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and 106 New York State Reporter

HARTMANN V. BURTIS et al. (Supreme Court, Appellate Division, Second Department. November 15, 19014

1. ATTACHMENT—ACTION on BoxD–MEAsuke of DAMAGES. The measure of the owner's damages in a suit on an attachment bond is not the value of the property sold under execution in the same action, but only the costs awarded on vacation of the attachment warrant, and interest on the value of the property for the time it was held under the

attachment; it not appearing that in vacating the attachment the court

held it void ab initio.

* SAME-DE MINIMIs NoN CURAT LEx. In a suit on an attachment bond, where a judgment for plaintiff was correct, except in failing to allow him interest on $400 for 15 days, the error was too insignificant to furnish ground for reversal

Appeal from special term, Nassau county.

Action by Joseph Hartmann against John R. Burtis and another. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, plaintiff appeals. Affirmed.

Argued before GOOD RICH, P. J., and BARTLETT, WOODWARD, HIRSCHBERG, and JENKS, J.J.

Lincoln B. Haskin, for appellant.
Henry P. Keith (J. W. Demarest, on the brief), for respondents.

WILLARD BARTLETT, J. In an action in the county court of Nassau county brought by John R. Burtis against Joseph Hartmann, a warrant of attachment against the property of Hartmann was granted by the county judge upon an undertaking in which John R. Burtis and John W. Burtis bound themselves, if Hartmann recovered judgment, or the warrant should be vacated, to pay all costs which might be awarded to Hartmann, and all damages which he might sustain by reason of the attachment, not exceeding the sum of $750. The sheriff made a levy under the warrant, and seized a considerable quantity of Hartmann's goods, Subsequently under an execution in the same action the sheriff sold the goods for the aggregate sum of $402. The attachment was still in force at the time of this sale. It was afterwards vacated, however, by an order of the county court; and the present action is brought by Hartmann against the parties who signed the undertaking to coforce their liability thereunder. The learned judge before whom the case was tried held that the plaintiff had proved no damage, except the sum of $10 which was awarded to Hartmann as costs by the order of the county court vacating the warrant. Accordingly he directed a verdict in favor of the plaintiff for that amount, and the plaintiff has now appealed on the ground that upon the proof he was entitled to recover a larger sum against the sureties.

I think the fact that the property brought $402 upon the ext: cution sale was some evidence that it was worth that amount. The goods were held by the sheriff 15 days under the attachment, so that the utmost damage which the evidence shows the plaintiff herein to have suffered, which is chargeable against the sureties upon the undertaking, is the lawful interest upon $402 for 15 days. This

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amount is so small that it brings the case within the rule that a judgment will not be reversed in order to award the appellant merely nominal damages. The case of Otis v. Jones, 21 Wend. 394, is cited as an authority adverse to the action of the learned trial judge. That case, however, differed radically from the case at bar. There the plaintiff's property had been first sold under an execution which had no judgment whatever to support it, so that the process was absolutely void; and the action was in tort, as for a conversion of the property by the person in whose name the execution was issued, who was also the purchaser at the sale. The rule applied was that laid down in Hanmer v. Wilsey, 17 Wend. 91,–that after one has wrongfully converted property he cannot show, in mitigation of damages, that he has subsequently seized and sold the property upon process in his own favor. Although this appears to be the settled rule in New York, it does not prevail in all the states. Thus, in Connecticut the lawful seizure and sale of property after it has been converted upon process against the owner can be shown in mitigation of damages, even where the last process under which the sale was had is in favor of the wrongdoer himself. Curtis v. Ward, 20 Conn. 204; Hopple v. Higbee, 23 N. J. Law, 342. But in New York, where the action is for conversion, the wrongdoer can only set up a subsequent lawful seizure and sale in mitigation of damages where the seizure is at the instance of a third person,

and not upon process in his own behalf. Ball v. Liney, 48 N. Y. 6,

14, 8 Am. Rep. 511. In the present case, however, the defendants are not sued as wrongdoers at all. They are sought to be charged upon the contract contained in the undertaking which they executed. Under that instrument it was not essential for the plaintiff herein to show that the warrant of attachment was void. The liability of the sureties was not made dependent upon the validity or invalidity of the attachment, but upon the future action of the county court in dealing with the process. The sureties were to become liable for the costs and such damages as Hartmann might sustain if the attachment should be vacated for any reason whatsoever. There is nothing in the record before us to show that the county

court held the attachment to be void. The order setting it aside

recites that it is made upon an affidavit of the plaintiff herein, and on all the affidavits and papers upon which the warrant was granted,

and it may well be that the reason which induced the county court

to vacate the warrant was that the plaintiff in the attachment suit did not sustain the burden of proof requisite to make out his right to the process. If this were so, the attachment was not void, and Hartmann's only right to redress against these sureties rested, not upon any tortious act on their part, but upon the liability which they had assumed by executing the written undertaking. I think the rule in Otis v. Jones, supra, has no application here, and that this case was properly disposed of below.

Judgment and order affirmed, with costs. All concur.

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and 106 New York State Reporter

QUADE v. BERTSCH et al. (Supreme Court, Appellate Division, Second Department. November 15, 1901)

1. WILLs—Pow ER OF Disposition—SUSPENSION. Testator, by his will, gave all his property to trustees to collect the income, pay taxes, repairs, and expenses, and the balance to his wife for life, and on her death to divide the estate into as many shares as there might be then living of their present children, including children who had died leaving issue, and on the death of each such child leaving issue to distribute the share of each child to such issue in equal shares, provided no share should be paid until the recipient is 21 years of age. Held, that on the death of the widow the estate was to be divided, and on the death of each of testator's children the class to take his share was determined, and their rights therein vested, and hence the will was not invalid as providing an unlawful suspension of the power of disposition. 2. SAME–MINority. Where a legacy to a grandchild is not invalid otherwise than as an un: lawful suspension of the power of disposition, such legacy will not be. come invalid because not to be paid to such child until he is 21 years of age.

Appeal from special term, Kings county.

Action by Caroline Quade against Peter Bertsch, individually and as executor and trustee under the will of William Broistedt, and others. From a judgment for defendants, plaintiff appeals. Affirmed.

This is an appeal from the judgment of the special term in an action brought to declare certain portions of the will of William Broistedt, deceased, invalid, in that they unlawfully suspended the ownership of personal property. The testator gave his estate to his executors upon trust for the following uses and purposes: “To collect and receive the rents, income, and profits of all my estate, real and personal, and after paying therefrom all taxes, assessments, and other charges upon my real estate, and keeping the buildings and improvements thereon in repair and insured, to apply the net income arising from my estate to the use of my wife, Caroline, during the term of her natural life, or so long as she shall remain unmarried. In case my said wife shall remarry after my decease, then I direct my said execu. tors and trustees to provide for and pay over to her from and after such remarriage, and during her natural life, the sum of $5,000 per annum, which last-mentioned income shall be all she shall have or receive from my estate from and after such remarriage. And I do hereby declare that the provisions herein made for my said wife are intended to be and are in lieu and bar of her dower and thirds in my estate. That at the death or remarriage of my wife I authorize, empower, and direct my executors and trustees, or such of them as may assume the execution of the trusts hereby created, to divide my estate into six equal parts or shares, and invest the same separately on bond or mortgage, or in United States government or state securities, and apply the net income of one of said equal sixth parts or shares to the use of my daughter Amelia Bertsch, wife of Peter Bertsch, during her natural life, and at her decease to pay, divide, and distribute the principal of such equal sixth part or share to and among the lawful issue of my said daughter Amelia equally; and upon the further trust to apply the net income of one other of the said equal sixth parts or shares to the use of my daughter Augusta during her life, and at her decease to pay, divide, and distribute the principal of such last-mentioned equal sixth part or share to and among the lawful issue of my said daughter Augusta equally; and upon the further trust to apply the net income of one other of said equal sixth parts or shares to the use of my daughter Caroline during her life, and at her decease to pay, divide, and distribute the principal of such last-mentioned equal sixth part or share to and among the lawful issue of my said daughter Caroline equally; and upon the further trust to apply the net income of one other of said equal sixth parts or shares to the use of my daughter Mena during her natural life, and at her decease to pay, divide, and distribute the principal of such last-mentioned sixth part or share to and among the lawful issue of my said daughter Mena equally; and upon the further trust to apply the net income-of one other of said equal sixth parts or shares to the use of my son, Henry Broistedt, during his natural life, and at his decease to pay, divide, and distribute the principal of such last-mentioned sixth part or share to and among the lawful issue of my said son, Henry, equally; and upon the further trust to apply the net income of one other of said equal sixth parts or shares to the use of my daughter Hannah during her natural life, and at her decease to pay, divide, and distribute the principal of such last-mentioned part or share to and among the lawful issue of my said daughter Hannah equally. In case either or any of my children shall die before me, or before the death or remarriage of my wife, or in case any child or children shall hereafter be born to me, who shall survive the death or remarriage of my wife, then it is my will that my executors upon the death or remarriage of my wife, instead of dividing my estate into six equal parts or shares as above provided, shall divide my estate into so many equal parts or shares as may be necessary to provide one for the use of each of my children then living, and one for the descendant or descendants then living of either or any of my children who may have died before the decease or remarriage of my said wife, and invest the same separately as above provided, and designate and set apart one of such shares for the use of each of my children then living and one for the descendant or descendants of each of my children who may have died leaving issue them surviving (per stirpes, and not per capita); and upon the further trust to apply the net income of each share set apart for my children as a foresaid to the use of the child for whom it shall be designated during his or her natural life, and at the decease of the child for whom it shall be set apart as aforesaid to pay, divide, and distribute the principal to and among the lawful issue of such child equally as and when such issue respectively attain the age of twenty-one years; and upon the further trust to pay, divide, and distribute the share designated and set apart for the descendant or descendants of any child who may have died before the death or remarriage of my wife to and among such descendants equally as and when they respectively attain the age of twenty-one years.” One of the children of the testator died previous to the death of the widow.

Argued before GOODRICH, P. J., and J.ENKS, WOODWARD, HIRSCHBERC, and SEWELL, JJ.

Albert K. Newman, for appellant. Louis Ehrenberg, George S. Espenscheid, and Thomas H. Troy, for respondents.

JENKS, J. As the absolute ownership is suspended for the life of the widow and for each share during the life of each child of the testator, the practical question upon this appeal is whether the gifts to the grandchildren are vested or contingent; or, in other words, is time annexed to the gifts, or only to the payments thereof.” The learned counsel for the appellant insists upon the application of certain familiar rules of construction recently reiterated in Warner v. Durant, 76 N. Y. 133, Re Baer, 147 N. Y. 348, 41 N. E. 702, and Re Crane, 164 N.Y. 71, 58 N. E. 47. The intent of the testator, as gathered from the four corners of the will, is the cardinal canon of construction, and the rules invoked by the appellant, like almost all other rules, are said to be subordinate to it, and not destructive of it. Dougherty v. Thompson, 167 N. Y. 472, 60 N. E. 760; In re Crane, supra; Goebel v. Wolf, 113 N. Y. 405, 412, 21 N. E. 388, 10 Am. St. Rep. 464; In re Young, 145 N. Y. 536,

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$318 72 NEW YORK SUPPLEMENT (Sup, Ct.
and 106 New York State Reporter
538, 40 N. F. 226. It is our duty first to search diligently through.
out the will to find, if possible, in the scheme, the provisions, and the
text thereof, the intent of the testator, mindful, too, that the law
favors the vesting of estates. Dougherty v. Thompson, supra; In
re Seebeck, 140 N. Y. 241, 246, 35 N. E. 429. At the death of the
wife the executors are directed to set apart one of the shares of
the estate for each child, and in the case of the death of any child
before the wife its share is to be paid, divided, and distributed to
and among its lawful issue as and when such issue become 21 years
of age. In Patterson v. Ellis' Ex’rs, I I Wend. 260, 276, the court
said that there was no doubt that a legacy vested when it was sep.
arated from the testator's estate and invested in the name of the
legatee. Though it may be said that such severance was necessary
to the scheme which required a division at the death of the wife,
yet this is not precisely the case, inasmuch as the testator might
have provided that the shares of the children respectively should
be carved out of the corpus. Further, there is the direction to set
apart, provide, and invest for the descendants “then living,"—that
is, the class that is to take is then determined; and it is such share
that is to be paid, divided, and distributed among such descendants
equally “as and when” they respectively attain the age of 21 years.
There is nothing to indicate that the testator contemplated the death
of any such descendants during minority. The gift is not made to
such descendants as may be living at the age of 21 years, or to the
survivors or survivor of them who may attain majority. And it has
been held that such omission is indicative of intent. Goebel v.
Wolf, supra; Townshend v. Frommer, 125 N. Y. 446, 26 N. E. 805,
The testator does not make the gift if such descendants attain the
age of 21 years, or provided they attain that age, but only indicates
the period which must elapse before the payment can be demanded.
Bushnell v. Carpenter, 92 N. Y. 272. If the testator had intended
that the estate was not to vest until the period of the majorities,
it is far to seek his reason for the omission of all provisions as
to the interest or income upon the shares in question. In Du Bois
v. Ray, 35 N. Y. 162, 167, such omission was considered to be
strong evidence against an intention of the suspension of ownership
for that period of time. See, too, Manice v. Manice, 43 N. Y. 303,
366; Clancy v. O'Gara, 4 Abb. N. C. 268, 273. The original pro-
vision plainly directs a vesting of a similar estate in the same nat-
ural objects of his bounty; and the substitutionary scheme is clearly
modeled upon it, and is but written to meet the contingency of the

death of any of his children before that of his widow. No reason

suggests itself why the testator should in any way recast the scheme
so far as it affected those who remained in the same relation to
him. I am of opinion that the intent of the testator is that the gifts
to the descendants were not suspended, but vested upon the death
of the widow, and that the time of payment is but postponed. 2
Jarm. Wills (Rand. & T. Ed.) 417, note; Hoxie v. Hoxie, 7 Paige,
187, 192; Gray, Perp. p. 73, note. Gray, supra, says:
“In certain classes of legacies, to be paid when the legatee reaches twenty-
one or some other age named, the courts construe the gift as an absolute 9D9

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