FIRST DEPARTMENT, DECEMBER TERM, 1874. Bitters had in their day a world-wide popularity, netting the inventor millions; these women once occupied the celebrated Moffatt mansion as their home, and now they eke out a scanty pittance and wretched life, while a large family, who derive every dollar they consume from the earnings of their son and brother, roll in their carriage nightly to the opera. Such contrasts in the same family are seldom exhibited within the compass of the same city, and the strangest part of the affair is, that the existence of their poor relations is unknown to the wealthy branch of the family, and that, probably, their first information on this point will be afforded through the columns of The Sunday Mercury. "The manner in which this transformation scene' in real life was brought about was substantially as follows: Dr. Moffatt, a fine-looking gentleman, of keen business habits, and a great believer in printer's ink and real estate, and devotedly attached to his mother and sister, chanced to meet at a fashionable boardinghouse two sisters—both handsome, both modest, and both smartorphans, who lived up to the full extent of a small annuity which was settled upon them. The doctor courted and married the elder of these girls, and, on his marriage, settled his mother and sister in the house near Union square afterward known as the Moffatt mansion, while he located himself, his wife, and his wife's sister in an elegant establishment in Fifth avenue; but one night he died suddenly of diphtheria, and a will was found — not such a will as he evidently intended to have left behind him, but still the only will that was found; and, taking advantage of some loophole in this document, some shrewd lawyers contrived to defeat what must have been the intention of the dead doctor, who was, as before remarked, a most exemplary son and brother, and absolutely managed to turn the deceased millionaire's own mother and sister out of doors upon the world, with not a roof to cover them. Accustomed all their lives to luxury, and unaccustomed to labor, the sudden blow fell upon these unfortunates with a crushing weight, and they have never recovered from the shock. They left New York, and for some years lived on the weekly sales of their personal effects saved from the general wreck; but then this resource failed them in time, and they returned to the metropolis. Meanwhile all trace of them had been lost. The widow of Dr. Moffatt FIRST DEPARTMENT, DECEMBER TERM, 1874. had died suddenly at Long Branch. Her sister, too, had died, and all that remained of the rich Moffatts were the little children and their guardians, none of whom had ever seen those poorer Moffats of whom we write, or were even aware of their existence. The former now dwell in Thirty-fourth street, in a sumptuous establishment, the latter in a garret in University place. And such is life." Ira Shafer, for the appellant. A. Oakey Hall, for the respondents. BARRETT, J.: The demurrer admits the publication, its falsity and malice. Taken as a whole, we think the article was calculated to hold the plaintiff up to ridicule. The question cannot be summarily disposed of, by simply saying that poverty is no crime. To arrive at a just solution, the entire article must be read. Its scope and purpose must also be looked at. Journalistic intrusion into the privacy of domestic life, is sufficiently unwarrantable, even when the truth is reported. But when a person is made the subject of a romance like that in question, admitted to be false in every particular, and to have been published maliciously, it ceases to be a question of taste, and we think that an action will lie. As an abstract generality, it is true that mere poverty ought not to expose any citizen to ridicule. But the proposition that ridicule is a non sequitur from such an imputation, is not universally true. One may be so circumstanced, and the fact of his alleged misery may be so put, as to excite ridicule and nothing else. Take, for instance, the case of any well known citizen of wealth; assume his retirement from business, so as to eliminate all questions of mercantile credit. While he is still occupying a comfortable house, and perhaps entertaining in a hospitable manner, a sensational account of his misfortune appears in a public journal, stating, as in the present case, that he "breathes," but scarcely "lives," in a "garret ;" that he manages, by constantly sewing for a tailor, to eke out a "scanty pittance" and a wretched life; that, for years, he has lived by the sale of his personal effects, saved from the FIRST DEPARTMENT, DECEMBER TERM, 1874. general wreck; and other minute details. Can it be doubted that such a "sensation," taken in its length and breadth, and under such circumstances, would tend to expose the person in question to ridicule ? Again, neither is wealth a crime. Yet a poor man may be held up to ridicule by a false and malicious account of his sudden, though perfectly honest, acquisition of fortune, coupled with an elaborate and highly colored picture of his luxurious life and splendid entertainments. It comes to this, that the question, whether or no the matter is libelous, so as to be actionable, depends upon the style, scope, spirit and motive of every such publication, taken in its entirety. The inquiry is, then, into the natural effect of the publication, not only upon the general public, but upon the neighbors and friends of the person aimed at. It follows that the demurrer should have been overruled. The second count is undoubtedly bad, but it cannot be separately considered, as the demurrer was general, and to the entire complaint. The order appealed from should therefore be reversed with costs, and the demurrer should be overruled with costs; with leave to the defendants to answer over within twenty days, upon payment of the costs of this appeal, and of the costs of overruling the demurrer below, to be adjusted. DAVIS, P. J., and DANIELS, J., concurred. Ordered accordingly. HENRY OPPENHEIMER v. STUART S. WALKER, BRIDGET MCNIFF, APPELLANT, SAMUEL COOPER, RESPONDENT, AND OTHERS. Surplus moneys-distribution of -junior mortgagees — rights of. Sub W., the owner of three lots, executed a mortgage thereon to the plaintiff. sequently, and on the 11th day of February, 1873, he mortgaged two of the said lots to one Cooper. On the 7th day of April, 1873, one McNiff, who had been employed by the mortgagor to erect buildings on the three lots, filed a FIRST DEPARTMENT, DECEMBER TERM, 1874. mechanic's lien against them. Subsequently the three lots and houses were sold together, upon the foreclosure of the first mortgage. Upon an application for the distribution of the surplus moneys, arising upon the sale, the referee found that each of the lots was of equal value, and that each of them contributed an equal amount to the net sum produced by the sale. Held (1), that Cooper was entitled, as between the plaintiff and himself, to insist that the third house, not covered by his mortgage, should be first sold to satisfy the plaintiff's demand; (2), that Cooper had already acquired this right when the lien of McNiff was filed, and that the same was not impaired thereby; (3), that the fact that a separate sale was not actually had, was unimportant, as, from the facts found by the referee, the rule could be applied by the court with as much certainty as if there had been a separate sale of each lot; (4), that the surplus moneys should be regarded as arising from the sale of the two houses covered by Cooper's mortgage, and that he was entitled to have his mortgage paid out of such surplus in preference to McNiff. The costs and expenses of the proceedings on an application for the distribution of surplus moneys, are properly chargeable to the fund. APPEAL from an order of Special Term, confirming the report of a referee as to the distribution of certain surplus moneys. Wm. C. Trull, for the appellant, McNiff. Abner C. Thomas, for the respondent, Cooper. LAWRENCE, J.: This action was brought to foreclose a mortgage upon three lots of land, situate on the southerly side of Seventy-fourth street, between the Second and First avenues, in the city of New York. Judgment having been rendered for the plaintiff, the mortgaged property was sold. After the payment of taxes and assessments, which were liens upon the mortgaged premises at the time of the sale, and the costs and expenses in the action, there remained, as the proceeds of the sale, the sum of $12,638.48; and after deducting therefrom the sum of $6,524.93, the amount due the plaintiff for principal and interest, there remained a surplus of $6,113.55. As to the proper disposition of which surplus, this controversy has arisen. It appears from the report of the referee, that, on the 11th of February, 1873, the defendants, Stuart S. Walker and Andrew F. Wilson, and their respective wives, executed to the respondent, Samuel Cooper, a mortgage upon two of the three lots, covered by the plaintiff's mortgage, to secure the payment of a bond for FIRST DEPARTMENT, DECEMBER TERM, 1874. $5,000, with interest, and that, at the time of the referee's report, there was due upon the said bond and mortgage the sum of $5,621.12, including the sum of $100, paid by said Cooper for premiums in procuring insurance upon the buildings erected on said premises, the mortgagors having made default upon their covenants to effect such insurance. The mortgage executed to Cooper also covered other property, a portion of which had been sold under foreclosure of prior mortgages, producing only a surplus, after satisfying said prior mortgage, of $18.85. The appellant, Bridget McNiff, is the administratrix of James McNiff. James McNiff had a contract with Walker and Wilson, the mortgagors, to do certain work in and about the erection of three houses upon the three lots covered by the plaintiff's mortgage; and, on the 7th of April, 1873, he filed a mechanic's lien upon the houses for the sum of $1,950, for work done by him. under his contract, and unpaid by the owners, Walker and Wilson. The referee reported, that, out of the surplus remaining after paying the taxes and assessments, and the costs and expenses, and the principal and interest due to the plaintiff, Cooper was entitled to be paid the full amount due to him, $5,621.12, and that the balance remaining after such payment, and after payment of the costs, expenses and allowances in this proceeding, should be paid to the appellant as the administratrix of James McNiff. I am of opinion that the referee correctly held that Cooper was entitled to have the full amount, due to him, satisfied out of the surplus, before making any payments to the appellant. It is well settled that, where a creditor has a lien upon two funds for the security of his debt, and another party has an interest in only one of the funds, without any right to resort to the other, equity will compel the creditor to satisfy his debt, if possible, out of the fund in which he alone has an interest. * And the rule requiring parcels of land, incumbered by a judgment or mortgage to be subjected in the several order of their alienation by the debtor, is a branch of this rule. † It follows *Ingalls v. Morgan, 10 N. Y., 179; James v. Hubbard, 1 Paige, 235; Cheesbrough v. Millard, 1 John. Ch., 409; Evertson v. Booth, 19 Johns., 486. + Ingalls v. Morgan, 10 N. Y., 186, per DENIO, J., citing many cases. |