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Appeal from supreme court, appellate division, first department.

Action by Stephen A. West against Alexander S. Bacon. From an order and judgment of the appellate division (13 App. Div. 271; 77 St. Rep. 206; 43 Supp. 206) modifying and affirming a judgment in favor of defendant, plaintiff appeals. Modified and affirmed.

Argued before PARKER Ch. J., GRAY, O'BRIEN, HAIGHT, LANDON, CULLEN and WERNER, JJ.

This action was brought to compel the defendant, as trustee of the plaintiff, to convey to the latter or his nominee the premises described in the complaint. Prior to November 8, 1889, the plaintiff's wife was the owner of said premises. On that day she transferred the same to one J. Adriance Bush. This conveyance she subsequently sought to annul in an action wherein she claimed that it was made in reliance upon certain false and fraudulent representations and promises made by her husband during a temporary reconciliation between them, and after the discontinuance of a suit for a separation brought by her against him. The plaintiff in this action was allowed to intervene in the action to annul said conveyance, and was given judgment therein, declaring that Bush was a mere naked trustee, holding the premises free and clear of all the “dower rights, liens, or interests whatsoever" of the said wife, and further providing that said defendant "J. Adriance Bush holds said property for the benefit of

Stephen A. West, free and clear of any and all dower rights or other liens or interests whatsoever of said Kate B. West," and directing that said trustee should make, execute, and deliver to said Stephen A. West, or to any person whom he might designate, a good and sufficient deed, etc. On the 29th day of December, 1892, said Bush, as such trustee, executed and delivered to the defendant a deed of said premises, which recites the provisions

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of said judgment, and that it is made upon the request of the plaintiff herein. On the 30th day of December, 1892, the defendant executed and delivered to the plaintiff the following declaration of trust: “This declaration of trust made this 30th day of December, 1892, by Alexander S. Bacon, of Brooklyn, N. Y., in favor of Stephen A. West, of New York City, N. Y., witnesseth: Whereas, I, said Alexander S. Bacon, have this day received from J. Adriance Bush, Esq., a deed to premises known as 'No. 61 East One Hundred Twenty-Eighth Street, New York City,' under and pursuant to the terms of a certain judgment of the New York supreme court, a copy of which is hereto annexed and made a part hereof, I do hereby declare that I hold said property for the purposes expressed in said judgment, and in no other way, to wit, to hold the same for the benefit of said Stephen A. West, free and clear of any and all dower rights or other lien or interest whatsoever of Kate B. West, wife of said Stephen A. West, and to convey the same to such person as said Stephen A. West may in writing direct, and to pay over the proceeds of such sale to said Stephen A. West.” On the 3d day of May, 1895, plaintiff served upon the defendant a written demand for the transfer of said premises to one Charles D. Ridgway, who is the plaintiff's attorney in the present action. The defendant refused to comply with this demand upon the grounds, as stated in his answer, that he claims a lien upon said lands as the proceeds of the judgment in the action brought by plaintiff's wife against said Bush as trustee, and in which the plaintiff herein was permitted to intervene as a defendant, and also a further lien for his general services as attorney and fees as trustee.

The supreme court, at special term, without deciding whether defendant had a lien upon the lands described in the complaint, held that he was entitled to recover as trustee, for his services, disbursements, and fees, the sum of $294.02, and also "the sum of $500 for his services rendered in other actions and proceedings for the plaintiff,” and directed the defendant to deliver to the plaintiff or to his order a deed of the said premises upor

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payment to the defendant of the sum of $794.02. This judg. ment was modified by the appellate division by deducting there from the sum of $50 for services not rendered in the action which resulted in this plaintiff's recovery of the land, and, as thus modified, it affirmed the judgment herein.

Charles D. Ridgway, for appellant.

George Edwin Joseph, for respondent.

WERNER, J. (after stating the facts). In our view of this case, it is unnecessary to determine whether the defendant had either a general equitable lien or a specific attorney's lien upon the lands described in the complaint. Any lien he may have had was expressly waived by his declaration of trust, in which he says, “I hold said property for the purposes expressed in said judgment, and in no other way,” and by the explicit provisions of which he binds himself “to convey the same to such person as said Stephen A. West may in writing direct, and to pay over the proceeds of such sale to said Stephen A. West.” The learned appellate division took the view that these words could not be construed as a waiver of defendant's lien, and should be held to mean nothing more than that he took the title as the nominee of the plaintiff, subject to the terms of the judgment in the suit of West v. Bush. We find ourselves unable to concur in this view. It is to be remembered that the defendant, before he became plaintiff's trustee, had been his attorney in the suit out of which the subject of the trust arose. While sustaining that intimate and confidential relation to the plaintiff, he assumed the trust under which he now holds the property in suit. In assuming this trust, the defendant, with full knowledge of his legal rights, and with presumptive knowledge of the effect of his acts, made a formal and most explicit declaration of trust, in which the statement that he holds the property for the purposes expressed in the judgment therein described is emphasized by the declaration that he holds the same "in no other way." This is followed by the equally unequivocal statement that, upon

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the conveyance of said premises to such person as said West may in writing direct, he (the trustee) will “pay over the proceeds of such sale to said Stephen A. West.” It is said that any construction of this language which attributes to the defendant an intention to waive his lien is forced and unnatural. We think that any other construction would be repugnant to the plain meaning of the words used. We find it difficult, indeed, to discuss at length a proposition so obrions, and in such exact accord with the principles applicable to the subject of waiver. We think it was error to allow the defendant any sum whatever for his services as attorney, and that his recovery should have been limited to the allowance made to him as trustee, which, for apparent reasons, rests upon an entirely different basis than his compensation as attorney. The judgment of the court below should be modified by deducting therefrom the sum of $150, in addition to the $50 deducted by the appellate division, and as thus modified affirmed, without costs to either party.

All concur, except Parker, Ch. J.
Judgment accordingly.

Appellate Division.

(Nov

ELSTER v. VIELE et al.

[55 App. Div. 190; 100 St. Rep. 951; 66 Supp. 951.]

(Supreme Court, Appellate Division, Third Department. November 16,

1900.

1. JUSTICES OF THE PEACE-JOINT JUDGMENT-JOINT DEFENDANTS. Where, in an action in a justice's court against three defendants who

were joint contractors, the judgment does not comply with Code Civ Pro. § 3020, providing that in an action against persons jointly indebted, where only part are served with process, judgment must be en

tered against all, the judgment entered will be reversed on appeal. 2. SAME-JUDGMENT-AMENDMENT ON APPEAL. The county court, on appeal from a justice's court has no authority to

modify a judgment entered against only the defendants served in an

NOTE.—EXTENT OF RELIEF ON APPEAL TO COUNTY COURT ON THE LAW.

a. Statutory provisions.
b. Partial affirmance.
c. Modification.
d. New relief.
e. New trial.

1. Manifest injustice.
2. Satisfactory excuse.

The sections of the Code of Civil Procedure which prescribe what relief the county court may grant on appeal, where a new trial is not demanded, are as follows:

a. Statutory provisions.

§ 3063. The appellate court may affirm or reverse the judgment of the justice, in whole or in part, and as to any or all of the parties, and for errors of law or of fact, and where the judgment is contrary to or against the weight of the evidence, the appellate court may, upon its reversal of a judgment, order a new trial before the same justice or before another juus

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