(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

STAMPING &

&

curing the same, together with drawings, | as stockholder in the corporation which the
patterns, machines, machinery and equip- plaintiff desires to reach and apply "in pay-
ment for the manufacture of the machines ment of her said claim against the defendant
covered by the invention and patent; that Buff."
after making the mortgage the Welding Com [1, 2] The foundation of the plaintiff's bill
pany by an indenture dated September 5, is a right on her part to collect from the
1911, transferred the exclusive right, title and Welding Company the principal of her bonds
interest to the property covered by the mort- or (if that is not now due) the amount of
gage to the defendant Buff and another, in the interest coupons which have matured.
consideration of and conditioned upon the It is the settled law of this commonwealth
grantees paying a royalty therein described that the right to collect a negotiable instru-
for all machines manufactured and sold by ment is in the holder of it. Nat. Pemberton
them under the patent. It is further alleged Bank v. Porter, 125 Mass. 333, 28 Am. Rep.
that by said royalty indenture the Welding 235; Lowell v. Bickford, 201 Mass. 543, 88
Company agreed that Buff and his associate N. E. 1, and cases cited.
might have the mortgage securing the seven From this it follows that a person who
hundred bonds aforesaid discharged at their is not the holder of a negotiable instrument
own sole expense, and coupled with that au- but who is entitled to become the holder of
thority was an agreement by Buff and his it is not in a position to bring an action or
associate that they would "indemnify and suit to collect it. On the face of the bill the
save harmless" the Welding Company "from plaintiff is not now the holder of the sev-
any loss, cost, charges, expenses, damages, enty-one bonds here in question. Putting
suits, actions and proceedings at law or eq- her allegations at the highest she has a right
uity" which the Welding Company "may to become the holder of those bonds.
bear, sustain, be at or be put to, for or by [3] The bill does not contain the allega-
reason or on account of the said bond mort- tions which are necessary to make it a bill
gage” aforesaid, “or the rights of any hold- of equitable replevin. The most favorable
ers of any bonds issued thereunder.” The assumption for the plaintiff is that it might
bill then alleged that in March, 1914, the de- be amended into such a bill. Treating the
fendant Buff procured possession of the bill as so amended, the plaintiff cannot have
plaintiff's bonds through fraud and deceit; the relief sought in this bill unless the re-
but that the defendant Buff claims that he lief here sought would be given to her as an
purchased the bonds from the plaintiff at incident to a bill of equitable replevin. It
that time. It is then alleged that the mort is plain that a court of equity which had tak-
gage was foreclosed in April, 1915. It is en jurisdiction of this bill as a bill of equi-
averred that the mortgage contained a provi- table replevin but would not keep jurisdic-
sion that in case of a foreclosure of the tion for the purpose of giving to the plain-
mortgage "the principal of all outstanding tiff the relief which she seeks in this bill on
bonds should forthwith become due and pay the ground that having taken jurisdiction
able notwithstanding anything contained in of the cause it would keep jurisdiction to ad-
said bonds" (and it appears from an inspec- minister full relief.
tion of the bonds that there is nothing to It follows that the bill in this suit is bad.
that effect in the bonds). It is averred that Until the plaintiff becomes the holder of
by reason of the foreclosure and by virtue of them she has not the right to collect these
this provision in the mortgage, the princi-bonds. In addition is that objection were
pal sum of the seventy-one bonds aforesaid removed by amending the bill so as to make
has become due and payable and that the it a bill of equitable replevin, the relief here
Welding Company now owes the plaintiff sought is not an incident to such a bill.
the principal of said bonds and the unpaid Under these circumstances, it is not nec-
interest coupons thereto attached. It is then essary to consider the further difficulties
alleged "that upon judgment being rendered which lie in the plaintiff's path in her en-
therefor against the defendant * * *deavor to collect the amount of these bonds
Welding Company, said company is entitled from the defendant Buff.
to recover over against the defendant Buff [4, 5] A decree dismissing this bill would
the amount of said judgment; that Buff con- not be a bar to any proper action or actions.
trols the Welding Company and for that rea- suit or suits, to enforce the matters here com-
son that the Welding Company would not plained of. Capaccio v. Merrill, 222 Mass.
enforce its right to recover indemnity from 308, 110 N. E. 626. In spite of that the bet-
Buff "in respect of any judgment the plain- ter practice is in such a case to provide in
tiff might obtain against said corporation in the decree that the bill is dismissed without
an action at law"; and that the Welding prejudice. The decree should be modified in
Company is insolvent. It is then alleged that way, and so modified should be affirmed.
that Buff is the owner of a valuable interest It is so ordered.

(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
UNDER ANCILLARY ADMINISTRATION.
The provisions of St. 1909, c. 490, pt. 1,

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.

The

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

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes