DIVORCE. ALLOWANCE.

APPEAL.

N. Y. SUPERIOR COURT. GENERAL TERM.

Carrie Uhlman, respt., v. Simon Uhlman, applt.

Decided March 2, 1885.

In an action for divorce, the court in ex

ercising its discretion in granting an al

lowance should consider that in the end

the party directed to pay money may be

in the right, and should provide as far as possible for such a contingency. It should ascertain what has been and will be the quantum and kind of litigation sufficient for the proper investigation of the issues. Where an allowance is asked for two coun

sel, the necessity for two counsel must affirmatively appear.

Modification of order as to amount does not necessarily carry a right to direction for repayment of excess.

Compliance with an absolute direction to pay is not taking a benefit under the order so as to prevent an appeal.

Appeal by defendant from order granting plaintiff an allowance of $2,750 for counsel fees and expenses; and motion to dismiss the appeal.

The action was for divorce, and the allowance was made to two counsel. Payment was made by defendant as directed by the order.

Wetmore & Jenner, for applt. R. S. Newcombe and Chauncey S. Truax, for respt.

Held, That when it clearly appears that a party has no case or no defense, a court may, in its discretion, refuse to make an allowance. When this does not clearly appear, the discretion of the court should consider that in the end the party directed to pay money may be shown to be in the right, and should provide, as far as possible,

The

for such a contingency. In so providing it should find what has been and what will be the quantum and kind of litigation sufficient for the proper investigation of the issues. All cases should have regard to public policy. Each case makes a certain sort of precedent, and such precedent should be used in the light of the policy. plaintiff was bound to show affirmatively why the employment of two counsel was necessary. One of them was the plaintiff's attorney. As attorney he would not be entitled, except under special conditions, to such an amount as one-half of the allowance would be. As counsel there was not shown to be any necessity for another. The same is true of the associate counsel. Either of those gentlemen was fully able to conduct the litigation singly. No greater allowance should have been made for services rendered up to July, 1884, than $1,500.

Further held, That the mere modification of the order does not give the defendant a right to a direction that plaintiff repay the excess. To give the defendant a right to restitution, by order or by action, if indeed there is a right of restitution, depends upon facts outside of this record that will have to be considered with it, should any demand for restitution be made. The same may be said of a suggestion that the order should be so modified as to apply the excess to compensation for services after July, 1884. The mere fact of payment under the order does not necessarily result in the defendant

having no substantial interest in a modification by the reduction of the amount.

The payment by defendant was made the ground of a motion to dismiss the appeal, on the ground that he thereby gained leave to compel plaintiff to proceed in the action, and for himself to proceed. Held, That the direction for payment was unconditional. If there had been no further proceedings payment could have been enforced. The allowance regarded past proceedings. The right to proceed and to compel plaintiff were the consequences of the payment and formed no condition of the order

to pay.

Motion to dismiss appeal denied, without costs. Order modified by reducing the amount of the allowance for expenses to $1,500, and as so modified, affirmed, without costs.

had. In this case the court refused to compel the plaintiff to elect which of the above actions he would proceed upon.

Appeal from order order denying motion that plaintiff be compelled to elect one of the causes of action alleged in the complaint. The first cause of action was for damages from false representations, viz., that a certain yacht then offered for sale by defendant to plaintiff did not leak and was sound and in perfect condition. The second was for damages from a breach of a warranty upon the sale of the yacht, viz., defendant falsely warranted said yacht not to leak, and to be sound and in perfect condition.

John E. Parsons, for applt. Roger A. Pryor, for respt. Held, That whether a party should be compelled to elect to proceed upon one of two causes of action stated in the complaint rests

ELECTION OF REMEDIES.

N. Y. SUPERIOR COURT. GENERAL TERM.

James M. Seymour, respt., v. Pierre Lorillard, applt.

Decided March 2, 1885.

Whether a party should be compelled to elect to proceed upon one of two causes of action stated in the complaint rests in the discretion of the court, where it has such power.

A cause of action for false representations and a cause of action for breach of warranty, both concerning the same matters, are separate and independent though under the allegations of the complaint containing them but one recovery can be

case where the court has power to compel an election. If in this case the plaintiff has not improperly joined two causes of action, so that the complaint is not demurrable, the merits of both may be definitely determined in this action. If the complaint be demurrable, defendant should go at once to the specific remedy pointed out by the Code; or again, if he do not demur, the issues upon the whole of the complaint may be tried, reserving an opinion, however, as to the power of the judge at the trial to compel an election based upon the appearance then of facts which cannot now be perceived from the pleadings only.

This is not an instance of an endeavor to state the same cause of action in two forms. There are two causes of action that are not inconsistent. The fact, if it be a fact, that the plaintiff can recover according to the allegations of the complaint but one sum of money under either cause of action or under both does not and should not deprive the plaintiff of both methods of attaining his rights. The question is, whether in the plaintiff's using both at one time, or in one proceeding, he will embarrass the defendant in his defense to either or to both, when no such consequence would follow and no embarrassment of plaintiff's legal remedy would happen if he were obliged to bring two actions. The only way in which the defendant could be harmed, if at all, would arise from the plaintiff endeavoring

to show that the defendant was guilty of a fraud as well as of breach of contract, and thus the jurors receive an unfavorable impression which might affect their verdict. In the present case it has little force, for practically all the facts would be in evidence under either cause of action.

Order affirmed, with $10 costs and disbursements.

Opinion per curiam; Sedgwick, Ch. J., and Truax, J., sitting.

APPEAL.

N. Y. COURT OF APPEALS. Zoeller, applt., v. Riley, sheriff, respt.

Decided March 24, 1885.

In an action not founded on contract the

sum for which the complaint demands judgment is to be deemed the amount of the matter in controversy within § 191 of the Code.

This was a motion to dismiss the appeal in the above entitled action on the ground that the amount in controversy is less than $500. It appeared that said action was brought to recover of defendant, as sheriff, the value of a laundalet alleged in the complaint to be worth $500, for which amount Plaintiff judgment was asked. was the only witness sworn on the trial, and he testified that said vehicle was worth $300.

Morris & Pearsall, for motion.
A. H. Dailey, opposed.

Held, That the action not being founded on contract, the sum for which the complaint demands judgment is deemed to be the amount of the matter in controversy within the meaning of section 191 of the Code. If plaintiff succeeds upon his appeal, on a new trial it will be open to him to show that the carriage was worth $500

or more.

Motion denied.

Per curiam opinion. All con

cur.

PARTNERSHIP.

N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT.

Daniel B. Childs et al., respts., v. George J. Seabury, impl'd., applt.

Decided March 4, 1885.

C. & H. became special partners with S. & P. in a firm which had previously been composed of the latter alone, upon the

agreement that S. & P. would assume and pay all the existing indebtedness of the old firm. S. & P. failed to perform this agreement, but used the capital contributed by C. & H. to the new firm to discharge the indebtedness of the old firm. The new firm subsequently failed in business and compromised with its creditors, and thereafter C & H. brought an action to recover

less the amounts which they had drawn from the firm, as damages for the breach of the above mentioned agreement. Held, That in the absence of any evidence showing that the failure of the new firm was the result of the misappropriation of the capital contributed by the plaintiffs the

action could not be maintained.

Appeal from a judgment entered on the report of a referee.

In 1871 the defendants were copartners, under the firm name of Seabury & Porter, engaged in carrying on a drug business, and in April of that year they formed a limited co-partnership with the plaintiffs as special partners, and by the terms of the articles of copartnership then entered into the defendants agreed to assume, pay and discharge all the existing indebtedness of the firm of Seabury & Porter. They did not do so, however, but used the capital furnished by the plaintiffs for the new firm for the payment of the debts and liabilities of the old. In 1872 the new firm became insolvent, and made a general assignment for the benefit of its creditors,

Roger A. Pryor, for applt.

William G. Choate, for respts.

Held, That plaintiffs when they invested their money in the limited copartnership took the risks of the chances or contingencies of trade, and could not expect to have it repaid unless the business in which they had invested it was sufficiently successful to provide for it.

That, in the absence of proof that the firm failed in consequence of the misappropriation by defendants of the capital contributed by plaintiffs, the inference must be that disaster arose from circumstances not unusual in commercial life which occasion loss even when the business is conducted with seeming judgment and skill, and that therefore plaintiffs did not appear to have suffered any wrong and were not entitled to succeed.

Judgment reversed, and new trial ordered.

Opinion by Davis, P.J.; Daniels, J., concurs.

WILLS. TRUSTS.

with them for 25 per cent. of their claims. Thereafter this action was commenced by plaintiffs to recover the amount of the capital contributed by them to the new firm, less the amounts received by them from said firm, as

TERM. FIRST DEPT.

Robert Willets et al., exrs., applts., v. Sarah A. Willets et al., respts.

Decided March 4, 1885.

The will of the testator contained the fol

lowing clause: "I do give and bequeath to my son, R. W., my friends, W. H. M. and C. G., and my nephews, J. T. W., RR W., and E. B. W., and my son-inlaw E. M., the survivor and survivors of them, the sum of $100,000, relying upon them to dispose of the same for the benefit of such charitable and benevolent and educational purposes as they shall judge will most promote the comfort and improve the condition of the poor; or, in case any of my descendants should become poor and needy, then to apply in whole or in part to such descendants." Held, That there was no attempt to create an unauthorized trust, but that the gift was an absolute one and the provision of the will was valid.

Appeal from judgment of the Special Term adjudging a provision of the will of Samuel Willets, deceased, to be invalid, as being an attempt to create a trust not authorized by the laws of the State. The provision in question was as follows:

"I do give and bequeath to my son, R. W., my friends, W. H. M. and C. G., and my nephews, J. T. W., R. R. W., and E. B. W., and my son-in-law, E. M., the survivor and survivors of them, the sum of $100,000, relying upon them to dispose of the same for the benefit of such charitable and benevolent and educational purposes as they shall judge will most promote the comfort and improve the condition of the poor; or, in case any of my descendants should become poor and needy, then to apply, in whole or in part, to such descendant."

Wilson M. Powell, P. J. Fuller and Wm. G. Hoes, for applts.

H. D. F. Weekes and George H. Foster, for respts.

Held, That the words of the gift in the provision in question were clear and positive, and that the words, "survivor and survivors of them," referred to the death of the testator. 25 Wend., 119; 2 Hun, 531; 2 Redf. on Wills, 488.

That the gift, therefore, was one to the individuals named, or such of them as should survive the testator, of the whole sum in equal shares.

That plain words of gift are not to be cut down by implications which do not arise from necessary construction, 1 N. Y. Sup. Ct., Rep. 211, and that the words of gift in this case were followed by language simply descriptive of the motive that inspired the gift. That the word "relying" was only an utterance of confidence. That it was not an imperative expression, and did not impose any obligation or create any trust. 1 Jarman on Wills, 5 Am. Ed., 385-693; Story's Eq. Jur., 1069; 39 Hun, 126; 1 Simcox, 534; id., 542; 9 id., 319; 10 Eq. Cas. 267; 18 Beav., 372; 5 Mad. Ch., 434; 14 Simmons, 379; 3 Irish Eq., 629; 114 Mass., 66; 17 Johns., 281; 90 Conn., 342; 82 N. Y., 405; 14 W. Dig., 206; 5 Irish Eq., 373; Eng. L. R. 8 Ch. Div., 542; 2 Sim., N. S., 267; 81 N. Y., 359; 91 id., 465; 2 Redf. on Wills, 422, 423; Tiffany & Bullard on Trusts, 224, 225; Lewin on Trusts, 2 Am. Ed., 174; 20 Pa., 268.

33 N. Y., 97; 34 id., 584; 2 T. & C., 344; 95 N. Y., 76; id., 403, 420, distinguished.

That the gift was a valid one adopted, as to its form, by the