N. Y.)




We do not, however, agree with this conten this obligation, under the circumstances stattion, but think it very clear that when de ed, did require the railroad company to re fendant was authorized to construct the ex pave with an entirely new material. The tension in question by an amendment of a court say (page 39 of 157 N. Y. and page section of the original act such extension 396 of 51 N. E.): "The local authorities was subject to the obligations contained in may determine when and how the street shall such original act as amended.

be repaired, but when that is done the statute In 1888 and 1889 the municipal authori steps in and says the railroad company is to ties of New York took proper proceedings, do the work.

* Our examination of and entered into a contract for paying the the statute then leads to the conclusion that street where defendant's tracks lay with

under section 98 of the railroad act it begranite block pavement. Prior to that time came and was the duty of the Rochester there had been no complete or actual pave Railway Company to keep in permanent rement of the street in any manner, but the pair such portion of the street through which same was substantially a dirt road. In some it passed as was within its tracks, and two places a species of incomplete macadam had feet in width outside, and that the local aubeen laid, but only to the extent of filling thorities of that city were vested with the up uneven spots in the road, and at the time authority of determining when the repairs in question the evidence shows quite con should be made, and, thus empowered, the clusively that the street, and especially be local authorities did determine that repairs tween the tracks of defendant's road, was should be made and the character of them. soft and uneven, and not in good repair or in They decided that the entire street should good order. The municipality served upon be repared and that the material to be used defendant a proper notice requiring it to should be asphalt. This they had the right pave, basing such notice and its complaint to do, and when this determination was made herein upon the obligations contained in sec the statute intervened and commanded that tion 3 of the statute incorporating it, as the Rochester Railway Company should make amended by the act of 1871, heretofore refer the repairs thius ordered under the superred to, and the specific question, therefore, vision of the local authorities." presented is whether the obligation resting We regard the obligations imposed upon upon the defendant to keep the space in the defendant in this case quite as broad as side and outside its rails "in good and proper those which were outlined in the statute order and repair,” etc., compelled it, under last referred to. In the place of a requirethe circumstances, upon the requirement of ment "to have and keep in permanent rethe city, to lay a granite block pavement, pair *

under the supervision of the and this question we have concluded to an proper local authorities, and whenever reswer in the affirmative. While it may be quired by them to do so," we have the proadmitted that the decisions and authorities vision compelling the defendant here to keep are not uniform, either within this state "in good and proper order and repair and or outside of it, upon the question whether conform the tracks," etc. While this statute such an obligation requires a railroad com does not itself specify, as in the case of the pany to lay a new pavement, as distinguished railroad law, that this shall be done under from merely repairing an old one, we think the supervision of the municipal authorities that the controlling ones in this state de and in accordance with their specifications, cide such proposition in the affirmative. that necessarily follows from the general

In Conway v. City of Rochester, 157 N. Y. duties and powers conferred upon such au33, 51 N. E. 395, the question was directly thorities by law. Therefore, when the propinvolved whether the Rochester Railway er authorities, in view of the condition of Company could be compelled to repave its the street as shown to exist, decided that a tracks with asphalt in connection with the granite block pavement should be laid, we repaving of the remainder of the street with think that the requirement for repairing that material under the direction of the and keeping in good order compelled the deinunicipal authorities, there previously hav fendant to co-operate with the city, and put ing been there a macadam or entirely dif the space between its rails in the same conferent kind of pavement. The obligation so dition as the rest of the street, even though to do in that case rested, if at all, upon the that necessitated the laying of a new paveprovisions of section 98 of the railroad law ment. It has been held elsewhere by this (Laws 1890, p. 1112, c. 565, as amended) im court that an obligation, couched in subposing upon every street surface railroad stantially similar language, resting upon a company operating its tracks in a city or railroad

company will compel it under village street to "have and keep in per proper conditions to lay a new kind of pave. maneut repair that portion of such street, ment. In Village of Mechanicville v. Stillavenue or public place between its tracks, water & M. St. Ry. Co., 35 Misc. Rep. 513, the rails of its tracks, and two feet in width

71 N. Y. Supp. 1102, affirmed 174 N. Y. 507, outside of its tracks, under the supervision 66 N. E. 1117, it was held that a provision of the proper local authorities, and whenever in defendant's franchise containing a rerequired by them to do so, and in such man quirement that the space between the rails, ner as they may prescribe.” It was held that

etc., should be paved by the railroad com7S N.E.-68


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pany with "small stone” and “that the same except as otherwise prescribed by the statute. should at all times be kept in good condi

Section 72 declares that every person who, tion," authorized the village to compel the

under any devise, is entitled to the rents and

profits of real estate, shall be deemed to have railroad company to repave with vitrified

a legal estate therein, subject to the same conpaving brick; and in Binninger v. City of ditions as his beneficial interest. Section 73 New York, 177 N. Y. 199, 212-214, 69 N.

provides that every disposition of real estate by

devise shall be made directly to the person in E. 390, the discussion extended to the subject

whom the right to the possession and profits is of laying new pavements as distinguished intended to be vested, and that, if made to from merely repairing old ones under ob any person to the use of, or in trust for, anligations such as we have been discussing,

other, no estate or interest, legal or equitable,

vests in the trustee, but that such section and the views in such discussion expressed shall not affect the creation of express trusts, by the majority of the court confirm the de as authorized by the statute. Section 129, page cisions already cited. We, therefore, regard 579, provides that, where an absolute power of it as settled by controlling authority in this

disposition, not accompanied by a trust, is given

to the owner of a particular estate for life or state that the plaintiff was entitled to require for years, such estate is changed into a fee of the defendant to lay in its tracks granite absolute, in respect to the rights of creditors. pavement, and we find no difficulty in fol

Held, that a testamentary trust, whereby the lowing such adjudication. The question of

trustee was to pay the income to the cestui

que trust for life and deliver to him the whole what shall constitute keeping a pavement in or any part of the principal to enable him to the tracks of a railroad company in good engage in any business or enterprise, whenever order and repair is to be determined some

he might notify the trustee of his desire to

engage in any business or enterprise, was opwhat at least by reference to existing and

posed to public policy, and invalid as against the surrounding conditions, and in our judgment creditors of the cestui que trust. it would be altogether too narrow a view to

Appeal from Supreme Court Appellate hold that where a municipality had for suf

Division, Third Department. ficient reason decided to pave a street with

Action by Morris Ullman and others asphalt or other new pavement a railroad

against Albert L. Cameron, individually and might discharge its obligations to keep its

as trustee under the will of J. N. Cameron, part of the street in good order and repair

deceased. Appeal by permission of a judgby merely patching up a dirt road or some

ment of the Appellate Division (93 N. Y. species of pavement which had become anti

Supp. 976), affirming a judgment overruling quated and out of condition and which was

a demurrer to the complaint. Affirmed. entirely different from that adopted in the remainder of the street. These views render

The case made by the amended complaint it unnecessary for us to consider or accept

is that the plaintiffs are judgment creditors the somewhat narrower view of a special

of one Charles E. Cameron, with an execucontract upon which the Appellate Division

tion returned unsatisfied and a receiver placed its decision of reversal.

appointed in proceedings supplementary to The order should be affirmed, and judgment

the execution issued upon their judgment. absolute ordered against defendant on the

The judgment was recovered on the 11th of stipulation, with costs in all courts.

July, 1901. Early in January, 1900, one Jane
N. Cameron, wife of the said Charles, died,

leaving a last will and testament, the mateCULLEN, C. J., EDWARD T. BARTLETT,

rial parts of which are as follows: HAIGHT, VANN, and CHASE, JJ., concur;

"First. I hereby, give, devise and bequeath GRAY, J., absent.

all of my estate, both real and personal

of every name, kind and nature whatsoever, Order affirmed, etc.

in trust for the uses and purposes herein

after named, to Albert L. Cameron of Smith(186 N. Y. 339)

field, N. Y., my executor hereinafter named. ULLMAN et al. v. CAMERON.

"Second. I hereby will and direct the said

Albert L. Cameron to pay over to my hus(Court of Appeals of New York. Nov. 13, 1906.)


of the income, rents, issues and profits of Where a testamentary trust was invalid as

my said estate and so much of said principal to creditors of the cestui que trust, and, after sum as may be necessary for his support the recovery of a judgment against him by plain

and maintenance for and during the term of tiff, most of the property embraced in the trust

his natural life. was converted into real estate, whereby the judgment became a lien upon it, and thereafter a “Third. I further will and direct that receiver was appointed in proceedings supple whenever the said Charles E. Cameron shall mentary to an execution issued on the judgment,

desire to engage in any business or enterprise plaintiff was entitled to sue to set aside the trust and enforce the lien, a contention that

and shall give notice thus to the said Albert such suit should have been brought by the

L. Cameron that he desires the whole or any receiver as sole plaintiff being untenable. part of such principal sum for such purpose 2. TRUSTS-VALIDITY-RIGHTS OF CREDITORS

it is my will, and in that case I hereby diOF CESTUI QUE TRUST. Real Property Law, Laws 1896, p. 570,

rect the said Albert L. Cameron to pay over c. 547, $ 71, provides that every estate or inter

and deliver to the said Charles E. Cameron est in real property is to be deemed a legal right, the amount so desired by him out of the

principal sum so given to him in trust by be sustained upon the ground that the plainthe first clause Dereof.

tiffs have not legal capacity to sue, in that "Fourth. I hereby give, devise and be the title to the said cause of action is in queath all the rest, residue and remainder of the defendant, William E. Lounsbury, as rethe said trust estate created by the first clause ceiver, and that the plaintiffs have no title to hereof which shall remain in the hands of the same? (2) Should the demurrer be sussaid Albert L. Cameron as such trustee or ex tained upon the ground that there is a defect ecutor after the death of my said husband of parties plaintiff, in that the plaintiffs to my sister, Lucy Morrison, and to Ann M. are not the proper parties to bring this acCameron, my husband's sister, and to John tion; that, if any cause of action exists as T. Cameron, Albert L. Cameron and Delos alleged in the complaint, it belongs to the W. Cameron, brothers of my said husband, defendant, William E. Lounsbury, as reshare and share alike, and to their heirs and ceiver; that he should be the party plaintiff, assigns forever. And it is my will and I and not be a party defendant to the said achereby direct the said Albert L. Cameron to tion? (3) Should the said demurrer be suspay over and deliver such remainder as here tained upon the ground that the complaint in provided.”

does not state facts sufficient to constitute By the fifth and last clause Albert L. Cam a cause of action?" eron was appointed sole executor, with full

M. H. Kiley, for appellant. T. B. Merpower to execute said trust.

chant, for respondents. Mrs. Cameron, the testatrix, left some household furniture of small value and a

VANN, J. (after stating the facts). That bond and mortgage worth $3,500, but no real

the plaintiffs were under no legal disability, estate, although in July, 1901, the land cover

such as infancy, lunacy, or the like, and ed by the mortgage was conveyed to Albert

hence had a legal capacity to sue, cannot be L. Cameron, "as trustee as aforesaid," in

seriously disputed according to the authorisatisfaction of said bond and mortgage, and

ties, which make a clear distinction between upon the same trust under which they were

"incapacity to sue" and "insufficiency of held. The remaindermen named in the

facts to sue upon." Ward v. Petrie, 157 N. fourth clause, as well as the receiver, were

Y. 301, 311, 51 N. E. 1002, 68 Am. St. Rep. made parties defendant when the complaint

790; Bank of Havana V. Magee, 20 N. Y. was amended by order of the court after a

355, 359. trial, but no reason was set forth therein

The appellant, however, contends that the why the receiver should not have been made

receiver is not a proper party defendant bethe party plaintiff. The relief demanded is

cause he should have been the sole plaintiff, that the trust purporting to be created by

and that the respondents are not proper parthe will be adjudged void as to the plain

ties plaintiff inasmuch as the cause of action, tiffs, and the property covered by the al

if any is set forth, belonged exclusively to leged trust be charged with the payment of

the receiver. If the trust is invalid as to their judgment. There is also a prayer for

creditors, title to the property covered therean accounting.

by vested in Charles E. Cameron, the judgThe defendant, Albert L. Cameron, de

ment debtor, in January, 1900, when his murred to the complaint upon the following wife died, at least so far as the claims of grounds: "(1) That the plaintiffs have no creditors are concerned. The plaintiffs relegal capacity to sue in that the title to

covered their judgment in July, 1901, and the said cause of action is in the defendant,

during that month the most of the property William E. Lounsbury, as receiver, and that

was converted into real estate through the the plaintiffs have no title to the same.

conveyance of the land covered by the mort(2) That there is a defect of the parties plain

gage to the trustee. The plaintiffs' judgtiff in that the plaintiffs are not the proper

ment thus became a lien upon said real estate parties to bring this action; that, if any

in July, 1901, and they had a cause of action cause of action exists, as alleged in the

in equity to set aside the trust as to them complaint, it belongs to the defendant, Wil

and enforce their lien. In February, 1902, liam E. Lounsbury, as receiver, and that he

the receiver was appointed, but that did not should be the party plaintiff, and that the transfer the lien of the plaintiffs' judgment defendant, William E. Lounsbury, as re to him. He took the land subject to their ceiver, should not be made a party defendant lien. They still owned it, and had a right to to the said action. (3) That the complaint enforce it. They had a cause of action for does not state facts sufficient to constitute

that purpose which was exclusively their a cause of action."

own, and in which he had no interest. They The judgment rendered at the Special did not assign their judgment to him by proTerm, overruling the demurrer, was affirmed curing his appointment, nor did they thereby by the Appellate Division, but subsequently assign their lien to him, or estop themselves leave was given to appeal to this court, and from enforcing it. Conceding that the propthe following questions certified for review: erty which was still personalty when the re"(1) Should the demurrer of Albert L. Cam ceiver was appointed vested in him with eron, defendant, individually and as trustee, the exclusive right to appropriate it to the

payment of the plaintiffs' debt, still he had to the remaindermen and the intent of the no right to the lien of the plaintiffs' judg. testatrix thus carried out as far as possible. ment on the real estate, and hence they had As to creditors, however, the trust cannot a cause of action, which never vested in stand, for it is 'opposed to public policy as him. He could acquire a lien by filing a bill declared by statute and by the decisions of in equity, while they already had one but the courts. 1 Rev. St. p. 727; Real Prop. needed equitable aid to enable them to en Law, $8 71, 72, 73 and 129; Laws 1896, pp. force it. They could sell under execution 570, 579, c. 547; Hallett v. Thompson, 5 Paige, and sue afterwards to clear the title, but he 583; Frazer v. Western, 1 Barb. Ch. 220; could not. The parties nained had different Wendt v. Walsh, supra; Chaplin on Trusts, rights as to the real estate, and were entitled 585 In Hallett v. Thompson, Chancellor to separate remedies. Gere V. Dibble, 17 Walworth declared that it was “contrary to How. Prac. 31; Bennett v. McGuire, 58 Barb. sound public policy to permit a person to 633.

have the absolute and uncontrolled ownerThe final question is whether the com ship of property for his own purposes, and plaint sets forth a cause of action, independs to be able at the same time to keep it from ent of the questions already passed upon. his creditors." That case was cited and the That question was considered by the Appel- | language of the chancellor substantially quotlate Division upon an appeal from a judg. ed with approval by Judge Rapallo in Wilment rendered for the defendants upon the liams v. Thorn, 70 N. Y. 270, 273, and it has merits before the complaint was amended,

received the approval of many courts in this Ullman v. Cameron, 92 App. Div. 91, 87 N.

state and elsewhere. The doctrine is sound Y. Supp. 148. We adopt the language of the

and applies to this case, for, as to my credito learned presiding justice, when, speaking for

ors, property is mine that becomes mine for the court and referring to Charles E. Cam

the asking, and no words can make an instrueron, he said: "Now he was evidently enti

ment strong enough to hold it for me, and tled to the possession of such fund if he de

keep it from them. manded it for the purpose of engaging 'in

The order should be affirmed, with costs, any business or enterprise,' and it seems to

and the questions certified answered in the me that such a purpose is so broad and so

negative. personal to the beneficiary that it is equivalent to a direction that he is entitled to it

CULLEN, C. J., and HAIGHT, WERNER, whenever he asks for it." The intention of

WILLARD BARTLETT, and HISCOCK, JJ., the testatrix, as we glean it from the will,

concur. GRAY, J., absent, , was to give the property to her husband and yet keep it from his creditors. The trust

Order affirmed. an obvious pretext for that purpose. There was but a single trust, for the gift

(186 N. Y. 334) was of all the property to one person in trust for one person during his life, with remainder

COOPER v. PAYNE. over to others. The “uses and purposes” (Court of Appeals of New York. Nov. 13, 1906.) named as the object of the trust include the EVIDENCE PAROL EVIDENCE AFFECTING right of the beneficiary to take the corpus


Where a verbal sale was completed on April of the estate at will, by simply notifying the

3, 1903, written instruments executed May 26, trustee that he wishes to engage in some 1903, and December 1, 1903, the former recitbusiness or enterprise. He is not obliged to ing a present sale and the latter reciting a sale actually engage in any business or enter upon

on April 3d, and each containing provisions al

tering the time of payment and security to the some enterprise, but simply to say that he

seller, did not show the entire contract of sale desires the property for either purpose, when so as to exclude parol evidence of a warranty the trustee has no discretion, but is required

by the seller. to pay over whatever is asked for, even to Appeal from Supreme Court, Appellate Di. the extent of the whole fund. Although pos. vision, Third Department. session and title are thus subject to his con Action by Charles Cooper against Henry trol, it is insisted that, until he calls for pos B. Payne. From a judgment of the Apsession, the property is not liable for his pellate Division (93 N. Y. Supp. 69) Third debts. The law will not endure this when Department, affirming a judgment in favor creditors ask its aid to prevent it, but will of plaintiff, defendant appeals. Reversed. declare the estate vested as to them as we

Henry V. Borst, for appellant. Andrew J. did in Wendt v. Walsh, 164 N. Y. 154, 58 N.

Nellis, for respondent. E. 2. Whether the trust should be sustained as to the persons named in the will, as dis WERNER, J. The action is upon a promtinguished froin the creditors, need not now issory note which is one of several notes be passed upon. Unlike the ca

Unlike the case cited, which given by the defendant to the plaintiff for a held the trust then under consideration to be part of the purchase price of a knitting maa naked trust, in this case a trust term is chine sold by the latter to the former. The defined, and it may be that any property left defendant's answer alleges the breach of an at the death of the chief beneficiary will pass express warranty as to the character, qual


ity, and amount of work which this machine the consideration of the jury. Upon defendwas designed to do. Evidence was offered ant's appeal to the Appellate Division the to support these allegations, and excluded judgment entered upon the directed verdict upon the theory that it was inadmissible to was affirmed. vary the terms of the contract, which the We think both of the learned courts belearned trial court regarded as having been

low entertained an erroneous view of the wholly reduced to writing. The questions

two written instruments under consideration. presented by the various exceptions to the They are clearly not the full and complete rulings in this behalf might be discussed in repository of the understanding of the pardetail and at length, but as the whole con- tie . They are not only separate writings troversy depends primarily upon the nature of different dates subsequent to the actual of the contract, we shall consider the case

sale and delivery of the machine, but they broadly and briefly from briefly from that point of

are obviously supplemental to an oral conview. The negotiations between the parties

tract pursuant to which sale and delivery began in November, 1902, when the plaintiff

were consummated. A glance at these writoffered to sell to the defendant a knitting

ings in the light of the undisputed facts and machine described in a submitted catalogue.

the mutual attitude of the parties clearly reThis was followed in December by the plain

veals their very limited character. The first tiff's acknowledgment of an order for a ma

writing was dated May 26, 1903.

The machine at the price of $1,255, payable “net

chine had in fact been sold and delivered on 30 days." The machine in question was de

April 3, 1903, and the correspondence shows livered to the defendant on the 3d day of

that the parties regarded it as a consummat

ed sale as of that date. In view of these April, 1903, and remained unused in the fac

circumstances the mere recital in the contract tory of the latter until May 26, 1903, when the parties signed in duplicate a written in

of May 26th of a present sale is not controlstrument reciting a present conditional sale

ling. Passing this recital and going to the of the machine by the plaintiff to the de

substance of the document, we see that it is fendant, the reservation of title in the form

nothing more or less than an arrangement er, and the promise of the latter to pay for

for extending to the defendant his time of the same upon demand. From that time

payment, which was then overdue, and givuntil December 1, 1903, the machine was still

ing to the plaintiff security for his forbear

ance. The whole context bears out this view left in its shipping wrappings at the defend

and the subsequent correspondence indicates ant's factory, and on the latter date the parties executed another written instrument re

that this was the understanding of the parciting the sale and delivery of the machine

ties. In no aspect can any of its provisions

be said to be inconsistent with an oral waron April 3, 1903, the nonpayment of the pur

ranty of quality and workmanship. Even chase price and interest, and providing for

more unmistakable in its import is the instrua new time and method of payments as wit

ment dated December 1, 1903. That recites nessed by the notes upon one of which this

a sale and delivery as of April 3, 1903, the action is brought. Contemporaneously with

continued indebtedness of the defendant to the execution of the last-mentioned paper and

the plaintiff, and the promise of the former the notes in question, there were oral negotiations as to the setting up of the machine

to pay according to the newly stipulated

terms. It distinctly recognizes the existence and getting it into operation. The plaintiff

of the contract of April 3d, and we look sent a man to start the machine, but accord

through it in vain for a single written word ing to the evidence of the defendant after

that will be contradicted or rendered nugavarious trials it failed to work, and this

tory by proof of an oral warranty. The more suit followed. The record contains much of

these two instruments of May 26th and Dethe voluminous correspondence between the

cember 1st are studied in connection with the parties. It is interesting in its revelations of

circumstances surrounding their execution, their practical attitude towards each other,

the more evident it becomes that they do not and has some bearing upon the decisive ques

purport to contain the full agreement of the tion in the case, but on account of its vol

parties, but are merely modifications of the ume we refrain from quoting it. It is enough

original oral contract in respect of the terms to say that upon the record as made by this of payment. correspondence and the written instruments

We, therefore, conclude that the case at above referred to, the learned trial court held bar is within the rule laid down in Chapin that the alleged express warranty relied up v. Dobson, 78 N. Y. 74, 34 Am. Rep. 512 and on by the defendant did not survive the

approved in Eighmie v. Taylor, 98 N. Y. 288. execution of these writings under which to the effect that the prohibition against the it was assumed that the defendant had pur reception of parol evidence to vary or modify chased and accepted the machine. The logi a written contract, cannot be invoked where cal corollary of this view was the exclusion the original contract was verbal and entire of all proflered oral testimony as to an ex and a part only was reduced to writing. The press warranty, and the necessary effect of application of that rule to this case is made the rulings in that behalf was to deprive the so plain in Thomas v. Scutt, 127 N. Y. 133, defendant of any chance to make a case for 27 N. E. 961 that we may safely close our dis

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