Imágenes de páginas
PDF
EPUB

SECOND DEPARTMENT, MARCH TERM, 1897.

[Vol. 15. court was whether the police justice erred on the evidence before him. The appellant declined to offer any evidence, and refused to crossexamine plaintiff's witnesses. There is no authority whatever for this claim of the appellant. Section 864 of the Code of Criminal Procedure is a re-enactment of 1 Revised Statutes, 647, section 28. There seems to have never been any dispute as to the true construction of this section, or any denial that its provisions required a trial faith, without notice, and for a valuable consideration; and that the conditions of the sale could not be enforced as against him, as no copy of the contract was filed in the proper office. It was held that "gas fixtures" were really "household goods," under section 7 of the act as it now stands; and that the failure to file conferred no rights upon the mortgagee as against the vendor.

The concession that if the goods at bar are to be considered as personalty, they are "household goods" would appear to be harmony with the reasoning in the opinion in Iden v. Sommers, and the numerous authorities cited. If these goods remain personal property after their annexation to the freehold, then the defendants are clearly liable to the plaintiff for conversion, unless there are some circumstances in the case at bar to raise the doctrine of equitable estoppel against the plaintiff. The learned counsel for the defendants asserts that the facts here are governed by the equitable rule, that where one of two innocent persons must suffer from the fraud of a third person, the loss shall fall upon him who has enabled such third person to do the wrong.

*

I doubt that this rule is applicable to this case at bar, for, to quote the words of the Court of Appeals in a very recent decision, that doctrine applies only in an emergency; it solves problems which have no other solution; it supplies a ground of decision where all others are absent; * it is a rule of last resort applicable only where all others fail," etc. (Rapps v. Gottlieb, 142 N. Y. 168.) In the opinion just quoted from the court refuses to apply this equitable rule in face of the repeated decisions that an assignee of a mortgagee takes no better title than his assignor. With equal reason, the rule cannot be relied upon to give a vendee of personal property any better title than his vendor, in the absence of any facts upon which an estoppel in pais could be based justly. (Ballard v. Burgett, 40 N. Y. 314; Austin v. Dye, 46 id. 500; Duffus v. Howard Furnace Co., N. Y. L. J., Oct. 6, 1896; S. C., 8 App. Div. 567.)

There are circumstances in this case under which it might be claimed that the plaintiff would be estopped from asserting title against these defendants as privies in contract with Titus, claiming under Annie Winter. It appears from the written proposal of the plaintiff that he knew Van Varick was to annex the goods to the freehold of Annie Winter. There is no proof that he was the agent of Annie Winter. He signed the contract as principal. There is no proof of the nature of the agreement between him and her. If she was a purchaser for value from Van Varick without notice, then the plaintiff would be estopped from asserting title against her, as he gave the goods to Van Varick with full notice that they were to be used in the completion of Annie Winter's house. Any estoppel in favor of

App. Div.]

SECOND DEPARTMENT, MARCH TERM, 1897.

de novo in the County Court. (Roy v. Targee, 7 Wend. 358; Peo ple ex rel. Kenfield v. Lyon, 83 Hun, 303; People ex rel. Comrs. of Charities v. Schildwachter, 87 id. 363.)

The amendments of 1890 to sections 749 and 751 of the Code of Criminal Procedure have not changed the character of the proceedings on appeals from orders in bastardy proceedings. The language of section 749 is for the review of "a judgment upon conviction." Winter would be available to her privies. (Union Dime Bank v. Wilmot, 94 N. Y. 221; Wood v. Seely, 32 id. 105; Campbell v. Hall, 16 id. 575.)

The practical difficulty in the way of this contention lies in the fact that there is no proof that Aunie Winter was a purchaser for value without notice. Estoppel is never presumed. While the law would ordinarily presume that the goods were sold rather than given, yet it it will not presume absence of notice and a purchase for a consideration for the purpose of divesting title by estoppel. Consideration and good faith must always be proved in such a case. (Jewett v. Palmer, 7 Johns. Ch. 65; Spicer v. Waters, 65 Barb. 227.) Here, however, there is no proof of any facts from which it can be inferred that Annie Winter was a purchaser in good faith for a valuable consideration. It seems quite clear that there are no circumstances in the case upon which an estoppel can be raised against the plaintiff by these defendants, except in so far as they may claim under Annie Winter. If she did not acquire title against the plaintiff, then neither did Titus nor these defendants.

It is claimed by the defendants, however, that the goods in question were so annexed to the real estate as to become a part thereof, and, consequently, lost their character of personal property, and that the plaintiff cannot follow them into the possession of subsequent purchasers of the realty in good faith and without notice. In all the cases where an owner of personal property lost title to his goods through the fact that by the acts of another they had become attached to the realty, the connection will be found to have been so substantial that the goods could not be disconnected from the realty without serious injury to it.

Such is Fryatt v. Sullican Co. (5 Hill, 116; S. C., 7 id. 529), where a hirer of engines and boilers so connected them with the freehold, "that they could not be removed without destroying the building in which they were placed."

In the case at bar there was certainly no such connection of the ranges and heaters. The ranges were connected with the freehold simply by an ordinary stove smoke pipe, and by screw couplings with the water pipes of the house; the heaters filled fireplaces and had no connection with the surrounding walls. The freehold would not have been impaired to any degree by their removal. Of course, unless other ranges and heaters were supplied, the use of the freehold would not be as beneficial.

This fact, however, will not, within the adjudged decisions, convert these goods into a part of the realty.

In Freeland v. Southworth (24 Wend. 191) it was decided that a cook stove, standing in a kitchen and connected with the freehold by a smoke pipe, did not

SECOND DEPARTMENT, MARCH TERM, 1897.

[Vol. 15. The orders made in bastardy proceedings are never so characterized by the Code, but are spoken of as orders of filiation. If there were no other means of review of decisions in bastardy cases than those prescribed by section 749, the court might be inclined to strain the interpretation of the term "a judgment upon conviction," so as to include such cases. But sections 861 to 880 provide a complete scheme for appeals in such cases, and prescribe the powers of the court on such appeals. It is unreasonable to suppose that, by the amendments to sections 749 and 751 of the Code it was intended to abrogate that scheme.

The order appealed from should be affirmed, with costs.

All concurred.

Order affirmed, with ten dollars costs and disbursements.

pass with the realty as a fixture, notwithstanding the fact that there was no fireplace in the room, and it could not be used beneficially without a stove.

The gas pipes in a house cannot be used without some form of a chandelier, yet chandeliers connected with the pipes by the ordinary screw couplings have been held not to pass with the freehold as fixtures, but to be "mere furniture, and, therefore, chattels, and not appurtenances to the building." (McKeage v. Hanover Fire Ins. Co., 81 N. Y. 38.)

It is contended, however, that these ranges and heaters became fixtures within the doctrine of Ward v. Kilpatrick (85 N. Y. 413).

46

*
*

In the latter case mirror frames were actually annexed to the realty. They were so annexed during the process of building, and as part of that process," etc. In the opinion of the court it is stated that "their removal would leave unfinished walls, and require work upon the house to supply and repair their absence." "They formed part of the inner wall, * and formed the most prominent feature of the internal ornamentation." These mirror frames were in reality a part of the cabinet trim of the house. The court says that the difference between these facts and those in the McKeage case is "obvious." They are certainly not the same, and the ranges and heaters in the case at bar are connected with the realty in a manner closely similar to the mode of connection in the Mc Keage case. Their removal would require no "work upon the house to supply and repair their absence," but at most a mere substitution of other ranges and heaters of a similar nature or of ordinary stoves.

It is urged by the learned counsel for the defendants that in large cities cus tom and usage made ranges and heaters permanent portions of residential buildings, and that for the protection of subsequent purchasers of real property in good faith, public policy should give such custom the force of law.

There is much to be said in support of this contention, but it is a matter of legislative action rather than judicial decision. Judgment is directed for the plaintiff for the sum of $166.66 and costs and disbursements against the defendants.

App. Div.]

SECOND DEPARTMENT, MARCH TERM, 1897.

HENRY HAMILTON, Respondent, v. WILLIAM H. HAMILTON,
Appellant.

Action for money had and received

checks drawn by an agent to his own order from

his principal's bank account the agent must explain their use.

In an action brought to recover for moneys alleged to have been converted by the defendant, and to impress a trust upon certain real estate in which it was alleged that the defendant had invested the plaintiff's money, it appeared that the plaintiff was an undertaker, when, in 1872, he put his son, the defendant, who was then about the age of fifteen, at work in the business, in which the son continued to be occupied until the year 1893. In January, 1888, the defendant, by the plaintiff's direction, opened an account in a bank and another account in a trust company, in which accounts the proceeds of the business were deposited, and from which the expenses of the business and also certain obligations of the defendant were paid. The father could merely write his name; the son knew nothing about keeping accounts and kept no books beyond an order book, in which orders were entered, and, when the work was paid for, were marked "Paid."

Held, that the defendant was properly required to prove that the checks, which he drew to his own order or to the order of other parties to whom they were paid for the defendant's personal benefit or on his account, were expended upon the plaintiff's account, and where the defendant failed to show this, that he was properly charged with the amount of such checks; That the defendant should not be charged with checks which he drew, while conducting the business of two grocery stores which had been assigned to the plaintiff by one of his debtors, to pay various persons who from time to time sold goods for use in the grocery stores, which business the plaintiff was continuing in order to realize the amount of his debt, and the proceeds of which were used in the plaintiff's undertaking business.

APPEAL by the defendant, William H. Hamilton, from a judg ment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 26th day of October, 1895, upon the report of a referee.

James W. Ridgway and Henry Melville, for the appellant.

Josiah T. Marean, for the respondent.

CULLEN, J.:

The plaintiff, among other business ventures, carried on the business of an undertaker in the city of Brooklyn. The defendant is the plaintiff's son. In the year 1872, when the defendant was about

SECOND DEPARTMENT, MARCH TERM, 1897.

[Vol. 15.

the age of fifteen years, the plaintiff put him at work in that business, where he continued until the year 1893, when he left his father's service and started a rival establishment. In January, 1888, the defendant, by his father's direction, opened an account in a bank, in which deposits were made from the proceeds of the business, and out of which, to some extent, the expenses and other obligations of the defendant were paid. Subsequently another account was opened in a trust company. After defendant left plaintiff's service the plaintiff brought this action, alleging that defendant had failed to account for the moneys received by him and had converted large portions of them to his own use, and invested the same, or part thereof, in certain real estate, and he prayed that defendant account, and that for any sum found due from him on an accounting, such real estate be impressed with a trust in favor of the plaintiff. The learned referee found the defendant liable for the sum of $18,319.57. Upon this report a judgment was entered in favor of the plaintiff, directing the sale of the defendant's realty and the recovery by plaintiff of any deficiency that there might be after applying to his claim the proceeds of the sale. From that judgment this appeal is taken.

The record before us is quite voluminous, and presents to us a vast number of items of payment by the defendant with which it was sought to charge him. The able and painstaking referee, before whom the case was tried, has written an elaborate opinion upon the questions disposed of by him. So far as he has charged the defendant with misappropriation of the plaintiff's funds, though a very large number of separate items are involved, he has divided them, and correctly divided them, into a few distinct classes, and the question of the defendant's liability, both on the proof and law, as to each item of each class, is substantially identical. The complaint in the action was, doubtless, modeled upon that in the case of The New York & Brooklyn Ferry Co. v. Moore (102 N. Y. 667; 18 Abb. N. C. 106). The trial of the case also, to some extent, proceeded on the same lines as those of the case cited. It was attempted to show that the plaintiff's business of undertaking realized greater profits after the defendant left his service than while he was employed, and also that the defendant had, during the period of his service, acquired property of greater value than could be accounted for by his income.

« AnteriorContinuar »