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and by direction of deceased, drew it. This evidence was duly objected to by the petitioner as calling for the disclosure of a communication between an attorney and his client, disclosure of which by the attorney was prohibited by section 835 of the Code of Civil Procedure, and exception duly taken to its admission. If, therefore, the attorney was, under the circumstances of this case, prohibited by the section referred to from disclosing the contents of that will, then the erroneous admission of his evidence would necessarily require the reversal of the decree. But it appears that, while the attorney was not a witness to the will, yet the directions for its preparation were given him by the deceased in the presence of a third person, Mrs. Taft, a friend of deceased, whom she had requested to accompany her to the attorney's office, and that after the will was prepared by him he read it aloud in the presence and hearing of both Mrs. Taft and the deceased. Mrs. Taft was a witness to the execution of this will, and she, as well as the attorney, gave evidence as to its execution. Under these circumstances, the communications between the attorney and his client do not partake of that confidential character, nor is the relation occupied by the attorney and client in regard to such communications of the confidential nature, disclosure of which is prohibited by the section above referred to. Baumann v. Steingester, 213 N. Y. 328, 107 N. E. 578. This court has also so held in two cases in which the same question arose. See Matter of Barnes, 70 App. Div. 523, 75 N. Y. Supp. 373; Matter of Eckler, 126 App. Div. 199, 110 N. Y. Supp. 650.

The failure of contestants to produce the other subscribing witness for examination on the hearing was sufficiently explained.

The decree should be affirmed, with costs to respondents payable out of the estate.

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PFOHL et al. v. RUPP et al.

(Supreme Court, Appellate Division, Fourth Department. March 3, 1915.)

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TRESPASS C 61-CUTTING TREES—TREBLE DAMAGES--STATUTES.

Under Code Civ. Proc. $S 1667, 1668, authorizing treble damages where a person cuts down any tree on the land of another without the owner's leave, one entitled to recover for cutting trees within a public highway, on which his premises abut, may not recover treble damages. [Ed. Note.-For other cases, see Trespass, Cent. Dig. § 147; Dec. Dig. 61.]

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Appeal from Trial Term, Erie County.

Action by Henry P. Pfohl and another against John P. Rupp and another. From a judgment for plaintiffs, and from an order denying motion for new trial made on the minutes of the court, defendants appeal. Modified and affirmed.

See, also, 163 App. Div. 938, 148 N. Y. Supp. 1138.
Argued before KRUSE, P. J., and ROBSON, FOOTE, LAM-
BERT, and MERRELL, JJ.
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H. W. Huntington and Andrew T. Beasley, both of Buffalo, for appellants.

Mark P. Kerr, of Lancaster, for respondents.

PER CURIAM. This action was for trespass in cutting without plaintiffs' consent two shade trees, which plaintiffs alleged were at that time growing upon their land. Treble damages were demanded in the complaint. The defense was a general denial.

The court seems to have instructed the jury to the effect that one of the theories upon which plaintiffs might be found entitled to a recovery of damages was that, though the trees may at the time they were cut have been growing upon premises the fee of which was not in plaintiffs, yet if they were found to be within the limits of a public highway, upon which plaintiffs' premises abutted, and if their destruction was not necessary for the purpose of improving the highway; plaintiffs might still be entitled to damages for the destruction of the trees. Donahue v. Keystone Gas Co., 181 N. Y. 313, 73 N. E. 1108, 70 L. R. A. 761, 106 Am, St. Rep. 549. If the jury adopted this theory in awarding damages, then the damages awarded were for the loss of plaintiffs' easement in the trees, and not for cutting trees which plaintiffs owned. It seems that such damages, which are necessarily confined to the actual damages sustained, may be recovered in an action brought for treble damages under sections 1667 and 1668 of the Code of Civil Procedure. Dubois v. Beaver, 25 N. Y. 123, 82 Am. Dec. 326. But in such case the recovery is not had as owner of the trees cut, which is a prerequisite to the right to recovery of treble damages under the Code sections above referred to. So far as applicable to the present action, these sections provide only that treble damages may be recovered in a case where a person "cuts down

on the land of another without the owner's leave." Kellar v. Central Telephone & Telegraph Co., 53 Misc. Rep. 523, 105 N. Y. Supp. 63.

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The judgment should be reversed, and a new trial granted, with costs to appellant to abide event, unless the plaintiffs, within 20 days after the entry of the order herein and notice of entry thereof, stipulate that the judgment may be amended as of the date of entry thereof by striking therefrom all provisions as to the award of treble damages, and that the damages awarded thereby be reduced to the sum of $150, in which case the judgment, as so modified, is affirmed, without costs of this appeal to either party.

(166 App. Div. 547)

In re OSBORNE.

(Supreme Court, Appellate Division, Second Department. March 12, 1915.) 1. REMAINDERS 4—"CONTINGENT REMAINDER.”

A remainder over on the death of a life tenant to such persons as would take her property at her death under the statute of distributions during her lifetime, and while her husband, father, mother, brother, and sisters were living, was a "contingent remainder," as none of them might sur

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vive her, in which event her next of kin would take directly, and not by representation.

(Ed. Note.-For other cases, see Remainders, Cent. Dig. & 2; Dec. Dig,

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For other definitions, see Words and Phrases, First and Second Series,
Contingent Remainder.]
2. TRUSTS Cw273–STOCK DIVIDEND ON PRINCIPAL,RIGHTS OF LIFE TENANT
AND REMAINDERMEN.

Where a stock dividend on stock held in trust was to be apportioned
between the life tenant and the trustee for the remaindermen in propor-
tions depending upon the amount of the surplus of the corporation at the
time such dividend was authorized, that the same meeting of directors
which declared such dividend, which had been previously authorized by
the stockbolders, also authorized a cash dividend of $1,800,000 out of the
profits of the corporation, the authorization of the stock dividend and of
the cash dividend did not make it the same transaction, and the respec-
tive shares would be determined on the basis of the corporation's surplus
after the stock dividend and before the cash dividend was authorized.
[Ed. Note.-For other cases, see Trusts, Cent. Dig. $ 386; Dec. Dig.

273.]
Appeal from Surrogate's Court, Kings County.

In the matter of the judicial settlement of the accounts of James W. Osborne, as executor and trustee under the will of Eugene La Grove, deceased. From part of a decree of the Surrogate's Court, the executor and trustee appeals. Decree, in so far as appealed from, affirmed.

Argued before JENKS, P. J., and BURR, THOMAS, CARR, and RICH, JJ.

Gilbert D. Lamb, of New York City (Robert D. Petty, of New York City, on the brief), for appellant.

Jerry A. Wernberg, of Brooklyn, for respondent.

CARR, J. This is an appeal from a decree of the Surrogate's Court in Kings County. It is the last phase of a litigation which has been before this court in 153 App. Div. 312, 138 N. Y. Supp. 18, and before the Court of Appeals in 209 N. Y. 450, 103 N. E. 723, 823, 50 L. R. A. (N. S.) 510.

[1] In the Court of Appeals, certain rules were declared as to the apportionment of a corporation stock dividend between a life tenant and the trustee of a fund held for her life, with remainder over on her death to such persons as would take her property at her death under the statute of distributions. She is yet alive, and she has a husband, father, mother, brother, and sisters. The remainder seems to us contingent, as none of these persons may survive the life tenant, in which event her next of kin would take directly, and not by representation. All these persons were brought into the accounting proceeding, none of them has appealed, and therefore the life tenant urges that this appeal by the trustee should be dismissed. We think this contention is not good under the facts of this case.

[?] The Singer Sewing Machine Company declared a stock dividend in which this estate is interested to the extent of 2,290 shares. Under the decision of the Court of Appeals, this stock dividend is For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

152 N.Y.S.-4

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apportionable between the life tenant and the trustee in proportions depending upon the amount of the surplus of the corporation at the time stock dividend was authorized. The life tenant claims 652.722 shares; while the trustee contends that the life tenant is entitled to but 527.722 shares. As the shares of this corporation are very valuable, the money value in dispute is very substantial. The controversy arises as follows:

On June 2, 1910, the directors of the Singer Company adopted a resolution to call a special meeting of the stockholders to pass upon the question of a stock dividend. On June 16th the special meeting of the stockholders authorized the stock dividend, and "to issue forthwith in payment thereof certificates of fully paid nonassessable stock, to the stockholders of record at this date, in the amounts in which they are respectively entitled to the same." On June 17th the directors met and declared the stock dividend, an directed the certificates "to issue forthwith." As a matter of fact, the certificates were not delivered until some days later.

There is no dispute as to the law, by either counsel, that the right to the stock became vested when the dividend was authorized, even though the certificates were actually delivered later. If there was no other circumstance in this case, then the surplus of the corporation would be computable at the time the stock dividend was authorized, and the life tenant would be right incontestably in her claim as to the proportion of the stock dividend to be allotted to her. However, at the same meeting of the directors of the Singer Company, but after the stock dividend was authorized, a resolution was adopted authorizing a cash dividend of the sum of $1,800,000 out of the profits of the corporation. The trustee contends that, as both resolutions were adopted at the same meeting, they must be considered as but one transaction, and that the amount of the cash dividend of $1,800,000 must be considered as having been deducted from the surplus of the corporation as a basis for the declaration of the stock dividend.

We think not. The cash dividend was declared by the directors in the fullness of their power as directors. The stock dividend was authorized by the stockholders at prior special meeting, and in making the stock dividend the directors but carried out the authorization of the stockholders, and when that dividend was declared the transaction was consummated and all rights were vested. The subsequent declaration by the directors of a cash dividend, later in order, is not to be transferred from its actual order, so as to give it an effect qualifying the declaration of the stock dividend. The facts are unusual, and no direct precedents are cited by any party to the appeal.

The decree of the Surrogate's Court of Kings County, in so far as appealed from, should be affirmed, with costs to the trustee and the life tenant, payable out of the estate. All concur, except JENKS, P. J., who took no part.

(89 Misc. Rep. 559)

MARSULLO y. ROSENDORF et al.

(Supreme Court, Special Term, New York County. January, 1915.) 1. DESCENT AND DISTRIBUTION Om 157-CREDITORS OF HEIR–NATURE AND

SCOPE OF REMEDY-ADEQUATE REMEDY AT LAW.

Where the estate of the father of defendant judgment debtor was being administered, and the judgment creditor had an adequate remedy at law by execution against defendant's real estate, no fråudulent conveyances of debtor's property having been made, and there being no impediments to the sale of such property, an equitable action could not be maintained by the judgment creditor to subject to his claim defendant's share of the personal assets of his father's estate.

[Ed. Note. For other cases, see Descent and Distribution, Cent. Dig.

88 530-532; Dec. Dig. 157.] 2. CREDITORS' SUIT C8-NATURE AND SCOPE OF REMEDY-STATUTE.

Under Code Civ. Proc. $ 1873, regulating what property may be reached by a judgment creditor's action, such creditor cannot maintain the action to reach share of his judgment debtor in the personal estate of bis father in course of administration,

(Ed. Note. For other cases, see Creditors' Suit, Cent. Dig. 88 12-41; Dec. Dig. 8.] Action by Dominick Marsullo against Hugo D. Rosendorf and others. Complaint dismissed.

Saxe, Powell & Silver, of New York City (Martin Saxe, of New York City, of counsel), for plaintiff.

Max Altmayer, of New York City, for defendant Rosendorf.

GIEGERICH, J. [1] I do not think the plaintiff has made out any case for equitable relief. It appears that the judgment debtor is seized of individual shares in several parcels of real property. It is not sought to set aside any fraudulent conveyances of this or any other property, nor to remove any impediments to the sale of the debtor's real property on execution, for there appear to be none such. I cannot see any ground for the maintenance of an equitable action, the purpose of which is to procure satisfaction of the plaintiff's judgment from the personal assets of his father's estate, which is in course of administration, when the plaintiff apparently has an adequate remedy at law in an execution sale of the debtor's real property. Until that remedy has been exhausted and shown to be insufficient, an action of this kind ought not to be maintainable. See Heyl v. Taylor, 137 App. Div. 641, 122 N. Y. Supp. 279.

[2] It is not quite clear whether or not the plaintiff seeks to subject the debtor's interest in the real property formerly belonging to his father to the satisfaction of the judgment debt in this action. If so, the answer is that such property cannot be reached in the statutory action (Code of Civil Procedure, § 1873), and that there is no ground for the maintenance of any action with regard to it under the general equity jurisdiction of the court, because there is no obstacle to be removed before the plaintiff can sell such property under his judgment. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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