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DIVORCE. ALLOWANCE.

for such a contingency. In so proAPPEAL.

viding it should find what has

been and what will be the quantum N. Y. SUPERIOR COURT. GENERAL

and kind of litigation sufficient for TERM.

the proper investigation of the Carrie Uhlman, respt., v. Simon

issues. All cases should have reUhlman, applt.

gard to public policy. Each case Decided March 2, 1885.

makes a certain sort of precedent, In an action for divorce, the court in ex- and such precedent should be used

ercising its discretion in granting an al- in the light of the policy. The lowance should consider that in the end the party directed to pay money may be

plaintiff was bound to show affirmin the right, and should provide as far as

atively why the employment of possible for such a contingency. It should

two counsel was necessary.

One ascertain what has been and will be the of them was the plaintiff's attorquantum and kind of litigation sufficient for the proper investigation of the issues.

ney. As attorney he would not Where an allowance is asked for two coun

be entitled, except under special sel, the necessity for two counsel must

conditions, to such an amount as affirmatively appear.

one-half of the allowance would Moditication of order as to amount does not

be. As counsel there was not necessarily carry a right to direction for repayment of excess.

shown to be any necessity for anCompliance with an absolute direction to other. The same is true of the as

pay is not taking a benefit under the sociate counsel. Either of those order so as to prevent an appeal.

gentlemen was fully able to conAppeal by defendant from order duct the litigation singly. No granting plaintiff an allowance of greater allowance should have been $2,750 for counsel fees and ex- made for services rendered up to penses; and motion to dismiss the July, 1854, than $1,500. appeal.

Further held, That the mere The action was for divorce, and modification of the order does not the allowance was made to two give the defendant a right to a counsel. Payment was made by direction that plaintiff repay the defendant as directed by the order. excess. To give the defendant a

Wetmore & Jenner, for applt. right to restitution, by order or by

R. S. Newcombe and Chauncey action, if indeed there is a right of S. Truax, for respt.

restitution, depends upon facts outHeld, That when it clearly ap- side of this record that will have to pears that a party has no case or be considered with it, should any no defense, a court may, in its dis- demand for restitution be made. cretion, refuse to make an allow- The same may be said of a suggesance. When this does not clearly tion that the order should be so appear, the discretion of the court modified as to apply the excess to should consider that in the end the compensation for services after party directed to pay money may July, 1884. The mere fact of paybe shown to be in the right, and ment under the order does not should provide, as far as possible, necessarily result in the defendant

to pay.

having no substantial interest in a had. In this case the court refused to commodification by the reduction of pel the plaintiff to elect which of the above the amount.

actions he would proceed upon. The payment by defendant was Appeal from order denying made the ground of a motion to motion that plaintiff be compelled dismiss the appeal, on the ground to elect one of the causes of action that he thereby gained leave to alleged in the complaint. The first compel plaintiff to proceed in the cause of action was for damages action, and for himself to proceed. from false representations, viz.,

Held, That the direction for pay- that a certain yacht then offered ment was unconditional. If there for sale by defendant to plaintiff had been no further proceedings did not leak and was sound and in payment could have been enforced. perfect condition. The second was The allowance regarded past pro- for damages from a breach of a ceedings. The right to proceed warranty upon the sale of the and to compel plaintiff were the yacht,

yacht, viz., defendant falsely consequences of the payment and warranted said yacht not to leak, formed no condition of the order and to be sound and in perfect

condition. Motion to dismiss appeal denied, John E. Parsons, for applt. without costs. Order modified by Roger A. Pryor, for respt. reducing the amount of the allow- Held, That whether a party ance for expenses to $1,500, and as should be compelled to elect to proso modified, affirmed, without ceed upon one of two causes of costs.

action stated in the complaint rests Opinion by Sedgwick, Ch. J.; in the discretion of the court in a O'Gorman, J., concurs.

case where the court has power to compel an election. If in this

case the plaintiff has not impropELECTION OF REMEDIES.

erly joined two causes of action, N. Y. SUPERIOR COURT. GENERAL so that the complaint is not deTERM.

murrable, the merits of both may James M. Seymour, respt., v.

be definitely determined in this Pierre Lorillard, applt.

action. If the complaint be de

murrable, - defendant should go at Decided March 2, 1885.

once to the specific remedy pointed Whether a party should be compelled to out by the Code ; or again, if he elect to proceed upon one of two causes of do not demur, the issues upon the action stated in the complaint rests in

whole of the complaint may be the discretion of the court, where it has such power.

tried, reserving an opinion, howA cause of action for false representations ever, as to the power of the judge and a cause of action for breach of war- at the trial to compel an election ranty, both concerning the same matters,

based upon the appearance then of are separate and independent though under the allegations of the complaint con

facts which cannot now be pertaining them but one recovery can be

ceived from the pleadings only.

This is not an instance of an en- sum for which the complaint demands. deavor to state the same cause of judgment is to be deemed the amount of action in two forms. There are

the matter in controversy within 191

of the Code. two causes of action that are not inconsistent. The fact, if it be a

This was a motion to dismiss the fact, that the plaintiff can recover appeal in the above entitled action according to the allegations of the on the ground that the amount in complaint but one sum of money controversy is less than $310. It under either cause of action or appeared that said action was under both does not and should brought to recover of defendant,

, not deprive the plaintiff of both

as sheriff, the value of a laundalet methods of attaining his rights. alleged in the complaint to be The question is, whether in the

worth $500, for which amount plaintiff's using both at one time, judgment was asked. Plaintiff or in one proceeding, he will em

was the only witness sworn on the barrass the defendant in his defense trial, and he testified that said to either or to both, when no such

vehicle was worth $300. consequence would follow and no Morris & Pearsall, for motion. embarrassment of plaintiff's legal

A. H. Dailey, opposed. remedy would happen if he were

Held, That the action not being obliged to bring two actions. The founded on contract, the sum for only way in which the defendant which the complaint demands could be harmed, if at all, would judgment is deemed to be the arise from the plaintiff endeavoring amount of the matter in controto show that the defendant was versy within the meaning of section guilty of a fraud as well as of breach

191 of the Code. If plaintiff sucof contract, and thus the jurors re

ceeds upon his appeal, on a new ceive an unfavorable impression trial it will be open to him to show which might affect their verdict. that the carriage was worth $.500 In the present case it has little force, for practically all the facts

Motion denied. would be in evidence under either

Per curiam opinion. All concause of action.

cur.
Order affirmed, with $10 costs
and disbursements.

PARTNERSHIP.
Opinion per curiam ; Sedgwick, N. Y. SUPREME COURT.
Ch. J., and Truax, J., sitting.

GENERAL
TERM. FIRST DEPT.

Daniel B. Childs et al., respts., APPEAL.

v. George J. Seabury, impl’d., N. Y. COURT OF APPEALS.

applt. Zoeller, applt., v. Riley, sheriff,

Decided March 4, 1885. respt. Decided March 27, 1883.

C. & H. became special partners with S.

& P. in a firm which had previously been In an action not founded on contract the composed of the latter alone, upon the

or more.

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agreement that S. & P. would assume and damages for the breach of the pay all the existing indebtedness of the old

agreement on the part of defendfirm. S. & P. failed to perform this agreement, but used the capital contributed by

ants to assume and pay the debts

of the old firm. C. & H. to the new firm to discharge the indebtedness of the old firm. The new It did not appear that the failure firm subsequently failed in business and of the new firm was due in any compromised with its creditors, and thereafter C & H. brought an action to recover

way to the misappropriation of the the amount of capital contributed by them,

capital contributed by plaintiffs. less the amounts which they had drawn Roger A. Pryor, for applt. from the firm, as damages for the breach William G. Choate, for respts. of the above mentioned agreement. Held,

Held, That plaintiffs when they That in the absence of any evidence showing that the failure of the new firm was

invested their money in the limited the result of the misappropriation of the copartnership took the risks of the capital contributed by the plaintiffs the chances or contingencies of trade, action could not be maintained.

and could not expect to have it reAppeal from a judgment entered paid unless the business in which on the report of a referee.

they had invested it was sufficientIn 1871 the defendants were co- ly successful to provide for it. partners, under the firm name of That, in the absence of proof Seabury & Porter, engaged in that the firm failed in consequence carrying on a drug business, and of the misappropriation by defendin April of that year they formed ants of the capital contributed by a limited co-partnership with the plaintiffs, the inference must be plaintiffs as special partners, and that disaster arose from circumby the terms of the articles of co- stances not unusual in commercial partnership then entered into the life which occasion loss even when defendants agreed to assume, pay

the business is conducted with and discharge all the existing seeming judgment and skill, and indebtedness of the firm of Sea- that therefore plaintiffs did not bury & Porter. They did not do appear to have suffered any wrong so, however, but used the capital and were not entitled to succeed. furnished by the plaintiffs for the Judgment reversed, and new new firm for the payment of the trial ordered. debts and liabilities of the old. In Opinion by Davis, P.J.; Daniels, 1872 the new firm became insol- J., concurs. vent, and made a general assignment for the benefit of its creditors,

WILLS. TRUSTS. and subsequently compounded N. Y. SUPREME COURT. GENERAL with them for 25 per cent of their

TERM. FIRST DEPT. claims. Thereafter this action

Robert Willets et al., exrs., was commenced by plaintiffs to recover the amount of the capi-applts., v. Sarah A. Willets et al., tal contributed by them to the respts. new firm, less the amounts received Decided March 4, 1885. by them from said firm, as The will of the testator contained the fol

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lowing clause: “I do give and bequeath Held, That the words of the gift to my son, R. W., my friends, W. H. M.

in the provision in question were and C. G., and my nephews, J. T. W.,

clear and positive, and that the R RW., and E. B. W., and my son-inlaw E. M., the survivor and survivors of

words, “survivor and survivors of them, the sum of $100,000, relying upon them,” referred to the death of the them to dispose of the same for the testator. 25 Wend., 119; 2 Hun, benefit of such charitable and benevolent

531 ; 2 Redf. on Wills, 488. and educational purposes as they shall judge will most promote the comfort and That the gift, therefore, was one improve the condition of the poor; or, in to the individuals named, or such case any of my descendants should be

of them as should survive the tescome poor and needy, then to apply in

tator, of the whole sum in equal whole or in part to such descendants.” Held, That there was no attempt to create

shares. an unauthorized trust, but that the gift That plain words of gift are not was an absolute one and the provision of

to be cut down by implications the will was valid.

which do not arise from necessary Appeal from judgment of the construction, 1 N. Y. Sup. Ct., Special Term adjudging a provision Rep. 211, and that the words of of the will of Samuel Willets, gift in this case were followed by deceased, to be invalid, as being language simply descriptive of the an attempt to create a trust not

motive that inspired the gift. That authorized by the laws of the the word “relying” was only an State. The provision in question utterance of confidence. That it was as follows:

was not an imperative expression, “I do give and bequeath to my and did not impose any obligation son, R. W., my friends, W. H. M. or create any trust. 1 Jarman on and C. G., and my nephews, J. T. Wills, 5 Am. Ed., 385–693 ; Story's W., R. R. W., and E. B. W., and Eq. Jur., 1069; 39 Hun, 126; 1 my son-in-law, E. M., the survi. Simcox, 531; id., 542; 9 id., 319; vor and survivors of them, the 10 Eq. Cas. 267; 18 Beav., 372 ; 5 sum of $100,000, relying upon Mad. Ch., 431; 14 Simmons, 379; them to dispose of the same for the 3 Irish Eq., 629; 114 Mass., 66; benefit of such charitable and

17 Johns., 281 ; 90 Conn., 312 ; 82 benevolent and educational pur- N. Y., 105; 14 W. Dig., 206; 5 poses as they shall judge will Irish Eq., 373; Eng. L. R. & Ch. most promote the comfort and im- Div., 512; 2 Sim., N. S., 267; 81 prove the condition of the poor; N. Y., 359 ; 91 id., 465; 2 Redf. on or, in case any of my descendants Wills, 422, 423; Tiffany & Bullard should become poor and needy, on Trusts, 224, 225; Lewin on then to apply, in whole or in part,

Trusts, 2 Am. Ed., 174; 20 Pa., 265. to such descendant."

33 N. Y., 97; 3+ id., 584; 2 T. Wilson M. Powell, P. J. Fuller & C., 314 ; 95 N. Y., 76 ; il., 103, and Wm. G. Hoes, for applts. 420, distinguished.

H. D. F. Weekes and George H. That the gift was a valid one Foster, for respts.

adopted, as to its form, by the

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