« ForrigeFortsett »
(218 X. Y. 736)
holder, is not in a position to bring an action In re MCINTYRE.
or suit to collect.
[Ed. Note.-For other cases, see Bills and (Court of Appeals of New York, June 16, 1916.) Xotes, Cent. Dig. $$ 1377, 137712, 1388; Dec. Proceeding under the Workmen's Compensa
Dig. 443(1).] tion Law by Mary McIntyre for compensation 2. CORPORATIONS O 473-BONDS-RIGHT TO for the death of her husband. Compensation COLLECT. was awarded, the award affirmed by the Appel The owner of corporate bonds, from whom late Division (155 N. Y. Supp. 1121), and the they were procured by a stockholder in the coremployer and insurer appealed by permission; poration by fraud and deceit, could not sue the the order of the Appellate Division being re-corporation on such bonds, since one not the versed and the claim dismissed (112 N. E. 1064). holder of a negotiable instrument, but merely On motion to amend remittitur as to award of entitled to become the holder, cannot bring suit costs. Motion granted, and remittitur resettled, to collect. so as to provide for the award of costs against [Ed. Note. For other cases, see Corporations, the State Industrial Commission only.
Cent. Dig. 88 1842-1853, 1855; Dec. Dig.
473.] PER CURIAM. Motion to amend remittitur as to award of costs granted, and remittitur. EQUITY Ow39(1)-RETAINING JURISDICTION (112 N. E. 1064) resettled, so as to provide for
TO ADMINISTER FULL RELIEF. the award of costs against the State Industrial of a bill of equitable replevin of a party owning
A court of equity, which takes jurisdiction Commission only. See opinion in Wilson Case (decided herewith) 218 N. Y. -113 N. E. 454. corporate bonds against a stockholder in the
corporation, he having obtained the bonds from plaintiff by fraud and deceit, will not keep juris
diction to enable plaintiff to collect the bonds, on (218 X. Y. 736)
the ground that, having taken jurisdiction, the In re CHAPPELLE.
court will keep it to administer full relief, since (Court of Appeals of New York. June 16, 1916.) | it can be given her as an incident to her bill
June 16, 1916.) plaintiff cannot have the additional relief 'unless On motion to amend remittitur as to award of of equitable replevin. costs. Motion granted, and remittitur resettled, [Ed. Note.-For other cases, see Equity, Cent. so as to provide for the award of costs against Dig. 88 104-109, 111, 114; Dec. Dig. 39(1).] the Industrial Commission only. See 112 N. E. 4. JUDGMENT Om572(2)—DECISION ON DEMUR569.
RER-CONCLUSIVENESS. PER CURIAM. Motion to amend remittitured on demurrer, and based on the ground that
A decree, dismissing plaintiff's bill, render(112 N. E. 569) as to award of costs granted, the bill is defective, will not bar any proper acand remittitur resettled, so as to provide for the tion or actions, suit or suits, to enforce the mataward of costs against the State Industrial Com
ters complained of. mission only. See opinion in Wilson Case (decided herewith) 218 N. Y. - 113 N. E. 454.
[Ed. Note.-For other cases, see Judgment, Cent. Dig. 88 1041, 1048; Dec. Dig. 572(2).]
5. JUDGMENT Om565 - DISMISSAL WITHOUT (218 N. Y. 736)
PREJUDICE ON DEMURRER. SHERIDAN V. P. J. GROLL CONST. CO. Though decree dismissing plaintiff's bill, ren
dered on demurrer, based on the ground that (Court of Appeals of New York. June 16, 1916.) the declaration is defective, will not bar any Proceeding for compensation under the Work- proper suit to enforce the matters complained
of, the better practice is to provide in the deagainst the P. J. Groll Construction Company, cree that the bill is dismissed without prejudice. employer, and the Employers' Liability Assur
[Ed. Note. For other cases, see Judgment, ance Corporation, Limited, insurer. The award Cent. Dig. $ 1018; Dec. Dig. 565.] of the State Industrial Commission was affirmed
Appeal from Supreme Judicial Court, Sufby the Appellate Division (155 N. Y. Supp. 859), and there was an appeal by permission, on which folk County. the order of the Appellate Division was reversed Suit by Juliet F. Lloyd against the Impe(112 N. E. 568). On motion to amend remittitur rial Machine Stamping & Welding Company as to award of costs. Motion granted, and remittitur resettled, so as to provide for the award and others. From a decree dismissing the of costs against the State Industrial Commis- bill, entered on an order sustaining a demur. sion only.
rer filed by Louis F. Buff, a defendant, plain
tiff appeals. Decree modified and affirmed. PER CURIAM, Motion to amend remittitur as to award of costs granted, and remittitur re Geo. L. Wilson, of Boston, for appellant, settled, so as to provide for the award of costs Wm. M. Richardson and Wm. P. Evarts, both against the State Industrial Commission only; of Boston, for appellee Buff. See opinion in Wilson Case (decided herewith) 218 N. Y. — 113 N. E. 454.
LORING, J. This case comes up on an ap
peal from a decree dismissing the bill enter(224 Mass. 574) LLOYD v. IMPERIAL MACH. STAMPING ed on an order sustaining a demurrer filed & WELDING CO. et al.
by the defendant Buff. In her bill the plain
tiff alleged that in the summer of 1909 she (Supreme Judicial Court of Massachusetts. Suffolk. July 12, 1916.)
became the owner of seventy-one first mort
gage bonds of the defendant Welding Com1. BILLS AND NOTES 443(1) HOLDER's pany; that these bonds were part of an isRIGHT TO COLLECT.
The right to collect a negotiable instrument sue of seven hundred bonds secured by a is in the holder of it; and a person who is not mortgage of certain rights in an invention, the holder, but who is entitled to become the future improvements thereon and patents se
Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
curing the same, together with drawings, | as stockholder in the corporation which the
(224 Mass. 516)
1911. The pertinent facts are that the deNEWCOMB, Tax Collector, v. PAIGE. fendant, a resident of Hardwick, in this com
monwealth, together with one Monteagle, a (Supreme Judicial Court of Massachusetts.
resident of California, and one Wright, a resWorcester June 22, 1916.)
ident of New York, was appointed executor 1. TAXATION 93(2)–PROPERTY SUBJECT-of and trustee under the will of Calvin
SITUS OF PROPERTY-DECEDENT'S ESTATE Paige, who was domiciled at the time of his
decease in the city of New York. They were § 23, cl. 5, providing for taxation of personal duly appointed to this trust by the appropriproperty held in trust, and concluding by pro- ate court of the state of New York. They viding that, where the trustee is a nonresident, have not been appointed by the courts of this trust property "shall be assessed to the person or any other state except New York. These to whom the income is payable, in the place where he resides if it is not legally taxed to executors, in accordance with the will, paid
trustee under a testamentary trust in to themselves as trustees a legacy of $150,any other state," do not subject to a property 000, to be held during his life for the benefit tax personal property held by several trustees, of Joseph C. Paige, also a resident of Hardonly one of whom resides in Massachusetts, appointed by a court of another state under the wick. This trust fund was invested in inwill of a testator resident in that state, to be tangible securities, a part of which are not executed according to its law; such property be subject to direct taxation in the state of ing actually deposited and continuously kept in New York, and a part of which are so subsuch foreign state in the hands of a cotrustee, there resident, and there subject to and paying ject to taxation, and as to this part a tax taxes thereon.
was paid in that state for the year 1911. So [Ed. Note.-For other cases, see Taxation, far as taxable the fund as a whole is there Cent, Dig. 8 183; Dec. Dig. 93(2).]
subject to taxation. All the securities, docu2. TAXATION 93(2)-PROPERTY SUBJECT—ments and other evidences respecting the TRUST FUND OF ESTATE.
trust at all times since the creation of the A state by law may establish a taxing juris- trust have been kept physically in New York diction over a trust fund of personal property in the exclusive custody and control of the created by will of a resident, administered by appointees of its own courts, 'of which the evi- trustee there resident, by concurrent assent dences of title, securities, and assets are kept of all the trustees. Under the law of the in the possession of a resident trustee, though state of New York the trustees must act as he shares his fiduciary duties with nonresident a unit and all power possessed by them must associates.
be exercised by them as a body; and the [Ed. Note. For other cases, see Taxation, trust fund still forms a part of the estate of Cent. Dig. § 183; Dec. Dig. Om 93(2).]
the testator, and if the trust should fail for 3. TAXATION 93(2)—PROPERTY SUBJECT, want of takers, the property would become PROPERTY IN POSSESSION OF TRUSTEE. When there are several trustees, one or more
vested in the Supreme Court of New York of whom is domiciled in the state of origin of to be distributed according to law. The law the trust, and the corporeal custody of the secu- of New York relative to the taxation of perrities of the trust is with that trustee at his domi- sonal property kept within that state in the cile, and the title of the trustees is joint, and their hands of executors and trustees appointed powers must be exercised as a unit, there is no such several ownership in one trustee, resident by the courts of that state is in substance outside the state of the establishment of the trust, that when "the will of a deceased resident but resident in Massachusetts, as brings him of New York appoints as executors and truswithin the scope of the tax law as to trust property; St. 1909, c. 490, pt. 1, § 23, cl
. 5, provid- tees a resident of the state of New Jersey ing that as to personal property held in trust, and two residents of the state of New York, the income of which is payable to another per- the amount of an assessment for personal son, if there are two or more trustees residing property under the control of the executors in different places, the property shall be assessed and trustees in the state of New York is not to them in equal proportions in such places.
[Ed. Note.--For other cases, see Taxation, by reason of the nonresidence of the third Cent, Dig. § 183; Dec. Dig. 93(2).]
executor and trustee limited to two-thirds of
the amount of such personal property,” but Report from Superior Court, Worcester extends to the whole. People ex rel. FarmCounty.
ers' Loan & Trust Co. v. Wells, 94 App. Div. Action by Williams A. Newcomb, Tax Col-463, 465, 87 N. Y. Supp. 745, 88 N. Y. Supp. lector, against Timothy Paige. Finding for 1113, affirmed in 179 N. Y. 566, 71 N. E. 1136. plaintiff, and case reported to the full court. We interpret this statement of the law of Judgment for defendant.
New York to mean that all personal property
held by executors and trustees appointed by Ernest H. Vaughan, Edward T. Esty, and the courts of New York acting within their Jay Clark, Jr., all of Worcester, for plain- jurisdiction and actually situated in the state tiff. George D. Storrs, of Ware, for defend-of New York is taxable there in case such ant.
property is held by executors or trustees one
or more of whom reside in the state of New RUGG, C. J. This is an action by the tax York and one or more of whom reside in ancollector of the town of Hardwick to recover other state. People ex rel. McHarg v. Gaus, a tax assessed to the defendant for the year 169 N. Y. 19, 61 N. E. 987.
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
This statement of facts shows that in sub- light of the entire act, and of the general stance and effect, where one or more of sever- principles of law as to taxation, do not subal trustees is a resident of New York and ject to a property tax here personal property the securities in which the trust is invested held by several trustees, only one of whom are kept physically in New York, the laws of is a resident of this commonwealth, under apNew York have established a kind of cus- pointment of the court of a sister state of tody in the courts of that state for a trust the Union by virtue of the will of a testator fund administered as is the one at bar, and resident in that state, to be executed accorda domicile of the trust fund for purposes of ing to its law and actually deposited and taxation, with the trustee resident in that continuously kept in such foreign state in state.
the hands of a cotrustee there resident, [1, 2]. The Massachusetts tax law apparent- where it is subject to taxation and a tax ly was not phrased with a view to the exact there is paid on its account. The final sensituation here presented. But in clause 7, Stence of the clause, to the effect that when 23, pt. 1, c. 490, of St. 1909, the right of the the trustee is not a resident of this commonLegislature to establish a domicile for an wealth, the fund shall be "assessed to the estate in process of settlement in the probate person to whom the income is payable in the court is asserted by a provision to the effect place where he resides if it is not legally taxthat personal property of a deceased residented to
trustee under a testamenshall be assessed to the estate until after the tary trust in any other state," is some indicaappointment of an executor or administrator, tion of a legislative purpose that a trust fund and then to such executor or administrator lawfully within the taxing jurisdiction of anfor three years (unless sooner distributed and other state and there making a just contributhe statute complied with) "in the city or tion to the support of government, should town in which the deceased last dwelt." It not be made liable to another tax here. The would be a hard thing to say that a nonresi-theory of official residence of an executor or dent executor or administrator might be trustee at the county seat or within the jutaxed lawfully for the same property at his risdiction of his appointment apart from domicile on the theory that the title to such some express provision of the taxing statute, personal property was in him. Seemingly it finds no support in our cases although adoptalso would be difficult to deny to the Legisla- ed in some jurisdiction, and is not supported ture power to enact that a trust fund held by by the weight of authority. Welch v. Boston, one or more resident and one or more non- 221 Mass. 155, and cases collected at page resident trustees under appointment froin our 161, 109 N. E. 174. But a state by law may courts, to be administered according to our establish a taxing jurisdiction over a trust law, should not have a domicile for taxation fund of personal property created by wills purposes within this commonwealth.
of its residents, administered by appointees maxim “mobilia sequuntur personam” is of of its own courts, evidences of title, securities general application. Kirtland v. Hotchkiss, and assets of which are kept within its bor100 U. S. 491, 497, 25 L. Ed. 558; State Tax ders in the possession of a resident trustee, on Foreign Held Bonds, 15 Wall. 300, 21 L. although sharing such fiduciary duty with Ed. 179; Bellows Falls Power Co. v. Com- nonresident associates. When that is the monwealth, 222 Mass. 57, 60, 109 N. E. 891. law of a sister state, as in the case at bar, But there are numerous cases where it is interstate comity would require plain and unheld that a state may establish a taxation interstate comity would require plain and unheld that a state may establish a taxation equivocal statutory words to indicate an insitus for personal property intangible in na. tention by the Legislature to subject such ture physically within its control, although this may not always and necessarily exclude trust property to taxation in this state. taxation by the state of the domicile of the simply because of the residence here of one owner. See, for example, Liverpool & Lon- of several trustees. Johnson v. Oregon City. don & Globe Insurance Co. v. Assessors for 3 Or. 13; Rand v. Pittsfield, 70 N. H. 530.
49 Atl. 88. the Parish of Orleans, 221 U, S. 346, 31 Sup. Ct. 550, 55 L. Ed. 762, L. R. A. 1915C, 903,
 When there are several trustees, one or and cases there collected. The provisions of more of whom is domiciled in the state of clause 5, $ 23, of the tax act, 1 read in the origin of the trust, and the corporeal custody
of the securities of the trust is with that 1 St. 1909, c. 490, pt. 1, § 23: "Fifth. Personal trustee at his domicile, and the title of the property held in trust by come of which is payable to another person, shali trustees is joint and their powers must be be assessed to the
trustee in the city or exercised as a unit, there is no such several town in which such other person resides, if within the commonwealth; and if he resides out of the ownership in one trustee resident outside the commonwealth it shall be assessed in the place state of the establishment of the trust, but where the are two or more ** trustees residing in dit resident in Massachusetts, as brings him ferent places, the property shall be assessed to them within the scope of our tax law as to the in equal proportions in such places. the
trustee is not an inhabitant of the trust property. St. 1909, c. 490, pt. 1, § 23. commonwealth, it shall be assessed to the person to whom the income is payable, in the place where Gallup v. Schmidt, 154 Ind. 196, 200, 55 N. E. he resides, if it is not legally taxed to
443; Commonwealth v. Peebles, 134 Ky. 125, 119 S. trustee under 3 testamentary trust in any other w. 774, 23 L. R. A. (N. S.) 1130, 20 Ann. Cas. 724; state."
Goodsite v. Lane, 139 Fed, 593, 72 C. C. A. 281.
Under these circumstances he alone as resi- the Workmen's Compensation Act (St. 1911, dent of this commonwealth does not hold the c. 751). title as owner within the commonwealth in Servant, Dec. Dig. 405(2).
[Ed. Note. For other cases, see Master and such sense as to bring him within the terms
For other definitions, see Words and Phrases, of the tax act. He cannot exercise ownership First and Second Series, Servant; Usual Course as a resident in this commonwealth, but only of Business.] by conjoint action with his fellow trustees, 2. MASTER AND SERVANT C367-INJURIESnone of whom are resident here, as to a fund
"INDEPENDENT CONTRACTOR." in substance in the custody of the courts of material in his own way, through his own serv
Where one is hired to move some building another jurisdiction. His ownership is not of ants, he is an "independent contractor." such character as to bring the taxable domi [Ed. Note.-For other cases, see Master and cile of the trust within the terms of our law. Servant, Dec. Dig. 367. The practical consequences of taxation of First and Second Series, Independent Contrac
For other definitions, see Words and Phrases, the entire trust fund by each state in which tor.] one of a number of trustees might live can- 3. MASTER AND SERVANT O367-INJURIESnot be overlooked. A fund designed to bene WORKMEN'S COMPENSATION ACT - INDEfit relatives and kindred might by diversity of PENDENT CONTRACTOR. laws as to taxation and exemptions in such 3, § 17, providing that if a subscriber contracts
Under Workmen's Compensation Act, pt. instances be greatly depleted in income by with an independent contractor to do the subthe payment of taxes and prove a barren scriber's work, and the association would, if the benefaction. Such an interpretation of the work were executed by employés immediately
employed by the subscribers, be liable for comtax law ought not to be given unless re-pensation to the employés, the association shall quired by words of unmistakable meaning. pay the employés such compensation as would See Kingsbury v. Chapin, 196 Mass. 533, 82 be payable if the contractor were a subscriber,
where claimant's employer was requested by N. E. 700, 13 Ann. Cas. 738.
contractors to send a teamster to load and car. The case at bar is distinguishable from ry concrete sills, wheelbarrows, etc., from a Welch v. Boston, 221 Mass. 155, 109 N. E. storehouse to premises where they were to be 174, where all the trustees resided in Massa- used, and claimant, a teamster, was so sent,
and injured in such work, he comes within the chusetts and nothing appeared as to the law statute, if the work was a part of the contracof the state where the trust was established. tor's business, and not merely ancillary and inIt is also different from Bellows Falls Power cidental thereto. Co. v. Commonwealth, 222 Mass. 51, 109 N. E.
[Ed. Note. For other cases, see Master and
Servant, Dec. Dig. 367.) 891, where the owner of shares of corporate
Suffolk stock was held subject to taxation notwith
Appeal from Superior Court; standing the laws of the state of domicile County. of the corporation.
Proceeding under the Workmen's CompenThe tax in the case at bar is not assessed sation Act by Patrick Comerford, employé, to the beneficiary and it is not necessary to opposed by the McDonald & Joslin Company,
employer, and the Contractor's Mutual Liaconsider that aspect of the tax law. The present statute does not go to the decree of the superior court, approving find
bility Insurance Company, insurer. From a length of expressing a clear intent to levy a tax upon the defendant in respect of the ing and decision of Industrial Accident New York trust under the circumstances here Board for the employé, the insurer appeals. disclosed. It is unnecessary to discuss the Recommitted, to allow further evidence. constitutional questions which in that event
Norman F. Hesseltine and J. Frank Scanwould arise.
nell, both of Boston, for appellant. E. M. Judgment for defendant,
Shanley, of Boston, for appellee.
PIERCE, J. (1) The evidence shows that (224 Mass, 571)
the employé, Comerford, was and had been In re COMERFORD.
for three years before the accident, in the
employment of one Connors as a teamster; In re CONTRACTORS' MUT. LIABILITY that the subscribers, McDonald & Joslin ComINS. CO.
pany speaking through a son of Joslin, the (Supreme Judicial Court of Massachusetts. evening before the accident told Connors that Suffolk. July 10, 1916.)
they "wanted a teamster to take some con1. MASTER AND SERVANT O405(2)-INJURIES
crete window sills, wheelbarrows, picks and -WORKMEN'S COMPENSATION ACT_"USUAL shovels out to Mattapan the next morning"; COURSE OF BUSINESS"_"SERVANT."
that these things to be taken were in the That claimant's employer was requested locker or inclosure at the corner of Langdon load some concrete sills, and that claimant was and Roswell streets; that the “locker” is sent and, while assisted by the son of one of just a storehouse where odds and ends of the contractors in carrying to his team some tools and staging are kept; that the subsills selected by the contractors, he was injur. scribers' business was contracting, building ed, does not show claimant to be a "servant" of the contractors, or engaged in the usual and construction work; that at the time of course of business of the contractors, within the accident the subscribers were construct
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