vested in another, with the certainty that only a suit in equity would preserve his rights, and with no accurate information as to the amount of money put in by Simonson, plaintiff closed his last interview with Simonson on the 3d of November, 1893; and at that time, according to the finding of the referee, the plaintiff "was not in default, but had fairly carried out the obligations on his part, and was then ready and willing, and offered, in case the defendant Simonson would furnish the proper statements of accounts, and would have such instruments executed with respect to such lands and premises as would protect the plaintiff's interest, to advance or cause to be advanced any further moneys requisite on his part to carry out the joint undertaking." Instead of doing this, Simonson caused the property to be sold in the following month, and by the purchaser conveyed to a grantee, who took the property at the request of Simonson, and in his interest. And thereafter plaintiff was never in default; for the conduct of Simonson constituted a breach of the contract, and the plaintiff was not called upon to proceed further. It was his right then to resort to a court of equity for the relief which it alone could give him from the gross fraud which his associate in the venture, Simonson, had attempted to perpetrate upon him. And the judgment of the special term, therefore, instead of burdening the plaintiff with a judgment of costs, and directing that he pay a specific sum of money to the man who had grossly wronged him, should have provided that upon the sale of the property the proceeds, over and above the incumbrances. should have been apportioned between plaintiff and Simonson according to the amount of their investments. But we cannot cure that error in this court, even if it should be held that we have jurisdiction; for, the appeal having been taken directly from the judgment of the special term to this court, if the appeal be authorized we are, by the section authorizing it, limited to a review of the decision of the appellate division, with which we agree, and which does not authorize the judgment of the special term. The plaintiff's

either in an appeal to the appellate division, or in an application to the special term to enter such a judgment as the interlocutory judgment of the appellate division called for, -a situation which would be in no wise affected whether the disposition in this court be a dismissal of the appeal or an affirmance of the judgment; for, in the latter event, by operation of section 1336 of the Code of Civil Procedure, the order of the appellate division would be affirmed, not the hostile judgment of the special term.

We are, however, inclined to the view that this judgment is not appealable directly to this court from the special term. Section 1336 of the Code of Civil Procedure authorizes such an appeal "where a final judgment is rendered in the court below, after the affirmance, upon an appeal to the appellate division of the supreme court, of an interlocutory judgment." In this case the original referee's report ordered final judgment, and such a judgment was entered thereon. The appellate division, instead of affirming that judgment, reversed that part of it which gave the plaintiff a money judgment against Simonson, and so modified the judgment in other respects as to make it an interlocutory Judgment. It cannot be said, therefore, that in this case an interlocutory judgment of the special term was affirmed upon appeal to the appellate division.

The appeal should be dismissed, but without costs.

BARTLETT, J. (dissenting). I am unable to agee with the disposition made of this case by the court. I am of opinion that the appeal taken from the special term directly to this court under section 1336 of the Code of Civil Procedure is regular. The plaintiff tried his case before a referee, and secured a large money judgment against the defendant Simonson. From this final judgment of the special term the defendant Simonson appealed to the appellate division, where it was adjudged, among other things, that said final judgment be made an interlocutory judgment, and, as so modified, affirmed. In pursuance of this interlocutory judgment, certain questions were sent to a referee, and on the coming in of his report a final judgment against the plaintiff was entered at the special term. From this judgment the plaintiff appealed directly to this court, under section 1336 of the Code, which provides that, where a final judgment is entered in the court below after the affirmance upon an appeal to the appellate division of the supreme court of an interlocutory judgment, such an appeal may be taken. It is true that, under the further provisions of this section, we can only review the determination of the appellate division affirming the interlocutory judgment. In other words, the questions before us are whether the appel