Page images
PDF
EPUB

Peters agt. Porter et al.

cominenced in the form prescribed by the Code. These facts, under the present Code, disposed of the motion.

The order must, therefore, be affirmed, with ten dollars costs and the disbursements of the appeal.

BRADY, J., concurs.

SUPREME COURT.

Thomas M. PETERS, as executor, &c., of SARAH A. RICHMOND,

deceased, agt. EDGAR PORTER et al.

Will construction of Extrinsic proof to explain ambiguity.

The testatrix devised two lots and a gore “on the southerly side of Forty

ninth street, near Eighth avenue.” Extrinsic evidence upon the trial of the action for construction of the will showed that testatrix owned no property on Forty-ninth street, but did own property on One Hundred and Forty-ninth street answering fully, in other respects, the terms of the devise. Extrinsic proof showed further that persons living above One Hundredth street drop the One Hundred and designate the

lot by the remaining figures : Held, that the devisee under the will takes the two lots in question. It is entirely proper to resort to extrinsic proof to explain a latent ambi

guity of this nature as to the subject of the devise, and to make clear the intention of the testatrix.

Special Term, December, 1880.

Samuel Riker, for plaintiff.

E. R. De Grose, for defendant.

William M. Purdy, for other defendants.

VAN VORST, J. - By the second clause of her will the testatrix, Sarah A. Richmond, devised “all and singular my two lots of land (or one lot and a gore, as it is sometimes called) situate on the southerly side of Forty-ninth street, near Eighth avenue, in the city of New York,” to the defendant Edgar Porter on his attaining the age of twenty-five years.

Peters agt. Porter et al.

From the extrinsic evidence which I allowed to be introduced it appears that the testatrix owned no property on Fortyninth street at the time of the execution of her will, or at the time of her death.

It also appears from like evidence that the testatrix, at the date of her will and at the time of her death, owned lands on One Hundred and Forty-ninth street, lying within one hundred feet of Eighth avenue; that in the deed to her such lands are described as two lots, and that the same premises are shown to consist of a lot and a gore. It also appears that persons living above One Hundredth street, in the city of New York, in speaking of property in streets above One Hundredth street, drop the One Hundred and designate the lot by the remaining figures. As an illustration, in speaking of lots on One Hundred and Forty-ninth street, they would designate them as on Forty-ninth street.

The testatrix, owning no lands on Forty-ninth, beyond doubt intended to devise to the defendant Edgar Porter her two lots on One Hundred and Forty-ninth street, which, in other respects, fully answer the terms of the devise, and it must be held that this defendant, under the will, takes the two lots in question.

It is entirely proper to resort to extrinsic proof to explain a latent ambiguity of this nature as to the subject of the devise, and to make clear the intention of the testatrix. The following cases, and others which might be named, establish the propriety of receiving such evidence under the facts and circumstances of this case : Doe agt. Roe (1 Wend., 548); Mann agt. Mann (1 John. Chy., 231); Zole agt. Hardy (6 Cow., 341); Lefevre agt. Lefevre (59 N. Y., 443); Pritchard agt. Hicks (273); Lessee of Allen agt. Lyons (2 Wash. C. C., 475). There must be judgment adjudging a construction of the devise in accordance with the above conclusion, and that the defendant Edgar Porter takes, under the devise, the two lots on One Hundred and Forty-ninth street.

Wachtel agt. Noah Widows and Orphans' Benevolent Society.

COURT OF APPEALS.

Rosa WACHTEL, administratrix, &c., respondent, agt. The

Noah WIDOWS AND ORPHANS' BENEVOLENT SOCIETY, appellants.

Benevolent society Benefits Expulsion of member.

An association whose members become entitled to privileges or rights of

property therein, cannot exercise its power of expulsion without notice to the person charged, or without giving him an opportunity of being heard. The service of notice, in the absence of any agreement to the contrary or any provision in the charter or by-laws controlling the same, must be made personally.

Decided February, 1881.

APPEAL from an order of the general term of the court of common pleas, affirming a judgment entered upon the verdict of a jury in favor of the plaintiff for $560, with interest and costs; the $500 being a benefit or gratuity which the defendants agreed to pay upon the decease of a member in good standing upon their books, and the sixty dollars being a sum which they agreed to pay in addition thereto as funeral expenses, both sums being payable to the legal representatives of the deceased. The by-laws of the association were changed during the absence of the deceased from the city, and under these amendments the deceased, shortly before his decease, was expelled. No notice of the meetings at which the by-laws were amended or the deceased expelled were given, although an effort to make the service was made. The sufficiency of the efforts was, however, disputed. The defendants appealed to the court of appeals.

Abram J. Dittenhoeffer, for appellant.

F. Kurzman, for respondent.

Wachtel agt. Noah Widows and Orphans' Benevolent Society.

DANFORTH, J. - It is well settled that an association whose members become entitled to privileges or rights of property therein, cannot exercise its power of expulsion without notice to the person charged, or without giving him an opportunity to be heard (Ang. & Ames on Corp., sec. 420; Bartlett agt. Med. Soc., 72 N. Y., 187; Com. agt. Penn. Ben. Ins., 2 Surg. & R., 141 ; Innes agt. Wylie, 1 C. & K., 257). This general rule of law is recognized by the defendant's by-law as applicable to one who, from any cause, should fail to pay his monthly contribution. It is in these words: “The financial secretary shall give to each member who is six months in arrears a written notice, calling his attention to the fact that he shall be stricken from the roll in case he does not pay

his dues in thirty days.” It is admitted that the deceased was in arrears, but it is established as a fact that the notice provided for in such a case was not given to him. It is said, however, by the learned counsel for the appellant that this omission was caused by the failure of the deceased to give notice to the association of his change of residence. It does not appear that he was under any obligation to

At the time he became a member of the society he notified it that his then place of residence was 41 First street, in the city of New York, but he subsequently removed to East Eighteenth street. There is nothing to show that the object of the information as to residence was to enable the defendant to serve its notices at that place, or that the deceased agreed that they might be left at his house. There are many other reasons why it would be well for such an association to know the residence of its members; but however that may be, the defendant, by another by-law, defined the penalty for neglect in giving notice of a change of residence. It declares that for such omission the member in default shall incnr a fine of twenty-five cents. It would lead to an unjust result if there should be added to it a forfeiture of the whole benefit to which his representatives are, in case of his death, entitled. Such consequence is not declared and

Vol. LX

do so.

54

Grocers' Bank agt. Murphy.

cannot be implied by any legal construction. In the absence of any agreement by the members, or any provision in the charter or by-laws, for a different mode of service, it should be made personally, as required at common law, when the object is to deprive a party of his rights or property, or if that can be dispensed with, then in such other mode as will be most likely to effect its object. There then was no service, and the court has found that its omission is not excused. This conclusion is well warranted by the facts found, and the judgment should be affirmed.

All concur.

N. Y. COMMON PLEAS.

THE GROCERS' Bank, appellant, agt. RICHARD G. MURPHY,

respondent.

Nero York Stock Exchange

- a seat therein is property and may be applied to satisfy a judgment against its owner.

A seat in the New York Stock Exchange is property that may be applied

toward satisfaction of a judgment against its owner. Per BEACH, J. (VAN BRUNT, J., dissenting.)

General Term, March, 1881.

The plaintiff recovered a judgment against the defendant on the 18th February, 1880, and execution was immediately issued to the sheriff of this county, where the defendant resides. Subsequently an order was granted, upon the usual affidavit, requiring the defendant to appear before one of the judges of this court to make discovery on oath concerning his property to be applied toward satisfaction of the judgment. This proceeding was taken under subdivision two of section 292 of the Code of Procedure. It appeared that the defendant owned a seat in the New York Stock Exchange. The

« PreviousContinue »