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App. Div.]

Second Department, March, 1910. such that the court can see that the right to or measure of relief cannot properly be determined on motion having regard to all interests affected, resort may be had to a bill in equity, or now, in this State, to an equitable action. There are several cases in other courts where jurisdiction in equity by original bill to set aside a judgment entered on an unauthorized appearance by attorney has been entertained. But all of them are marked by peculiar and special features, such as those to which we have adverted. (Shelton v. Tiffin, 6 How. [U. S.) 163; Harshey v. Blackmarr, 20 Iowa, 161; Wiley v. Pratt, 23 Ind. 628.) In Critchfield v. Porter (3 Ohio, 518) the Supreme Court of Ohio dismissed a bill filed for relief against a judgment rendered on an appearance of an attorney without authority, on the express ground that the remedy should be sought by application to the court in which the judgment was rendered. It seems to us that upon considerations, both of principle and policy, relief, except in special cases, should be sought on motion in the action.”

The court in Washbon v. Cope (144 N. Y. 287) in the opinion states: “We think the objection grounded upon the unauthorized appearance of her attorney and the non-service of any process upon her cannot prevail in this action. It has been settled by an unbroken line of decisions in this State, running many years back, that, unless under some peculiar and extraordinary circumstances, not existing in this case, the objection that a party was not served and an appearance by an attorney in a court of record for such party was unauthorized, and hence, that the judgment was without jurisdiction, cannot be taken in a collateral proceeding or action, and that the party is confined to a motion in the original action in order to obtain relief." (See, also, O'Connor v. Felix, 87 Hun, 179.) But the present question is not whether Shevill could have attacked the judgment in a separate action. He did not prefer such course. He considered that he was entitled to relief in the first action, and so moved, and cannot now assert that the adverse order has not the force of an adjudication. IIad he succeeded the opposite party would have been estopped. It was held that such an order was an adjudication in De Biase v. Hartfield (33 Misc. Rep. 316) and RUSSELL, J., said: “In the foreclosure action this court had proceeded to judgment of foreclosure and sale upon the faith

Second Department, March, 1910.

[Vol. 137. of a supposed proper service of the summons. It was then called upon by application of the defendant in that action to consider and determine the question of its own jurisdiction, with that defendant then voluntarily coming into the jurisdiction of the court, and did upon sucli application adjudicate the question of fact presented, and determined the status of that foreclosure action by final order. There is no reason why that determination should be collaterally attacked by any person who was a party to the proceeding in which this court arrived at its decision. The plaintiff in that action would have been bound for all purposes by the decision, and it is of equal force against the other party.” The court at Special Term held that plaintiff could not maintain the action on account of her laches and the Statute of Limitations. The doctrine of laches does not go to the maintenance of the action, but may have application in determining what equitable relief shall be granted with reference to improvements, if any, placed upon the land by a bona fide purchaser. Plaintiff is not barred by the Statute of Limitations. Her claim is that the statute did not begin to run until the death of the husband, Benjamin Shevill, who, subject to the mortgage, held a life estate as tenant by the curtesy. In that case the action was begin within twenty years and was in time. The respondents claim that the statute began to run from the date of sale on foreclosure. This claim is predicated upon the theory that the judgment and sale accelerated the remainder, if the interests of the heirs may be called such, by destroying the life estate. I think that ingenuity cannot sustain this contention. The purpose of an action to foreclose a mortgage is to extinguish liens and transmit through the mortgage to the purchaser on the sale the fee of the land. If in the present case the mortgagors, Sarah Shevill and her husband, Benjamin Shevill, had been living, they could have been made parties upon due service, and judgment rendered, and by sale pursuant thereto the fee would have been transferred to the purchaser. Such conveyance through the process of law would have carried the whole fee, and extinguished any possible life estate in the husband. But it chanced that the wife, the owner of the fee, had died, and thereby five owners in common of the fee took her place, subject, however, to the tenancy by the curtesy in the husband. What had been an entire fee in one ownership became a fee in five ownerships

App. Div.]

Second Department, March, 1910. and a life estate carved therefrom by the law. Hence it was necessary to serve each of the persons holding an estate in the land, and every person made a party and so served would be foreclosed of any right to assert title in the land because such person's title would have been conveyed to the purchaser. No estate is extinguished, but every estate is transmitted. Now, the estate in the husband is quite as distinctly an estate in the land as is the fee in the heirs. The estate conveyed to the purchaser is the estate in the heirs plus the estate in the husband, which united, make the whole fee. Assuming that Shevill's interest was properly conveyed on foreclosure it follows that four-fifths of the fee and the life estate in the whole fee were conveyed to the purchaser, and as to such four-fifthis the life estate merged in the fee. But the fee of one undivided fifth of the land was outstanding because plaintiff's interest was not transınitted and the life estate as to her interest continued, although it had been conveyed to the purchaser. The purchaser had no interest in which it could merge. So, after the sale on foreclosure Hoople owned the fee of four-fifths of the land and the life estate in one-fifth thereof, the fee of which was in plaintiff. This is the plain operation of the law in the transmission of the estate.

It was as impossible to destroy the life estate as it was to destroy the fee in an undivided fifth of the land. Estates are not destroyed nor barred, but the right of ownership is extinguished by conveyance. What the mortgagor and those succeeding to his interest had the purchaser takes after regular foreclosure. In that way he is connected in title with all previous conveyances, and he holds as if all the owners of estates in the land, brought into the action, had executed conveyances to himn. (Code Civ. Proc. $ 1632; Fogal v. Pirro, 17 Abb. Pr. 113; Green v. Mussey, 76 App. Div. 174; Marshall v. United States Trust Co., 93 id. 261, 262; Noonan v. Brennemann, 54 N. Y. Super. Ct. 337, 345; Georgia Pacific R. R. Co. v. Walker, 61 Miss. 481.) It follows from this that the Statute of Limitations against plaintiff did not begin to run until the death of Benjamin Shevill, the life tenant, in 1891. (Jefferson v. Bangs, 197 N. Y. 35; Jackson v. Johnson, 5 Cow. 74, 95, 96; Jackson v. Harsen, 7 id. 323, 327; Jackson v. Schoonmaker, 4 Johns. 390; Manolt v. Petrie, 65 How. Pr. 206, 209; Fogal v. Pirro, 17 Abb. Pr. 113; Randall v. Raab, 2 id. 307, 313; Ben

Second Department, March, 1910.

[Vol. 137. nett v. Garlock, 10 Hun, 328, 341; Gindrat v. Western Railway of Alabama, 96 Ala. 162; 19 L. R. A. 839.)

It is urged that Hoople became mortgagee in possession. He had the title to four-fifths of the land. Plaintiff owned the other undivided fifth, subject to the life estate which Hoople held. If he was a mortgagee in possession was he claiming as such to be in possession of the whole fee or only that which the plaintiff owned ? The plain fact is that he did not enter as mortgagee, he did not claim to be a mortgagee in possession of any part of the land, he did not clain it adversely against plaintiff as he must have done in order to bar her. (Becker v. McCrea, 193 N. Y. 423.)

The judginent should be affirmed as to defendant appellant Shevill, and reversed as to the plaintiff, and a new trial granted, with costs of the appeal to the plaintiff, and costs below to abide the final award of costs.

JENKS, Burr, Rich and CARR, JJ., concurred.

Judgment affirmed as to the appellant Shevill, and reversed as to the plaintiff, and a new trial granted, with costs of the appeal to the plaintiff, and costs below to abide the final award of costs.

LOLLIE FLANAGAN, an Infant, by CHARLES A. JANIN, Her Guardian

ad Litern, Respondent, v. NATHAN GOLDBERG and Thomas G. Baxter, Appellants.

Second Department, March 31, 1910.

Negligence -- injury to person attending theater – erroneous charge.

In an action against the proprietor of a theater to recover for injuries received

by a spectator who was struck by a board which fell, it is error to charge that, where the accident occurred after the plaintiff was admitted and seated, the burden was upon the defendant to show that he was not negligent rather than upon the plaintiff to prove the contrary.

APPEAL by the defendants, Nathan Goldberg and another, from a judgment of the Municipal Court of the city of New York, borough of Queens, in favor of the plaintiff, rendered on the 17th day of November, 1909.

App. Div.]

Second Department, March, 1910. Samuel I. Goldberg, for the appellants.

J. Baldwin Hand, for the respondent. THOMAS, J.:

Plaintiff attended a moving picture show at Rockaway Beach, and during the performance a board fell upon her, causing the injury for which the action is brought. Plaintiff's evidence tends to show that the board was some ten feet long, and that it had been placed against the inside wall of the room by defendants' servant. Defendants' evidence is to the effect that some children, running about on the adjoining premises, where building was in progress, removed, during the performance, a board from the side wall of the theater, and, pushing it through the hole, caused the injury.

If defendants negligently so placed the board that it fell and did the injury, they are liable. They would not be liable for an injury caused by a board thrown into the hall, unless the facts show that they had knowledge, actual or constructive, that the boys were committing depredations, or had done so, and thereupon negligently failed to protect those invited to the entertainment. The court charged, among other things: “In actions of this character, in fact in all actions, it is incumbent upon the plaintiff to prove by a preponderance of evidence his case. The rule is slightly different here, where in public places an injury occurs through some accident happening while there.” Defendants' counsel excepted to this charge, and thereupon the court charged, in effect, that after the plaintiff was admitted and seated, the burden was upon the defendants to show that defendants were not negligent, and not upon plaintiff to show that the defendants were negligent. For such error the judgment of the Municipal Court should be reversed and a new trial ordered, costs to abide the event.

HIRSCHBERG, P.J., BURR, Rich and Carr, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.

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