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ant at the time claimed, it was not | 634 ; 3 id., 511, 522; 37 id., 59, 73; convenient for plaintiff then to 36 Barb., 88, 94. make absolute payment on ac

Judgment of General Term, afcount .of the alleged mortgage firming judgment for plaintiff, afdebt. It cannot be said that the firmed. judgment in the Nebraska suit Opinion by Miller, J. All conwas merely a decision that the cur. moneys claimed in that suit were not repayments on account of that advance. That decision embraces ADVERSE POSSESSION. the question presented as to the DEEDS. PRACTICE. loans being made, as well as the N. Y. COURT OF APPEALS. claim of defendant that they were only payments upon the alleged

Whiting, applt., v. Edmunds

et al., respts. mortgage debt.

The fact that the defendant in Decided Jan. 15, 1884. the Nebraska suit did not demand The possession of a tenant is the possession judgment against the plaintiff in of the landlord not only during the term that action for the balance due

but presumably for twenty years thereafter,

notwithstanding any claim by the tenant him does not change the issue

or his successors of a hostile title. Το which was tried, as the defendant initiate an adverse holding the tenant must had a right to set up his claim as a surrender possession to the landlord or do defense merely, as he did, and not

something equivalent thereto and bring

home to him knowledge of the adverse as a counterclaim. It being so

claim. used it cannot now be presented One C., who held a paper title to certain as a counterclaim against plaintiff's premises, executed a deed thereof to one demand in this action. Defendant

T., whose wife at the time held the title to

the premises under a former deed to T. having had his day in court in the

Held, That the deed from C. was not chamNebraska case upon

the issue

pertous ; that it was possible that T. was there presented cannot in this in possession and that he took the deed case be allowed to contest the

with the knowledge and consent of his

wife. same. 35 N. Y., 331 ; 16 Wend.,

An admission which has come into the case 583; 94 U. S., 351, 352.

without any challenge as to its admissiThe judgment in the Nebraska bility or competency cannot be rejected or case is final and conclusive be- disregarded. tween the parties not only as to This was an action of ejectment. the matters actually determined It appeared that one W., in 1823, but as to every other matter the executed a lease of the premises in parties might have litigated and question for twenty years, and in decided as incident to or essen- 1824 they were in possession of 0., tially connected with the subject as tenant under said lease. One matter of the litigation within the R. T., who had or claimed a title purview of the original action under a deed from B., employed I. either as a matter of claimi or of to buy the lease from 0.

He did defense. 85 N. Y., 421, 436 ; 79 id., so with money furnished by R. T.,

Vol. 13-No. 18a.



but I. took an assignment in his Cow., 129 ; 53 N. Y., 293; Code own name. Thereupon R. T. told of Proc., $ 86; Code Civil Proc., I. not to enter under the lease but $ 373; 1 Washb. on R. P. (3d. ed.), to let him enter under his deed, 492; 1 Cow., 575; 20 Penn St., and R. T. entered, asserting his 62 ; 97 Mass., 105. title under the deed from B., but In 1869 C. executed to G. F. T. by collusion with I., who held the a deed of the premises, and the lease for him, and without the latter gave back a mortgage there. knowledge of W.

The lease was At that time the title under afterwards found in the possession the deed to G. F. T., of 1846, was of R. T., who on several occasions in his wife. This mortgage was sought to buy in the W. title. assigned to plaintiff who in 1870 Plaintiff claimed under deeds from brought an action to foreclose it, the heirs of W. to C., executed in making the wife of G. F. T. a 1858 and 1859. The premises were party defendant. Upon a sale then in possession of the grantees under a judgment in said action in of G. F. T., who entered under a 1874 C. purchased the premises deed in 1846. Defendants' coun- and received a referee's deed. sel admitted that since 1824 Defendants claimed that the deed R. T. and his grantees have from C. was champertous. been in possession and that Held, Untenable; that upon the defendant is now in possession fact proved it was possible that under that claim of title. The G. F. T. was in possession when court refused to submit to the the deed from C. to him was given, jury the character and intent of and that he took the deed and R. T.'s entry and possession and gave back the mortgage with the nonsuited plaintiff.

knowledge and assent of his wife. H. V. Howland, for applt.

The parties to this action stipu

lated that either party could read W. F. Cogswell, for respts.

from a printed case in another acHeld, Error; that if R. T. be- tion "whatever was relevant in came the tenant of W. his posses- this action.” In that case there sion remained the possession of his was a stipulation admitting cerlandlord not only until the end of tain facts, which was read without his term, but presumably for objection. twenty years thereafter or until Held, That the admission having 1863, and that the possession of come into the case without any his grantees or assigns bore the challenge of its admissibility or same character for the same period, competency as proof of the fact in the absence of evidence suffici. asserted it cannot be rejected or ent to rebut the statutory presump- disregarded. 44 N. Y., 158; 36 tion, and so there was no adverse id., 605-606. possession at the time of the deed A tenant cannot by a disclaimer to C., and it was good and not void or by mere words denying the for champerty. 9 N. Y., 1; 5 landlord's title and asserting one

of his own work a forfeiture of his

ADMINISTRATION, tenancy or set running an adverse possession. 9 N. Y., 1. Where

N. Y. COURT OF APPEALS. the relation of landlord and tenant

In re estate of Goddard, dehas been once established the

ceased. possesion of the latter and that of his grantees and assignees is the

Decided Jan. 29, 1884. possession of the landlord and Chap. 383, Laws of 1877, did not iinpose an not hostile or adverse. 5 Cow., imperative duty on courts and surrogates 129 ; 53 N. Y., 233. This is true to appoint the Brooklyn Trust Company as

administrator in the cases mentioned, but even where the grantee has taken

merely confcrred an authority to be exercisa deed of the fee in ignorance of ed in the discretion of such courts or surrothe fact that his grantor stood in gates and the exercise of such discretion the relation of a tenant, the latter cannot be reviewed unless it appears that denving any such relation. 3

there was such a gross and arbitrary exerJohns., 499.

cise of the power as amounts to an abuse

of a legal discretion. The possession of a tenant in So far as said act of 1877 purports to confer subordination to the title of the power to issue letters to the Trust Company landlord continues not only

in the cases provided for in Chap. 124, Laws during the running of the term, Reversing s. c., 17 W. Dig., 557.

of 1882, it is repealed by the latter act. but is presumed to

to be such and to remain unchanged until

The controversy involved in this twenty years after the end of the appeal relates to the right to adterm, and notwithstanding any minister upon the estate of G. It claim by the tenant or his suc- appeared that G., a resident of cessors of a hostile title. This Kings county in this State, died presumption may be rebutted, there February 19, 1883, intestate, bnt to do so effectively and in possessing about $25,000 of per

All the adult next itiate an adverse holding the ten- sonal estate. ant must surrender the possession of kin, two residing in Kings to the landlord or do something county and one in Chicago, Illiequivalent to that, and bring nois, petitioned the surrogate for home to him knowledge of the the appointment of the Brooklyn adverse claim.

Trust Company as administrator. Judgment of General Term, af- The Public administrator of Kings firming nonsuit, reversed and county opposed this appointment new trial granted.

on the grounds that under the Opinion by Finch, J. All con

statutes he was exclusively entitled cur, except Miller, J., taking no

to the administration of such espart.

tate, and if not in law exclusively entitled to such administration, it was in the power of the surrogate in the exercise of his discretion to issue letters to him. The surrogate decided that the Public Administrator had the prior right to | imposing an imperative duty upon administer and a proper exercise the officer authorized to act there. of his discretion, if such discretion under. The exercise of the disexisted, required his appointment. cretion conferred upon the surro. An adult resident daughter, one gate by said act cannot be reviewed of the petitioners, appealed to the by an appellate tribunal unless it General Term and it reversed the appears that there was an exercise decision of the surrogate and re- of the power so gross and arbitrary mitted the proceedings to him with as to amount to an abuse of a legal directions to issue letters to the discretion. Trust Company. From this order Chapter 124 of the Laws of 1882, the Public Administrator appealed which provides that the Public to this court. Chapter 383 of the Administrator of Kings county Laws of 1877 conferred upon the shall have the prior right and auTrust Company the capacity to act thority to collect, take charge of as a natural person in the perform- and administer the estates of all ance of the duties of an executor such deceased persons as “shall or administrator, and the absolute die leaving any assets and effects and exclusive right to receive let in the county of Kings, and there ters upon the estate of a deceased shall be no widow, husband or person in all cases where they next of kin entitled to a distribuwere named in the will as execu- tive share in the estate of said intors thereof. Said act provides testate, resident in the State, entithat courts or surrogates “shall tled, competent or willing to take grant" letters of administration to out letters of administration on such company upon the applica- such estate. tion of a party interested in the

Held, That Chapter 383 of the estate in cases where there were no Laws of 1877, in so far as it purnext of kin of the deceased enti- ports to confer power to issue lettled to a distributive share in the ters of administration to the Trust estate qualified, competent or will. Company in the cases provided ing, or otherwise unable to accept for, is repugnant to the Act of 1882 such administration.

and must be deemed to have been Charles H. Otis, for applt.

repealed thereby.

Order of General Term, reversJames C. Bergen, for respt.

ing decree of surrogate, reversed, Held, That the object of the act and decree of surrogate affirmed. is to confer upon the surrogate Opinion by Ruger, Ch. J. All authority to appoint the Trust concur. Company to administer the estates coming within the provisions of the act as he should deem advisable. This act does not come within the rule that permissive language in a statute may be construed as


BENEVOLENT SOCIETIES. the money could be or was payable,

but he made a will and assumed N. Y. COURT OF APPEALS.

to dispose of the $1,000 in that Hellenberg, exr, applt., v. Dis way. The designation contained trict No 1, Independent Order of in the will was in no way brought B'nai Berith, respt.

to the notice of the lodge during

the lifetime of L. This action was Decided Feb. 5, 1884.

brought by his executor to recover Plaintiff's testator was a member of the de. the $1,000 claimed to be due.

fendant organization, which agreed to pay David Leventritt, for applt. $1,000 on his death to such person or per

Adolph L. Sanger, for respt. sons as he may have formally designated to his lodge prior to his death. He designated

Held, That a designation was the his mother, who died before he did. He condition precedent of defendant's designated no other person to his lodge but liability ; that the one in the will assumed to dispose of said sum by will, of

was not valid because defendant which disposition the lodge had no notice during his lifetime. Held, That a designa- had no notice of it. 44 Md., 429; tion was the condition precedent to defen- 29 Ohio St., 557 ; 13 Bush, 28 dant's liability and that the one in the will Minn., 447; 7 Daly, 168 ; 23 Hun, was not valid.

478. L., plaintiff's testator, was at the Sup. Council v. Priest, 46 Mich., time of his death a member of a 429; Expressman's Aid Society v. lodge under the jurisdiction of de- Fenn, 9 Mo. App., 412; Erdman fendant, which was a corporation v. Mut. Ins. Co., 44 Wis., 376; organized pursuant to Chapter 188 Roswell v. Eq. Aid Union, 13 of the Laws of 1878. When he Fed. R., 840, distinguished. became a member he agreed to pay Judgment of General Term, certain dues and assessments as affirming judgment for defendant, specified, and defendant agreed affirmed. npon the death of L. to pay $1,000 Opinion by Finch, J.

All con to his wife, if living; if dead, to his cur. children, and if there should be neither wife nor children then to

CONVERSION. "such person or persons as he

N. Y. COURT OF APPEALS. may have formally designated to his Lodge prior to his death," Hynes, respt.,v. Patterson et al., such sum to be collected by assess- exrs, applts. ments. L. prior to his death des

Decided Feb. 8, 1884. ignated his mother, describing the

Where notes made for a certain purpose are payment directed as "the


placed in the hands of a custodian to carry thousand dollars my heirs are to

out that purpose, and he with full knowledge receive" of the corporation. He allows them to be diverted from the purhad neither wife nor children. His pose intended, he becomes liable to the mamother died before he did. He

ker in damages for the conversion of them.

If it is agreed that the maker of accommonever designated to his lodge any

dation notes is to receive a certain amount body living at his death to whom

as compensation for the loan of his credit,

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