no trust, cannot maintain an action for the The premises were sold under execution on a This action was brought to obtain a construction of the will of S., and to have certain premises declared inalienable during the lifetime of the plaintiff W. and that she be allowed to redeem the same from a sale under an execution. It appeared that under the will of S. W. became entitled to a fee in a house and lot determinable which upon her death without issue, in event said premises were to go to the persons designated. Annexed to this devise was a clause which directs that the house and lot shall not be in any manner conveyed during the life of W. Auburn Birdsall, for applts. Alex Cumming. for respt. Held, That whether the clause in the will restraining alienation is repugnant to the estate devised, and so void, is a question of law and involves no element of equitable jurisdiction. A devisee who claims a mere legal estate in real property of a testator, where there is no trust, cannot maintain an action for the construction of the devise, but must assert his title by ejectment or other legal action, or if in possession must await an attack upon it and set up the devise in answer to a hostile claim. 11 Paige, 505. It appeared that on July 22, 1874, one M. obtained a judgment against W. On April 5, 1875, an execution was issued thereon, and on January 29, 1876, the premises in suit were sold thereunder. On Nov. 8, 1875, defendant R. recovered a judgment against W.and on February 24, 1877, redeemed said premises under his judgment by paying M. the amount of his bid and interest. No redemption being made by any other creditor the sheriff executed and delivered to R. a deed of said premises. W. in not availing herself of the right to redeem acted on the advice of counsel that her interest as devisee was not subject to sale on execution. Held, That W. cannot maintain this action as one to redeem from the execution sale; that W. having taken the risk of the sale the court cannot relieve her from the consequences: that R.'s title as redeeming creditor having been acquired under the law a court of equity cannot divest him of it. This decision does not impair any remedy W. may have by application to the court to set aside the sale for irregularity or other reason. Judgment of General Term, affirming judgment dismissing complaint, affirmed. Opinion by Andrews J. concur. LEASE. N. Y. COURT OF APPEALS. All fit for the purposes for which they were hired. There was evidence to warrant this assertion and to show that the fixtures and furniture of the society were injured by the water and plaster which it brought down, and that the tenant suffered thereby in other respects. This action was brought upon the guaranty, to recover rent accruing by the terms of the lease after the tenant vacated the premises. De Vann et al., exrs,, applts., v. Rouse et al., respts. Decided Jan. 15, 1884. A clause in a lease providing that in case the lessee shall abandon the premises at any time the whole rent shall become due does not show an intention on the part of the fendants set up by way of counter lessee to waive his right under the statute to abandon in case the premises become untenantable without his fault, and does not bind him to pay rent accruing after such an abandonment. An objection that a claim set up in the answer was not the proper subject of a count claim the damages the tenant had sustained. It was assumed by both parties that there was evidence from which the jury might find that defendants were assignees of the tenant in respect to the erclaim cannot be raised for the first time damages, but plaintiffs contended on appeal. On April 22, 1873, plaintiffs' testator leased to a society three rooms, to be occupied by it "as a place for religious worship and purposes connected therewith, for the term of three years from May 1, 1873, at the rent of $400 for the first year, and $500 for each of the next two years, in equal monthly payments, subject, however, to the provision that, "in case the tenant shall abandon the premises at any time, the rent then due or to become due on this lease shall be in reality due and collectible." Defendants guaranteed the payment of the rent as it became due. The tenants paid the rent up to Nov. 1, 1874, but soon after they abandoned the premises because by a flow of water from other parts of the building owned by the lessor, and under his control, they became untenantable and not that the assignment was not made. until after the commencement of the action and so not available to defendants. The court charged that if without fault or negligence on the part of the tenant the rooms were untenantable and unfit for occupancy they were justified in leaving, and would not be bound thereafter to pay rent." M. M. Waters, for applts. William G. Tracy, for respts. Held, No error; that the stipulation in the lease, which makes the whole rent at once due and collectible in case the tenant abandons the premises, does not show an intention on the part of the lessee to waive the advantage given by the written law. Chap. 345, Laws of 1860. The statute works discharge from liability and it can be obviated only by a clear and express agreement. The written assignment of the claim for damages was lost, but its execution was not controverted, and the circumstances attending it, as well as the testimony of witnesses, permit no other inference than that its delivery was before the suit was actually brought. Held, That this was sufficient to defeat a recovery for rent otherwise due, and, if the facts found established injury for which the lessor was responsible, furnished cause for an affirmative judgment against the landlord. Also held, That plaintiffs might have been held liable for a breach of covenant for quiet enjoyment, which the law implies in such a case, 90 N. Y., 293, or for failing to keep his promise after notice to remove the cause of damage. INSOLVENT INSURANCE COMPANIES. DISTRIBUTION. N. Y. COURT OF APPEALS. Reese, respt., v. Boese, applt. Decided Nov. 20, 1883. On an application by rival receivers of a foreign corporation to share in the distribution of an insurance deposit fund no finding was made as to their conflicting claims, but the report and judgments were adverse to appellant's claim to represent the company and to the right of the company to share in the distribution. Held, That appellant to succeed must show affirmatively from facts appearing in the record that the conclusions of the court below were erro neous. It appeared that the fund fell short of satisfying claims having a preference over those of appellant, and there was no finding that his company was the owner or holder of the policies in question or entitled to distribusion therein. Held, that there was a failure to show that the company was entitled to share in the distribution of the fund. This action was brought by a policy holder of the Nat. L. Ins. Co. of N. Y., to procure the distribution of the fund deposited by It was assumed that if the evidence justified a finding that injury was caused to the tenant by the lessor's acts or negligence, and the claim for damages so occurring before suit, the defendants might have the benefit of it. No objec-it with the superintendent of the tion was made that liability so in curred was not the proper subject of a counterclaim. insurance department upon its organization for the security of its policy holders. The Am. Nat. L. & T. Co. of Connecticut claims a share in such fund by virtue of certain policies, issued by the Nat. L. Ins. Co. to various persons, which it now holds. The Connecticut Co. appears by R. & B., rival receivers, each claiming to be entitled to receive such distributive share as may be found to belong to it. R. was appointed in September, 1878, in a suit instituted by the Connecticut Co. in the Superior Court of that state to ence over those of the appellant. There is no finding of fact that the Connecticut Co. was the owner or holder of the policies in question, or entitled to distribution therein. Held, That appellant has failed to establish a right in the Connecticut Co. to share in the distribution of the fund in question. wind up and dissolve the Co. and distribute its assets among its creditors. B. was appointed in December, 1878, by the Supreme Court of this state in supplementary proceedings instituted upon a judgment recovered against the Connecticut Co. by a resident of this State. No finding was made by the referee with respect to the conflicting claims of the receivers. The referee's report and the judg-firming judgment of Special Term ment of the Special and General against defendant, affirmed. Terms were adverse to the claim of Opinion by Ruger, Ch. J. All B. to represent the Co. and to the right of the Co. to share in the distribution of the fund. Geo. N. Sanders, for applt. Wm. H. Ingersoll and Raphael J. Moses, Jr., for respt. Held, That the appellant to succeed must show affirmatively from facts appearing in the record that the conclusions reached by the court below as to his claim were erroneous. 21 N. Y., 547; 22 id. 323; 26 id., 82. The Special Term held that R. alone was entitled to represent the Connecticut Co. and receive the interest in the fund which might be awarded to it. The evidence in the case is not brought before the court by the record, and it does. not affirmatively appear that no evidence was given which would support the legal conclusions made by the court below. Held, That this court must presume in support of the judgment that such evidence was in fact given. It appeared that the funds to be distributed fall far short of satisfying the claims having a prefer Judgment of General Term, af concur. N. Y. CITY. REMOVAL. Decided Jan. 15, 1884. A letter written by the head of a department to the head of a bureau proposing to remove him for dereliction of duty, stating the facts out of which such a cause is alleged to have arisen, and which, if true, are sufficient to authorize his removal, and designating a time and place for explanation, is sufficient to answer the requirements of 28 of the Charter of 1873. It is not necessary that the cause for removal should be established by proof taken before the superior officer; it is sufficient that cause is assigned and an opportunity for explanation afforded, and after that the question of removal rests in the discretion of the superior officer. Affirming S. C., 13 W. Dig., 538. K., the relator, was removed by the Commissioner of Public Works, in the City of New York, from the office of Superintendent of Repairs and Supplies in the Department of Public Works. The record shows that a communi cation was served on K., April 13, 1881, signed by the commissioner, which stated the charges against him and the facts out of which they arose, and notified him that he would be allowed an opportunity at the commissioner's office, on the 14th, at 12 o'clock, to make an explanation as to the matters specified, and unless the explanation was satisfactory he would be removed from his office. If the facts alleged were true, they showed a failure of K. to perform his duty, and such neglect as would have authorized his removal if no satisfactory explanation was made. K. appeared at the time and place named in the notice in person and by counsel, and submitted a statement or explanation in writing, in which, after stating that he would be ready at any time and place to controvert or explain the charges made if legal evidence was produced to sustain the same and an opportunity be given to explain or disprove them, he took issue on some of the allegations, explained others, and then claimed that the charges should be reduced to writing and specifically preferred and he be allowed to answer and produce evidence to controvert them, and that he be allowed counsel. The commissioner signified his willingness to receive any further statement or explanation at that time, saying that the statement made was entirely unsatisfactory, and he refused to give K. any further opportunity to answer the charges. On the next day the commissioner notified K. in writing of his removal from office. Vol. 18.-No. 14a. DeB. Wilmot, for applt. D. J. Dean, for respt. Held, That the charges as made were sufficient to answer the purpose intended and were within the requirements of the statute under which the proceeding was had. It was not necessary that the proceedings should be conducted with the same degree of exactness as a trial for a criminal offence in an ordinary tribunal of justice. Laws 1873, chap. 335, §28; 72 N. Y., 445. It was not necessary that the cause for removal should be established by proof taken before the commissioner; it is enough that he assigns a sufficient cause for the removal and furnishes an opportunity to the accused for explanation of the same, and the matter of removal is then left in the discretion of the commissioner. 73 N. Y., 440. In cases where the Legislature intended that the removal should not be made without cause proven, provision is made. for the preferring of charges and an examination of the same. Laws 1873, chap. 335. §§ 41, 77. People ex rel. Sims v. Bd. Fire Comrs., 73 N. Y., 440; People ex rel. Munday v. Bd. Fire Comrs., 72 N. Y., 445; People ex rel. Campbell v. Campbell, 82 N. Y., 247; People ex rel. Nichols v. Mayor, 79 N. Y., 588, distinguished. Order of General Term, denying an application for a reversal of the order removing relator, affirmed. Opinion by Miller, J. All concur. |