Volume 6 — E.H. Smith

The nature of the action and the facts, so far as material, are stated in the opinion. The spirit, as well as the letter, of the Mechanic’s Lien Law is that the owner must, in some form, consent to alterations or repairs upon property before any person, be he laborer, contractor, materialman or what not, can acquire any right respecting it.

This action was commenced in October, 1890, to enjoin the defendants from operating their road in front of the plaintiff’s premises, known as numbers 238, 240 and 242 South Fifth avenue, in the city of Few York, and to recover damages for interfering with the light, air and access thereto, by reason of the maintenance and operation of the defendants’ elevated road. The defendants had both legislative and municipal consent to build and operate it.

<p>1. Appeal from Board of Claims — Insufficient Award. An insufficient award by the Board of Claims cannot be interfered with by the Court of Appeals, unless upon the uncontradicted evidence, affected by no question of credibility, the award was inadequate, or where in ascertaining the damages the board adopted a wrong principle.</p> <p>2. Damages — Injury to Building by Water from Canal. The amount of damages recoverable from the state for injury to a building caused by leakage of water from a canal resulting from negligence of the state, its officers, agents and servants, cannot be limited to the actual outlay made by the claimant in the partial restoration of the building, but should include the whole expense necessary to restore the building in a reasonable manner, and, in addition thereto, any loss of rental value during the time required to make necessary reparations.</p>

Appeal by claimant from an alleged insufficient award of the Board of Claims made in her favor April 13, 1894, in a claim for damages alleged to have been sustained by her from the negligence of the state in the management of the Champlain canal. The facts, so far as material, are stated in the opinion. Claimant’s proof shows two items of damage— decrease in rental value caused by the dampness and water in the cellar and damages to the building caused by the water.

Appeals from orders of the General Term of the Supreme Court in the third judicial department, entered January 8, 1895, which quashed writs of certiorari in each of the above-entitled proceedings. Proceeding Flo. 1 was instituted to review the action of former Comptroller Wemple in canceling the sale of certain lands made to the state in 1877 within -the limits of the forest preserve for unpaid taxes.

. Appeal from an order of the General Term of the Supreme Court in the second judicial department, entered June 5,1895, which affirmed an order of Special Term denying a motion to vacate an order granting plaintiff leave to bring an action under section 1913 of the Code of Civil Procedure and to set aside and vacate all the proceedings subsequent thereto. The facts, so far as material, are stated in the opinion.

This action was brought to recover three months’ salary alleged to be due the plaintiff as a police justice of the city of Mew York.

<p>False Impbisonment — Constitutionality op Oh. 601, L. 1895. Chapter 601, Laws of 1895, abolishing the office of police justice in the city and county of New York and abridging the terms of office of its several incumbents, is constitutional. Its alleged unconstitutionality, therefore, furnishes no defense to an action of false imprisonment under a warrant issued by one assuming to perform the duties of such office after its abolition, and after his right to perform them had ceased.</p>

<p>1. Officer de Facto. There can be no officer de facto when there is no office to fill.</p> <p>3. Constitutionality op Oh. 601, L. 1895 — Officer de Facto. A warrant issued by a former police justice of the city and county of New York, after the abolition of his office and the right to discharge its functions had been terminated by chapter 601, Laws of 1895, which was a valid exercise of legislative power, cannot be upheld as the act of an officer de facto, when it does not appear that there was any open or notorious exercise by him. of the duties of the abolished office, or that ho was in the apparent possession of it, or had the reputation of continuing to fill it, although he claimed the statute was unconstitutional.</p>

Appeal by lieirs at law and next of kin of Samuel Westurn, deceased, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered July 14,1896, affirming an order of the surrogate of the county of Warren, which modified, and as modified, affirmed, an appraisal made of the estate of Samuel Westurn, deceased, under the Transfer Tax Law, and assessing a tax thereon.

This was an action of partition, and upon the trial thereof without a jury the court found that Andrew Cosgriffi was entitled to eighteen undivided sixty-fourths of the premises in question; that Wilson P. Foss and Jacob E. Conklin were each entitled to nine undivided sixty-fourths, and that William Dewey was entitled to twenty-eight undivided sixty-fourths.

The nature of the action and the facts, so far as material, are stated in the opinion. The directors represented, when they assumed office, that they possessed ordinary knowledge and skill, and that they would use ordinary care and prudence in the matters committed to them. (Hun v. Cary, 82 N. Y. 65; Brinckerhoff v. Bostwick, 88 N. Y. 52; 99 N. Y. 185; 105 N. Y. 567; Ouderkirk v. C. N. Bank, 119 N. Y. 263; H. S. M. Co. v. Ryan, 28 Am. & Eng.

The nature of the action and the facts, so far as material, are stated in the opinion. The court, having the entire property and estate of the refrigerator company under its control and in the hands of its own officer, issued an order restraining any creditor from bringing any action against such company to enforce its liability for debt, and thus excused the plaintiff from recovering judgment and having execution returned unsatisfied.

The nature of the action and the facts, so far as material, are stated in the opinion. The several transactions between the plaintiff and defendant were loans of money. This is evidenced by the bonds of plaintiff providing for the payment of specified sums at fixed dates, with interest semi-annually, and accompanied by assignments of securities as collateral thereto. They were, therefore, usurious.

This action was brought by plaintiffs upon a policy of insurance, to recover damages alleged to have been caused by fire to three dwelling houses in process of construction for them. The facts, so far as material, are stated in the opinion. Plaintiffs were only entitled to recover of defendant one-half of the damages caused to the foundations, etc., constructed by themselves, plus at the utmost one-half of the amount at the time of the fire paid by them .to the contractor.

Appeal by the New York Society for the Prevention of Cruelty to Children from a judgment of the Appellate Division, First Department, reversing the judgment of the Court of General Sessions of the City and County of New York, and remitting the •ease to the Court, with directions to order a new trial, under the provisions of the Code of Criminal Procedure,

The nature of the action and the facts, so far as material, are stated in the opinion. The order is appealable. (Edgecomb v. Buckhout, 146 N. Y. 332; 83 Hun, 168; Code Civ. Pro. § 1346; Pharis v. Gere, 112 N. Y. 408.) The pleadings present the single question whether the defendant discharged the plaintiff for legal cause. The answer admits the plaintiff was employed for one year. (Code Civ. Pro. §§ 500, 522; Teall v. C. El.

The nature of the action and the facts, so far as material, are stated in the opinion. The order is appealable. (Edgecomb v. Buckhout, 146 N. Y. 332; Code Civ. Pro. §§ 1346, 1347; Pharis v. Gere, 112 N. Y. 408.) This court has no jurisdiction to review the facts.

plaintiff entered upon the report of a referee. . The nature of the action and the facts, so far as material, are stated in the opinion. The appellant Moore, being a purchaser for value, is entitled to be protected under the Recording Act.

The- nature of the action and the facts, so far as material, are stated in the opinion. There is nothing in the opinion of the General Term or in the record which lias any tendency to disturb the disposition made of this case by the referee.

<p>1. Driving- Horses on Highway'—Duty to Control Them. A person driving horses upon a highway is not compelled by law to keep them absolutely under control, but is bound only to exercise that reasonable degree of diligence and care which a man of ordinary prudence might be expected to exercise under the same circumstances.</p> <p>2. Trial—Question por Jury—¡Negligence. A question of negligence should not be submitted to a jury where the facts are equally consistent with the presence or the absence of negligence, or where the jury could do no more than surmise as to the negligence of the defendant.</p> <p>3. ¡Negligence — Expert Evidence. Mere opinions of skilled horsemen, who did not see the occurrence, to the effect that a runaway team could be guided, if not stopped, are not sufficient to make a case for the jury as to the negligence of an experienced coachman, who testifies with some corroboration, and without any contradiction, except by such opinions, that he kept his runaway team on the right side of the road until a curve to the right was reached, when all his efforts could not prevent the team from going straight ahead across the roadway and running into another team, where it is also shown that the horses, which are conceded to be gentle, became unmanageable and ran away through fright caused by gravel or mud thrown against one of them by a passing trotting horse.</p>

Appeal, by permission, from a judgment of the General Term of the Supreme Court in the third judicial department, entered October 3, 1894, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at Circuit without a jury. The nature of the action and the facts, so far as material, are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff failed to prove a right to the possession of the property. (1 R. S. 859, § 6; Roberts v. Baumgarten, 110 N. Y. 381; Wallace v. Swinton, 64 N. Y. 188; Sedg. & Wait on Titles, § 791; Adams on Ejectment, 325; Richards v. Richards, 15 East. Rep. 294; Tyler on Ejectment, 485; Kelso v. Steiger, 24 Atl. Rep. 24.) The tax title was a complete defense to the action.

Appeal by the defendant, individually, and as comptroller of the city of Brooklyn, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered October 19, 1896, which affirmed an order and judgment awarding a peremptory mandamus in favor of the relator, the nature of which and the facts relating thereto are stated in the opinion.

By this action the plaintiff sought to recover compensation as an inspector of masonry on the new Croton aqueduct for the period of one hundred and sixty-three days at the- rate of $120 per month. The defendant, by its answer, admits the appointment of the plaintiff to said position, at the salary named, but alleges that he was subsequently discharged, and that since then he has performed no services and is entitled to no compensation. Further facts appear in the opinion.

<p>1. Public health law—Unlawful pbactice of medicine.</p> <p>Section 163, c. 661 of 1893, as amended by c. 398 of 1895, applies to persons who have been convicted of a felony before the passage of the act.</p> <p>2. Statute—Ex post facto law.</p> <p>As to such persons, the statute is not ex post facto law, but is constitutional.</p>

This action was brought to set aside certain conveyances of the property known as No. 11 East 29tli street, in the city of New York, as having been fraudulently made.

This action was brought to recover damages for an alleged breach of a covenant against incumbrances in a conveyance. One Davies, prior to March, 1887, was the owner of lots numbers 59, 61, 63, 65, 67 and 69 East One Hundred and Twentieth street, Hew York city. '3 March 9, 1887, he executed and delivered to William A. Cauldwell a mortgage on each of said lots, each of which was given to secure §5,000, or such part as should he advanced toward improving .the premises.

The nature of the action and the facts, so far as material,, are stated in the opinion. Tlie theory of the court at Special Term was erroneous. Specific performance should not be granted when the vendor, in consequence of a defect in his title, is unable to perform, because the court could not enforce its judgment, and also because it would be oppressive to the vendor. (3 Pom. Eq.

On the 30th of August, 1894, the relator, who for seven years had been a patrolman of the police force of the city of New York, was charged “with conduct unbecoming an officer.” The charge embraced the. following specifications: First, that he “ obtained leave of absence from 6 p. m. August 29, until 6 a. m. August 30,1894, by falsely representing that he was to attend a funeral from Kings Bridge to Kingston, N. Y., on August 29, 1894.” Second, that he “ failed to report at…

John Callahan died April 13, 1889, leaving a will whereby he gave his entire estate to Mary A. McGuire, whom he appointed sole executrix, and to whom letters testamentary were issued May 24th, 1889. Prior to his death, and on December 4th, 1888, he bid off at public auction a house and lot in the city of New York, belonging to Louisa Leach, for the sum of $17,200.

<p>1. "Water Rents Rot Taxes. Rents charged by a public corporation for water actually used by private consumers arc not in any just sense taxes so that persons against whom they are charged are entitled to notice and an opportunity to be heard before they are established.</p> <p>2. Water Rents Distinguished from Taxes — Covenant to Pay. Where the owner- of premises supplied witii water under a statute providing that the expense of construction and maintenance of the works shall be paid by water rents, if sufficient, and that any deficiency shall bo satisfied by a tax, applies to be furnished with water, subject to the rules under which the rates charged him, governed by the quantity of water consumed, had been established, his application is in effect an express covenant on his part to pay the rates charged; and, under such circumstances, rates so established and charged, based upon the quantity of water consumed by the taker, arc not in the nature of taxes, but are water rents established for water actually supplied to and used by the taker under an express contract to pay for it at the rates established.</p> <p>8. Water Rates Varying with Amount Used. When, under a statute conferring power to establish a scale of rents to be charged to and paid by private consumers for the use of water in a municipality, the question of consumption is one of the elements to be considered in determining the rates, it is not unreasonable for the water authorities to provide less rates when a large amount of water is used than where a small quantity is consumed.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. There was no evidence given sufficient to warrant the submission of the case to the jury on the question of either the defendant's negligence or the plaintiff’s contributory negligence.

05, that being the amount of money received by the comptroller from the excise commissioners of the city of Brooklyn for licenses granted by them under the excise laws of the state between the 1st of January, 1895, and the 1st of May, 1896. The relator is a private charitable and reformatory institution located in'the city of Brooklyn, incorporated by chapter 843 of the Laws of 1867, for the reception and retention of inebriates.

Appeals by the comptroller of the city of Brooklyn from orders of the Appellate Division of the Supreme Court in the second judicial department, entered March IT, 1897, reversing the orders of the Special Term in three cases, and directing the issue of peremptory writs of mandamus requiring the comptroller to pay the relators tlieir wages as armorers and janitor of armories in the city of Brooklyn. The questions involved ai'e similar and the appeals were argued together.

This is -a special proceeding instituted to review an assessment made upon the personal estate of the relator for the year 1896, pursuant to section 3, chapter 456 of the Laws of 1857.

This action >was brought to recover damages for alleged breach of covenants of quiet enjoyment and warranty. The facts, so far as material, are stated in the opinion. For reports of the case on former appeals, see 124 ¡N. Y. 212; 142 1ST. Y. 78; 147 K Y. 456. The defendant’s liability is absolutely fixed by the undisputed fact that Coe received the consideration mentioned in the deed to Fisher, or some part of it.

Cross-appeals from a judgment of the General Term of the Superior Court of the city of Mew York, entered July 19, 1895, which affirmed a judgment in favor of plaintiff entered upon a verdict directed by the court. This action was brought to recover damages against the defendant for its failure to deliver to the plaintiff possession of a bulkhead and wharf rights on the East river, under a lease. The facts, so far as material, are stated in the opinion.

Appeal by six defendants from a final judgment rendered at a Special Term of the Supreme Court in the first judicial department and entered December 24, 1894, with a notice of intention to bring up for review an interlocutory judgment rendered at Special Term June 26, 1894, and an order of General Term, made December 14, 1894, affirming the interlocutory judgment.

The nature of the action and the facts, so far as material, are stated in the opinion.

<p>Appeal from a judgment of the General Term of the Supreme Court in the third judicial department, entered January 14, 1895, which affirmed a decree of the Surrogate’s Court of Washington county.</p> <p>On the 26th of April, 1890, Harvey Randall, of the county of Washington, died intestate, leaving as liis next of kin two brothers, one of whom, Caleb Randall, was well acquainted with the affairs of the decedent, and five sisters, two of whom, Jane and Sarah Randall, had resided in Michigan for a long time and knew but little about the property left by their deceased brother. He left an estate consisting of real property worth about $16,000 and personal estate worth $52,563.51. On the 23d of August, 1890, Caleb Randall was appointed sole administrator, and he at once qualified and entered upon the discharge of his duties as such. September 17, 1891, the administrator voluntarily filed his petition for an accounting, and citations were duly issued for that purpose. Neither Sarah nor Jane Randall was cited, but subsequently, upon petition to the surrogate, they were allowed to intervene and become parties to the proceeding, against the objection of the administrator. TJpon the hearing in Surrogate’s Court it appeared that during the summer following their brother’s death, Jane and Sarah Randall, who were both well advanced in years, came east and entered into negotiations with Caleb Randall for a sale to him of their respective interests in the real and personal property of the decedent. On the 19th of August, 1890, four days before Caleb Randall was appointed administrator, he paid to Jane Randall the sum of $5,500 in cash, and in consideration thereof she executed and delivered to him a deed dated that day, reciting a consideration of $1,600, by which she conveyed to him, with warranty, all her interest in the real estate of Harvey Randall; and also an assignment duly signed and sealed by her, reciting a consideration of $3,900, whereby she “ sold, assigned, transferred and set over ” to Caleb Randall all her “ right, title and interest in and to all the personal property and estate of ” her deceased brother, Harvey Randall, “ as heir at law, next of kin, or otherwise,” and authorized the said Caleb Randall “ to collect and receive the same and every part and parcel thereof.” These papers were put in evidence upon the trial by the counsel for Jane Randall, and were received over the objection of the administrator. .A similar deed, dated October 7, 1890, from Sarah Randall to Caleb Randall, reciting a consideration of $1,600, and a similar assignment from Sarah to Caleb, of the same date, reciting a consideration of $4,400, were received in evidence in behalf of the administrator, who proved actual payment in cash of said sums, amounting to $6,000. Jane and Sarah both claimed that these papers were procured from them by Caleb through the false and fraudulent representation that all the property left by Harvey, both real and personal, was worth but $38,500, and much evidence was given by them tending to support this claim. Caleb gave a different version of the transaction, claiming that it was a fair purchase by him of the interests of his said sisters, made upon their urgent solicitation, and based upon what was regarded at the time as a fair valuation. The surrogate found that Caleb Randall, “ at the time of the death of the decedent, knew the character, quality and value of the property, both real and personal, of which” he “died seized,” and that “neither Jane nor Sarah * * * had any knowledge of the value ” thereof, “ except such as was acquired by them from the statements of the administrator, made to them together and separately; that in such statements, made to both Sarah and Jane, the said Caleb, for the purpose of obtaining an undue, unjust and wrongful advantage over them, represented to them, and each of them, that the value of both the real and personal estate was much less than it really was, and that it was of much less value than he well knew it to be, and that they, and each of them, relied on such representations.” By liis decree, the surrogate, without formally setting aside the assignments, ignored them, and required Caleb Randall, as administrator, to account upon the same basis as if they had not been made, but he credited the amount of the consideration recited in the respective assignments as of the date when the money was paid.</p> <p>Upon the settlement of the case, he was requested by- the administrator to find a that Sarah Bandall, a sister of decedent, who had been permitted to intervene as an interested party herein, has no interest in this matter, she having sold and assigned all her interest in the personal estate of said decedent prior to this accounting.” The surrogate refused to so find and the administrator excepted. A similar request was made as to Jane Bandall, which the surrogate also refused to find, and an exception was taken.</p> <p>Upon appeal to the General Term the decree of the surrogate was affirmed upon the ground that the administrator had no right to purchase the interests of Jane and Sarah Bandall for his own benefit; that the attempt so to purchase inured to the benefit of the remaining heirs and next of kin of the decedent, and, as they did not appeal, that the administrator had not been injured by the decree of the surrogate and had no cause for an appeal therefrom.</p> <p>Pending the appeal to the General Term Caleb Bandall died and James H. Bandall was appointed his administrator and duly substituted as a party. From the judgment of affirmance he appeals to this court.</p> <p>Surrogates and Surrogates’ Courts derive none of their jurisdiction or power from the common law, but must find the warrant for all their doings hi the Constitution and statutes. (Stilwell v. Carpenter, 59 N. Y. 414; Bevan v. Cooper, 72 N. Y. 317; Riggs v. Cragg, 89 N. Y. 479; In re Underhill, 117 N. Y. 471; Code Civ. Pro. § 2472, subds. 3, 4, § 2743.) The only tribunal which could avoid, vacate or set aside the assignments is one possessing general equity powers. (Bevan v. Cooper, 72 N. Y. 317; Harris v. Ely, 25 N. Y. 138; Kenny v. Jackson, 1 Hagg. 105; McNulty v. Hurd, 72 N. Y. 518; In re Wagner, 119 N. Y. 28; In re Pruyn, 141 N. Y. 544; Sanders v. Soutter, 126 N. Y. 193; In re Monroe, 142 N. Y. 484.) The law does not forbid, though it does not look upon with favor, a purchase by a trustee, directly of his cestui que trust. (Lewin on Trusts [8th ed.], 487; Perry on Trusts, § 195; Coles v. Trecothick, 9 Ves. 244; Gibson v. Jeyes, 6 Ves. 277; Randall v. Errington, 10 Ves. 426; Whichcote v. Laurence, 3 Ves. 750; Sanderson v. Walker, 13 Ves. 601; Ayliffe v. Murray, 2 Atk. 59; Brown v. Crowell, 116 Mass. 461; Graves v. Waterman, 63 N. Y. 657.)</p> <p>The sisters Jane and Sarah Bandall, not having been included in the citation, and having appeared, were properly permitted by the surrogate to intervene and become parties to the accounting. (Code Civ. Pro. §§ 2514, 2728, 2729, 2730, 2731; Clock v. Chadeagne, 10 Hun, 97; In re Martines, 11 Abb. [N. C.] 50; In re Read, 41 Hun, 95.) The administrator admitted his liability to account by his petition to the surrogate, and he cannot, therefore, set up as a bar that he had settled with the next of kin. (Kellett v. Rathbun, 4 Paige, 108.) The administrator was not discharged from accounting by a written receipt in full of balance as one of the next of kin, nor by a conveyance by one of the next of kin to him. (Harris v. Ely, 25 N. Y. 138; In re Read, 41 Hun, 95.) In this accounting the surrogate had jurisdiction to settle the account of the administrator, determine the amount to be distributed, the persons to whoni it should be distributed, and to direct the distribution thereof to the persons entitled to the same, according to their respective rights. (Code Civ. Pro. § 2472, subds. 3, 4, 6, § 2743; Harris v. Ely, 25 N. Y. 138; Tappan v. M. E. Church, 3 Dem. 187; In re Orser, 4 Civ. Pro. Rep. 129; In re York, 6 Civ. Pro. Rep. 245; In re Read, 41 Hun, 95; In re Underhill, 117 N. Y. 471.) The surrogate has jurisdiction to hear and determine any and all claims in which the executor or administrator is interested. The fact that others are jointly interested with him, or that he has acquired an additional interest by assignment after he became such, does not affect the authority of the surrogate to adjudicate in regard to it. (Shakespeare v. Markham, 72 N. Y. 400; 2 R. S. 88, § 33.)</p>

The facts, so far as material, are stated in the opinion. The amount awarded to the plaintiff’s attorneys is not in accordance with the undisputed evidence, but is directly contrary thereto. (Fowler v. Callan, 102 N. Y. 397; Tuttle v. Village of Cortland, 21 Wkly. Dig. 528; Root v. Van Duzen, 32 Hun, 63; Stahl v. Wadsworth, 13 Civ. Pro. Rep. 32; Kale v. Kale, 9 Civ. Pro.

<p>Appeal from an order of the General Term of the Supreme Court in the first judicial department, entered January 28, 1895, which reversed a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and granted a new trial.</p> <p>The plaintiff, as the receiver of the defunct Widows and-Orphans’ Benefit Life Insurance Company, commenced this action against the defendants’ testator to compel him to account for the property, assets and effects belonging to that company and which were in the possession, or under the control, of him and his associates, as the trustees of that corporation in the month of November, 1871: The plaintiff sets forth in his</p> <p>complaint a number of facts relating to that company and to the Mutual Protection Life Insurance Company; which bear upon their management and their financial condition in October, 1871. It shows that at that time the former company, with a capital of $200,000, had a surplus as to its policy obligations and that the latter company, with a capital of $100,000, was insolvent and unable to meet its policy obligations. It sets forth the proposal by the trustees of the “ Mutual Protection ” company to the trustees of the “ Widows and Orphans’ ” company of a scheme for the purchase of the capital stock of the latter company at the price of par in gold; the resignation, thereupon, of the trustees of the “ Widows and Orphans’ ” company; the election in their place of certain persons, designated by the Mutual Protection Company, and the transfer of the business and reserve under cover of a reinsurance contract. It alleges that, on October 9th, 1871, at a meeting of the board of trustees of the “ Widows and Orphans’ ” company, the proposition for the purchase of the stock was accepted; that on October 19th, 1871, certain of the trustees of the “ Widows and Orphans’ ” company, at a meeting held at that date, resigned their positions and there were elected in their places a number of the trustees of the Mutual Protection Company, among whom was the defendant Henry; that, on November 9th, 1871, the defendant Henry and his associates, acting as trustees of tire “ Widows and Orphans’ ” company, at a board meeting held on that day, confirmed and ratified the minutes of the proceedings of October 9tli and 19th; that, having thus obtained control of the “ Widows and Orphans’ ” company, these new trustees, Henry and his associates, caused to be transferred and paid to the “ Mutual Protection ” company the property and assets of that company, constituting the reserve on the policy obligations, and that therefrom they caused to be paid out, wrongfully and illegally, large sums of money, in various ways particularly set forth and in connection with the fraudulent and illegal plan of October, 1871. It alleged that subsequent to the election held on October 19th, 1871, Henry and his associates suffered and permitted the 1! assets, property, etc., of the “Widows and Orphans’ ” company \ to be wasted and misapplied, and the policyholders to be l plundered and defrauded; that, by reason of the fraudulent jj and illegal acts, doings, proceedings, etc., which had been set out, the “ Widows and Orphans’ ” company was completely wrecked and ruined ; so that on January 1st, 1872, instead of having a surplus as to its policy obligations, the “ Widows and Orphans’ ” company had a large deficit. It alleged that by reason of the premises the “ Widows and Orphans’ ” company, its policyholders and creditors, had sustained damages j in the sum of $400,000 and upwards, and prayed judgment decreeing the defendants’ intestate to be chargeable, as a trustee of the “ Widows and Orphans’ ” company, and adjudging that he should account for the property and assets of that company. The only defense in the answer which need be referred to, inasmuch as it presents the only question to be considered upon this apneal, is that the cause of action did not accrue within six years before the commencement of this action.</p> <p>The trial court found, among other things, that the defendant Henry was liable under the proofs, and directed judgment against him for the amount due to the creditors and policyholders. He found as facts, that the misappropriation of funds and the acts, which constituted the cause of action herein, accrued in Uovember, 1871; that the business of the “ Widows and Orphans’ ” company was, in fact, abandoned on or about the 18tli of June, 1872, and that this action was instituted in April, 1879. Upon appeal from the judgment, so recovered by the plaintiff against the defendant, the latter appealed to the General Term of the Supreme Court, in the first department; where a reversal of the judgment and a new trial of the action were ordered. The plaintiff thereupon appealed to this court, giving the usual stipulation for judgment absolute in case of affirmance.</p> <p>The illegality of the transactions set forth in the complaint is conceded, but if questioned they are supported by positive adjudications upon the same state of facts as these now presented to the court. (Pierson v. McCurdy, 33 Hun 522; Pierson v. Morgan, 20 Abb. [N. C.] 421; Pierson v. Cronk, 13 N. Y. Supp. 845; Mason v. Cronk, 125 N. Y. 496; Meade v. St. Louis, 51 How. Pr. 1; Smith v. St. M. L. Ins. Co., 7 Tenn. Ch. 727; People v. E. M. L. Ins. Co., 92 N. Y. 105; Wardell v. R. R. Co., 103 U. S. 658; Beers v. N. Y. L. Ins. Co., 20 N. Y. Supp. 788.) The plea of the six years’ clause of the Statute of Limitations should have been overruled. (Brinckerhoff v. Bostwick, 99 N. Y. 185; Pierson v. Cronk, 13 N. Y. Supp. 845; Pierson v. Morgan, 20 Abb. [N. C.] 428; Sands v. Kimbark, 27 N. Y. 148; Bartlett v. Drew, 57 N. Y. 587; Hastings v. Drew, 76 N. Y. 9; Sanger v. Upton, 91 U. S. 56-60; 2 Story’s Eq. Juris. 485; 1 Perry on Trusts, 299, § 242; Hill on Trustees, 172; Willard’s Eq. Juris. 610; Butts v. Wood. 37 N. Y. 318; Bliss v. Matteson, 45 N. Y. 22-26; Robinson v. Smith, 3 Paige, 223.) The judgment in this action being confined to the liability for unlawful withdrawal of capital stock no Statute of Limitations can be a bar. (1 R. S. art. 1, chap. 18, tit. 2, § 1; L. 1853, ch. 463.) Even if the six years’ clause of the Statute of Limitations applies to the cause of action set forth, in the complaint and established upon the trial, the action was brought in ample time. (Mason v. Cronk. 125 N. Y. 504; Beach v. H. M. L. Ins. Co., 47 Hun, 210.) There is no finding of fact or of law upon which the claim that this action is barred by the six years’ Statute of Limitations can be supported. (Baker v. Lever, 67 N. Y. 304; King v. Bloodgood, 7 Johns. Ch. 122; Bailey v. Glover, 21 Wall. 342.) The opinion of the General Term is based on the proposition that the plaintiff had concurrent remedies at law and in equity, the legal remedy being as effectual as the one in equity. This is error. (People v. G. M. L. Ins. Co., 91 N. Y. 174.) The opinion of the General Term and its entire reasoning is based upon the mistaken assumption that this action was brought by the receiver solely as the representative of the corporation. (O'Brien v. Fitzgerald, 143 N. Y. 382.)</p> <p>This action is barred by the Statute of Limitations. (Code Civ. Pro. § 414; Butler v. Johnson, 111 N. Y. 204; O'Brien v. Fitzgerald, 143 N. Y. 377; Hun v. Carey, 82 N. Y. 65; Angell & Ames on Corp. §§ 312, 314; Story’s Eq. Juris. §§ 1285, 1286; Morawetz on Corp. §§ 523, 525, 550, 562; Atty.-Gen. v. G. M. L. Ins. Co., 77 N. Y. 276; Hubbell v. Medbury, 53 N. Y. 102.) There is no ground for the reversal of the General Term judgment. (Morawetz on Corp. §§ 523, 565, 787, 794, 796, 867, 868; Ettlinger v. Schumaker, 142 N. Y. 189; Hubbell v. Medbury, 53 N. Y. 102; Greaves v. Gouge, 69 N. Y. 157; Brinckerhoff v. Bostwick, 99 N. Y. 193; Porter v. Sabin, 149 U. S. 470; People v. G. M. L. Ins. Co., 91 N. Y. 180; People v. S. L. Ins. & A. Co., 78 N. Y. 114; Billings v. Robinson, 94 N. Y. 415; Atty.-Gen. v. G. M. L. Ins. Co., 77 N. Y. 272.)</p>

<p>1. Tripartite Contract—Construction. Whether the right or privilege, conferred by the promise of one party to a tripartite contract, belongs to one or both of the other contracting parties, depends upon the intention as gathered from the words used, read, so far as they are ambiguous, in the light of surrounding circumstances.</p> <p>3. Obligations and Bights of Parties. Every party to a tripartite contract is bound only to the extent of the promise made by him, and any party thereto may insist upon the performance of every promise made to Mm or for his benefit by the party or parties who made it.</p> <p>3. Joint and Several Promises. When a promise contained in a tripartite contract is to two jointly, a single act of performance satisfies it; but when it runs to two severally, there are two promises in fact and each must be performed.</p> <p>4. Advantage of Promise Confined to Promisee. A party to a tripartite contract can take no advantage of any stipulation, whether express or implied, made by another party with the third party only.</p> <p>5. Action for Breach of Tripartite Contract. A tripartite contract having been made by a corporation owning certain patents, a manufacturing corporation, and an inventor, concerning the perfecting, manufacture and sale of a certain machine, held, than an action brought by the first corporation against the second, to recover damages for an alleged violation of the contract in refusing to furnish the inventor with the means of continuing his experiments, thus rendering it impossible for Mm to perfect the machine contemplated by the parties, was not maintainable— it appearing that the contract contained no such stipulation on the part of the defendant with the plaintiff, or even with the inventor, as was claimed to have been broken.</p>

Cross-appeals from a judgment of the General Term of the Supreme Court in the first judicial department, entered December 31, 1894, which modified and as modified affirmed a judgment entered upon the report of a referee. The nature of the action and the facts, so far as material, are stated in the opinion.

Appeals from judgments of the General Term of the Supreme Court in the first judicial department, entered respectively April 16 and 18, 1895, which affirmed judgments in favor of the respective plaintiffs entered upon a decision of the court on trial at Special Term, and also affirmed orders denying motions to strike the causes from the equity calendar and to grant a jury trial. The cases were tried together and involve the same questions.

<p>Attorney-—Removal from Office. The Appellate Division of the Supreme Court has power (Oode Oiv. Pro. § 67) to disbar an attorney for professional misconduct, without regard to the fact of possible or pending indictment. If the charge involves a felony or a misdemeanor entirely distinct from the party’s professional action, the court will stay its hand until the criminal trial has taken place; but if the charge involves professional misconduct, the fact that some of the acts complained of are felonies and indictment may follow, is no reason for staying the proceeding to disbar.</p>

Appeal by tlie remaindermen from a judgment of the General Term of tlie Supreme Court in the third judicial department, entered September 18, 1895, which affirmed a decree of the surrogate of Clinton… Held: under the undisputed terms of the clause, to have passed upon the death of Eichard, without heirs or children, to the remaindermen named, the appellants here.

The action was to foreclose a mortgage upon real and personal property. It was a second mortgage. There was a prior mortgage upon the property, which was given to secure, and upon which there was unpaid, the sum of one hundred and fifty thousand dollars.