Volume 21 — New York State Reporter

<p>1. Evidence — Code Crv. Pro., § 829 — What admissible under this section</p> <p>The defendants are executors of the will of Benjamin L. Guión, who died in March, 1887, leaving among his papers the six bonds of the Union Pacific Railroad Company of $1000 each, with the coupons attached, which are the subject of this suit. These bonds came into the hands of the defendants with other papers of the testator, but were no part of his estate and were not put in the inventory by the executors. The plaintiff demanded the delivery of the bonds to her, but the defendants declined to deliver them, alleging that they belonged to Eleanor Hildick, her daughter, whereupon the plaintiff commenced this suit against the defendants in their individual capacity. On the trial of the action the defendant Williams testified that in the envelope which contained the bonds he found a receipt to plaintiff for the same in the handwriting of Mr. Guión, and that he gave the receipt to plaintiff. Afterwards the plaintiff was called as a witness in her own behalf and testified as follows: Q. How did you get possession of that receipt? A. I had it in my possession, I think, about two years; then I gave it to Mr. Guión. Q. For what purpose? To which the defendants objected on the ground of calling for a personal transaction between the deceased and witness. (Code, § 829.) The objection was overruled and the answer was: “For safe keeping.” Held, that the action was properly brought against the defendants in their individual capacity as custodians purely The decedent’s estate had no interest m them. The test to be applied in this case is that the estate of Guión would in nowise be affected by the result.</p> <p>2. Same—Admissibility on an interested party where the other is DEAD.</p> <p>That the spirit and purpose of section 829 of the Code is equality, and there was no violation of the letter or the spirit of the statute in admitting’ the testimony objected to.</p> <p>3. Same—Right to interplead party claimants under section 820 of Code.</p> <p>That the defendants took upon themselves a contest between the plaintiff and her daughter as to the ownership of the bonds. When the action was commenced they could have relieved themselves from liability by applying for leave to interplead the daughter pursuant to section 820 of the Code. Having gone to trial, relying on the daughter’s title as their defense, they should not complain if the same testimony were held admissible against them as would be admitted against the daughter.</p>

<p>1. Taxes and assessments—Review by certiorari—Right of resident of city of New York to introduce evidence of unequal valuation —Laws of 1885, Chap. 311.</p> <p>A resident of the city and county of New York cannot, in a proceeding to review the action of the commissioners of taxes and assessments, introduce evidence to establish the alleged unequal valuation of its property, as compared with the valuation of other properties on the same roll.</p> <p>3. Same—Laws 1885, chap. 311.</p> <p>When in the title of an act amending another, the title of the act pro posed to be amended is inserted, it is free from the constitutional objection that it does not express the subject to which it relates.</p> <p>'3. Same—Constitutional law—Laws 1882, chap. 410.</p> <p>The consolidation act is not unconstitutional for the reason that its title does not contain a reference to the acts amended by it.</p> <p>4. Laws 1885, chap. 311.</p> <p>A statute limiting a resident of the city and county of New York to a lesser number of grounds for reviewing an assessment than are enjoyed by ' the residents of the other counties of the state, is not obnoxious to the provisions of the first section of the fourteenth amendment of the Constitution of the United States. x</p>

<p>Appeal from order denying motion to vacate attachment.</p>

<p>Certiorari to review dismissal of relator.</p>

<p>1. Corporation—Assignment—Notice op application—When necessary —Trustee.</p> <p>The Columbian Insurance Company, becoming insolvent, made an assignment to trustees. Upon the death of the sole surviving trustee, an application was made for the appointment of a new one. . It was objected that no notice of the application had been given to the attorney-general, as required by the statute relating to proceedings for the dissolution of a cor poration and a distribution of its assets. Meld, that it was not a proceeding within the meaning of the statute relied on, but was an ordinary-application to appoint a trustee of an express trust, where there was no trustee in existence to execute it, and notice of an application therefor was not required.</p> <p>3. Rbceiyebs—Laws 1883, chap. 378, § 8.</p> <p>The act of 1883 applies to the appointment of receivers, and the distribution of the assets of a corporation after a receiver is appointed under the supervision of the court, and not where the execution of the trust is independent of the court.</p>

<p>Taxes and assessments—Jubisdiction—When cannot be vacated ob beducei?—Consolidation act, § 903—Laws of 1880, chap. ,550.</p> <p>■ An assessment for an improvement in the city of New York, confirmed after June 9, i860, cannot be vacated on the ground that it is illegal and void, and can he reduced only when the cost is in excess of the fair value of the actual improvement, an.d then only to ,the extent that the samé may be shown to have be.en in fact increased by reason of fraud or substantial error.</p>

<p>Appeal from order denying motion to vacate assessment.</p>

<p>Appeal from order denying motion to set aside verdict, and for a new trial.</p>

<p>Appeal from a judgment entered after a trial at the special term.</p> <p>The action was brought to compel the defendant to assign to. the plaintiff certain letters patent, and for other and further relief.</p> <p>The complaint alleged that the defendant and a certain corporation, known as the Standard Hydro Carbon Machine Company, had entered into an agreement by whiph it wag agreed, among other things, that the said company would purchase from said Jackson all the inventions he had then made, or should thereafter make, in relation to ° the use of gas in any form, and should pay him therefor in advance, by the issue and delivery to him of its entire capital stock as fully paid up; stock to the amount of $6,000,000.</p> <p>That the said company fulfilled its agreement with said Jackson, but that said Jackson refused to assign certain patents.</p> <p>The complaint further alleges that the plaintiff herein has succeeded to the rights of the esaid Standard Hydro Carbon Machine Company.</p> <p>The material allegations of the complaint were denied by the defendant, and certain affirmative defenses were set up.</p>

<p>Adverse possession—Code Civ. Pro., §§ 365, 372, sued. 1.</p> <p>Where the defense of adverse possession is set up, and the evidence shows that the plaintiff was not seized or possessed of the premises in dispute within twenty years preceding the commencement of the action, hut that they were claimed hy the defendant and were protected hy a substantial enclosure within section 372 of the Code, it constitutes adverse possession, and the question should have been submitted to the jury.</p>

<p>1. Unincorporated societies—When courts will not interfere in their internal dissensions.</p> <p>Courts of equity, in the case of internal controversies between members of unincorporated societies, will leave contending parties to the government of the constitution and by-laws of the society, and refrain from considering the merits of the controversies, providing the constitution and by-laws of the society have been strictly complied with, and no principle of law has been violated and no manifest wrong committed.</p> <p>3. Same—Right oe appeal to court oe equity.</p> <p>When a society has power to suppress and punish the misconduct of its own members, one complaining of such misconduct must resort to and exhaust the remedies provided in the association itself, through its constitution and by-laws, before appealing to a court of equity for relief.</p> <p>8. Same—When resolution oe no epeect.</p> <p>When a resolution, and proceedings under it, fail to comply with the essential requirements of the constitution and by-laws of a society, they are of no effect as regards a member against whom they are directed,</p> <p>4. Same—Punishment oe member.</p> <p>Before any punishment can be inflicted upon an offending member of such society, upon charges made against him, the charges must be proved by competent evidence.</p> <p>-5. Same—Appeal.</p> <p>A member of such society having voluntarily appeared before an appellate tribunal -in the society, must abide the event of that appeal before resorting to a court of equity for relief.</p>

<p>1. Practice—Judgment—Form of—Motion to correct—When should BE GRANTED—CODE ClV. PRO., §§ 121A-1221.</p> <p>In an action to foreclose a mortgage where there were several defendants, one of which demurred for misjoinder of causes of action, which demurrer was overruled, with privilege to answer in five days on payment of costs to plaintiff, one of the other defendants did not avail himself of the privilege, and plaintiff entered judgment against him, and for costs. Held, that there being other defendants, the plaintiff should have waited until all were in default, and then taken the proper judgment.</p>

<p>Appeal from judgment rendered at special term.</p>

<p>Appeal from special term order, denying a motion to vacate an order for the examination of the defendants before trial.</p>

Appeal by the executor from a decree of the surrogate-of Westchester county. The facts are fully stated in report of surrogate’s decision, 20 N. Y. State Rep., 140.

<p>1. Executors and administrators—Accounting—When petition for cannot be maintained against surviving executrix.</p> <p>A petition for tlie settlement of the accounts of executors cannot he maintained against a surviving executrix, who never received any of the assets, the same being exclusively managed and controlled by her co-executor and she not having been guilty of negligence or bad faith.</p> <p>2. Same—Settlement of accounts—Defense to petition for accounting—Failure to enter order.</p> <p>That the petitioner and the deceased executor accounted before the surrogate, the executrix joining therein, and that a full settlement was then made, while said executor was solvent, which settlement had been for' many years acquiesced in, and that by a stipulation in writing then made between the accounting parties, an o:der was to he entered approving the account, though such order was never entered, is a good defense to such a petition. The fact that such account was not approved and passed hy the surrogate is not material.</p>

<p>1. Trustee—When action by foreign trustee cannot be maintained.</p> <p>In an action by a trustee appointed by a court in the Dominion of Canada in the place of a deceased trustee of a tr-ust created by will of a resident of Canada. Held, that it is a well settled rule in New York that a foreign executor, administrator or guardian cannot sue in the courts of this state until the will is proven and the foreign appointment repeated; and this rule applies to a substituted trustee appointed by a foreign tribunal and deriving his authority solely from a foreign court and the provisions of foreign statutes. Following Curtis v. Smith (0 Blatch. C. C. R, 537).</p> <p>2. Same—Under what circumstances foreign trustee can maintain action.</p> <p>Under certain circumstances foreign corporations and receivers, and foreign assignees and trustees in proceedings in inuitum in bankruptcy, are permitted to maintain actions in the courts of New York under an application of the doctrine of interstate or international comity. Matter of Waite, 99 N. Y., 433.</p>

<p>Contract—Breach—When party in default may redeem property.</p> <p>The defendant had a contract with one Barnard and others for the purchase and sale of certain real estate. This contract with ail his rights and interest thereunder the defendant assigned to the plaintiffs, the latter agreeing to assume and perform all the obligations of the defendant therein to be performed. The plaintiffs failed to carry out their agreement. Various other agreements were entered into between the plaintiffs and defendant, mainly having regard to their first agreement, none of which were performed by the- plaintiffs. The Barnards finally obtained judgment against the defendant on their contract, and- the defendant having paid the sums of money therein adjudged, the Barnards executed a conveyance of the premises to him. Held, that the plaintiffs although in default in the matters covered by their several contracts with the defendant, might nevertheless acquire title to the premises by the performance of the various obligations and undertakings entered into by them.</p>

<p>Negligence—Stbeet bailboad—Liability oe cabbiebs to fassengbbs.</p> <p>Where the evidence was that the plaintiff’s injury was caused by a collision occurring between the car in which he was riding and a furniture van; that the defendant’s car was going very fast; that the horses attached to the van had passed over the track when the car ran into the van; that the plaintiff was riding inside the car, with the window open and resting his arm on the sill, but entirely within the line of the car: Held, that there was sufficient evidence to sustain a verdict in favor of the plaintiff.</p>

<p>Appeal from order denying motion to vacate attachment.</p>

<p>Appeal by the trustees from a decree of the surrogate of Rockland county.</p>