A lease giving the lessor a lien, as security for any rent due and unpaid, upon all the goods and chattels which may be upon the demised premises belonging to the lessee, or to any one holding or claiming the premises under him as assignee or otherwise, and authorizing the lessor to take and sell the goods in the same manner as upon default in a chattel mortgage, is equivalent to a chattel mortgage, although no title passes to the lessor, but only an equitable lien or mortgage is created; and such lease must be filed according to the provisions of the statute, otherwise it will be void as to cred itors, &c. So Held, as against an assignee for benefit of creditors who took possession of the goods before the filing of the lease. The lessor not having acquired an actual lien by taking possession prior to the assigneee, his equities are not superior to the other creditors represented by the latter. Appeal from judgment entered upon decision of Special Term, dismissing plaintiff's complaint. Action brought to enforce the provisions of a lease executed between plaintiff, as lessor, and defendant Van Dake, as lessee, by which it was agreed that the lessor should have a lien, as security for all the rent, &c., due from the lessee, upon all the goods and chattels which are or may be on demised premises belonging to the lessee, or to any one holding or claiming the same under him as assignee or otherwise, and such lien may be enforced on non-payment of any of said rent, &c., by the taking of such property and a sale thereof in the same manner as in the case of a chattel mortgage upon default, &c. The premises consisted of a store, which Van Dake occupied until January 5, 1881, when he made a general assignment to Ellis for the benefit of his creditors; there being rent due and unpaid at that time. The asVol. 20.-No. 3b. signee at once took possession of the store and contents by virtue of the assignment. The lease was filed the next day. J. A. Stull, for applt. John. M. Davy, for respts. If Held, That although no title to the goods passed by the provisions of the lease, and it was not therefore a chattel mortgage properly so called, but only an equitable mortgage or an equitable lien was thereby created, yet it was equivalent to a chattel mortgage, and not having been filed pursuant to the statute it was void as against the assignee. 65 N. Y., 459. plaintiff has but an equitable lien, and no actual lien, then his interest in the property is not so great as it would be if he were a mortgagee having the legal title. If a mortgage conveying title is void as to creditors, upon what principle can it be claimed that an instrument transferring a less interest would not be void? Ordinarily the greater includes the less; and an instrument conveying the title includes one which conveys but an equity. Before acquiring an actual lien by taking possession of the property it passed into the hands of the assignee. It is his duty to prosecute and defend for and on behalf of the creditors, and to protect their interest in the assigned property. In the absence of any actual lien upon the property, the equities of the creditors are just as great as those of plaintiff, and the court has no power to prefer one creditor over another. Judgment affirmed. to whom he put hypothetical questions based upon assumed facts as to the services rendered, and called for their opinions as to their value, which they accordingly gave. Defendant, on cross-examination, put questions to them based upon assumed facts which varied in some particulars from those embraced Henry D. Tucker, respt., v. Al- in plaintiff's hypothetical quesfred Ely, applt. Decided Oct., 1884. tions, and the witnesses gave their opinions accordingly. The court held that defendant, by taking A party by cross-examining his opponent's the valuation of plaintiff's wit witnesses in reference to the same matter embraced in the direct-examination does not make them his own but is entitled to call witnesses to contradict them. So held, nesses in answer to his hypothetical questions on cross-examination made them his own; that conse where defendant put questions to plaintiff's sequently he had four witnesses witnesses based upon assumed facts which varied in some particulars from those embraced in plaintiff's hypothetical questions, and they gave their opinions as to the value of the services upon such assumed facts. Where, in a suit originally commenced in justice's court, plaintiff gave evidence as to value, defendant was held entitled to give evidence in rebuttal though the question of value was not put in issue by the answer. A promise by an attorney to repay a sum of money which his client had been compelled to pay by reason of his mistake or negligence is founded upon a good consideration, and is a proper subject of counterclaim in a suit for services. Appeal from judgment entered upon verdict and from order denying motion for new trial made upon the minutes. The action was originally brought in a justice's court to recover for professional services rendered as an attorney at law. The answer denied the retainer or employment, and alleged that whatever services were performed were rendered gratuitously. On the trial in the County Court plaintiff called four attorneys as witnesses, on that subject, and that he could not be allowed to contradict them. H. D. Tucker, in person, for respt. B. F. Maxson, for applt. Held, Error. Where the crossexamination is in reference to new matter wholly disconnected from that embraced in the direct-examination, as to such new matter the cross-examiner makes the witnesses his own. 15 Wend., 419. But here the cross-examination was in reference to the same matter, viz., the value of the services. Defendant had the right to test the correctness of the witnesses' conclusions, and if possible to vary or reduce their estimate. The court below held, on motion for new trial, that there was no issue as to the value of the services, and no evidence in that behalf was necessary on the part of plaintiff or admissible on the part of defendant. Held, Error; that as plaintiff did not choose to rest his claim as to the value of his services upon the ground that it was admitted by not denying, but gave evidence upon the question, defendant ought to have been permitted to re-but the same. The answer alleged that defendant employed plaintiff as his attorney in a certain action in which a demurrer was interposed for a misjoinder of parties, and that by reason thereof he was compelled to pay $50; that plaintiff admitted that it was owing to his misjudgment and wrong advice in the misjoinder of the parties, and that he promised to repay the $50 so paid by defendant which he pleads as a counterclaim. The court below held that there was no consideration for this promise and struck out the evidence thereof. Held, Error. If plaintiff was guilty of malpractice, and the same was settled between the parties by his agreeing to pay the sum of $50, such agreement was supported by a good consideration. Judgment and order reversed and new trial ordered. Opinion by Haight, J.; Smith, P. J., Barker and Bradley, JJ., concur. PRACTICE. NEW TRIAL. N.Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT. David Soule et al., applts., v. Samuel Oosterhoudt et al., respts. Decided Oct., 1884. When a plaintiff is taken by surprise by the production of evidence proving a defense pleaded, the truth or falsity of which he might have ascertained by communicating with a third person in a foreign state, he should withdraw a juror and thus arrest the trial, and not proceed and take the chances of success, and then move for a new trial on the ground of surprise and newly discovered evidence. In an action by two partners upon a claim formerly owned by three, defendants pleaded payment. and proved a release and settlement with the former partner without any knowledge of the previous dissolution of the firm, or that he had assigned his interest to plaintiffs. Held, That as plaintiffs might by communicating with such former partner, have ascertained the truth of the matter, they were guilty of laches in going to trial, and are not entitled to a new trial on the ground of surprise and newly discovered evidence; especially when defendants' affidavits controvert the facts stated in plaintiffs' affidavits. Appeal from order of Special Term, denying motion for new trial upon the ground of surprise and newly discovered evidence. Action upon a claim formerly owned by the firm of John Soule & Co., of which plaintiffs were members. The firm was dissolved, and John assigned his interest in the claim to plaintiffs. Defense, payment. Defendants put in evidence a release executed by John Soule & Co., and by John Soule, and proved that they conveyed property to John in settlement of the claim, without any knowledge that the firm had been dissolved and that John had assigned his interest in the claim. The court directed a verdict for defendants. Upon the motion for new trial plaintiffs' affidavits stated that they were surprised at the trial by the production of the release, as they had never seen or heard of its existence; that since the trial they have been informed by John Soule, who resides in Michigan, that at the time he settled with defendants he told Oosterhoudt that he had assigned his interest in the claim. John Soule also made affidavit that such was the case. But the affidavit of Oosterhoudt showed that one of the plaintiffs admitted that he knew of the release before the trial; and the affidavit of John Soule was controverted by Oosterhoudt's and his attorney's affidavit. Cary, Jewell & Rumsay, for applt. Bolles & Moulton, for respts. Held, That, as the answer alleged payment, they must have known that no payment was made to them, but must have been made. to the former partner, and they were guilty of laches in not ascertaining the fact from him before trial. If they were in fact surprised by the production of the release, they should have moved to withdraw a juror and thus arrest the trial, and not to have proceeded and taken the chances of success; unless good reasons appear for taking the latter course. 48 How., 542; 48 Barb., 197. The business having been transacted in the office of defendants' attorney, other matters connected with the business of the firm were then settled, a conveyance was made in settlement of this claim, and it seems incredible that this should be done after John Soule had informed them of the assignment of all his interest in the copartnership and in this claim to plaintiffs. Order affirmed. Opinion by Haight, J.; Smith, P. J., and Bradley, J., concur; Barker, J., not sitting. TENANTS IN COMMON. N.Y. SUPREME COURT. GENERAL Lucy Wainman, respt., v. Isaac Hampton et al., applts. Decided Oct., 1884. When one of several tenants in common is in actual possession his possession will, in the absence of any act of ouster on his part, inure to the benefit of all, and any one of them can maintain an action for partition. Consequently, it is not necessary to allege that the plaintiff was or had ever been in possession. In an action of partition under the Revised Statutes the mere putting in of an answer claiming title to the whole premises did not prevent the court from ascertaining whether any such title existed, or from determining whether there was a subsisting adverse possession. So held of a claim that plaintiff contracted to convey his interest to defendant. Appeal from an interlocutory decree in partition. Plaintiff and defendants became tenants in common of the premises by descent. One of the defendants claimed to have purchased the interest of plaintiff therein, and to be the owner thereof, and that the finding of the court to the contrary was against the weight of evidence. Motion to dismiss the complaint was made upon the ground that it Decided Oct., 1884. contained no averment that plain- | counts of William C. Tallmage, tiff was or ever had been in pos- executor. session of the premises; and that the court could not determine in this action whether a binding contract to sell had been consummated. A. J. Abbott, for applts. Held, That the court had power to determine whether a binding contract of sale had been made, and that the finding was sustained by the evidence. The mere putting in of an answer does not oust the court of jurisdiction to ascertain whether the claim of title is well founded, or whether the possession is held adversely. 46 N. Y., 182. Held also, That where the complaint alleges that the premises descended to plaintiff and the defendants as the heirs of a certain person it sufficiently shows that plaintiff was in possession. Tenants in common are constructively in possession, and when one of several is in actual possession his possession will, in the absence of any act of ouster on his part, inure to the benefit of all, and any one of them can maintain a suit for partition. 14 N. Y., 235; 46 Id., Where a will bequeathed all of testator's personal property, including money in bank, to his two daughters absolutely, but by a subsequent clause provided that, in case of the death of both without leaving any children surviving, the property should go to testator's sister; but in case of the death of either daughter without children that the survivor should have and hold and be the owner of said property. Held, That the true construction of the will was that the testator intended to give his daughters an absolute interest in case they or either of them survived him, and that event having happened no interest, present or contingent, vested in the testator's sister; that the clause in question should not be construed to limit the absolute bequest to a life interest. Appeal from a final decree of the surrogate made upon the settlement of the accounts of the executor. Charles Tibbitts died leaving a will, which was admitted to probate and letters testamentary issued. He left him surviving two daughters, Elsie and Jane, both of whom are now living and of age. Jane M. Tallmage was testator's sister, but died leaving her husband and two daughters, Sarah M. Tallmage and Gertrude T. Kiefer, her surviving. After bequeathing to each of his daughters specified shares of bank stock, all the money in bank, and all his personal prop. erty, the testator, by the fifth clause of his will provided: "In case of the decease of both of my said daughters, Elsie and Jane, and without any children of theirs then surviving, then and in such case I give and bequeath their said In re Settlement of the Ac- shares of said property aforesaid 182. Judgment affirmed. Opinion by Haight, J.; Smith, P. J., Barker and Bradley, JJ., concur. WILLS. N. Y. SUPREME COURT. GENERAL |