App. Div.]

evidence of a weak mind or lack of sufficient intelligence to transact ordinary business and to make any disposition of her property that she pleased. There are objections to evidence, but they present no question that requires discussion, and I am clearly of the opinion that there is nothing in this record that would justify us in disturbing the finding of the trial judge. It follows that the judgment should be affirmed, with costs. Van Brunt, P. J., and Laughlin, J., concurred; Patterson and Hatch, JJ., dissented. William Murray and Others, Plaintiffs, v. Walter T. Miller and Others, Defendants. (Action No. 2.)-Judgment ordered for plaintiff, with costs.- Submission of controversy upon agreed case.—

INGRAHAM, J.: The question presented upon this appeal is the same as that presented in Murray v. Miller, No. 1 (85 App. Div. 414) and for the reasons stated in the opinion in that case judgment is directed for the plaintiff as prayed for, with costs. Van Brunt, P. J., O'Brien and McLaughlin, JJ., concurred; Hatch, J., concurred in result.

Heloise D. Rose, Respondent, v. William W. Durant, Appellant.- Judgment affirmed, with costs. Appeal by the defendant from a judgment in favor of the plaintiff, entered upon the report of a referee,-

The

HATCH, J.: Dr. Thomas C. Durant died intestate on the 5th day of October, 1885, leaving him surviving as his only heirs at law and next of kin his daughter, the plaintiff, his son, the defendant, and his widow Heloise H. Durant, since deceased. Dr. Durant had been the owner of a large amount of property, and at the time of his death it was somewhat involved and several judgments had been entered against him. This trouble principally grew out of the affairs of the Adirondack Railroad Company, of which he was the president and chief promoter. On the day of his funeral there was a conversation between the defendant and his mother and sister, in which the defendant stated that as he was the only man in the family the burden of managing the estate would fall upon him, and he desired his mother and sister each to give him a full power of attorney to manage and control the business affairs of the deceased. The mother consented to this and shortly thereafter she executed and delivered to the defendant such power of attorney. plaintiff at first demurred, but after a few days, upon the urgent request of the defendant and her mother, she consented, and without consulting a lawyer, she executed a power of attorney and delivered it to the defendant, who immediately entered into possession of all the property of deceased, and was thereafter appointed administrator of the estate. The plaintiff shortly after the execution and delivery of the power of attorney went to Europe, where she remained for several years. At different times while the plaintiff was resid ing in Europe, she demanded an accounting of the defendant, which he refused, informing her that there was nothing coming to her on account of their father being so seri ously involved, and that there was one judg ment against him of $20,000,000. The deceased had left a valuable property, consisting largely of stocks, bonds and securities of the Adirondack company, and its successor corporation, the Adirondack Railroad Company. These securities embraced mortgages upon Adirondack lands in the names of Enoch H. Rosekranz and Albert N. Cheney. At the time of Dr. Durant's death certificates for stock and bonds stood in the name of Thomas

C. Durant, as agent for the respondent herein, Heloise H. Durant, the widow, and other persons. The defendant appellant has by careful management and clever manipulation secured control of all this property and has gotten the title thereto in his own name. The plaintiff returned from Europe, and on July 9, 1895, commenced an action for an accounting against the defendant. Upon the trial of that action the court dismissed the complaint upon the merits. The plaintiff appealed, the Appellate Division reversed the judgment and sent the case back for a new trial. (Frethey v. Durant, 24 App. Div. 58.) A new trial was had, and the court found that the plaintiff was entitled to an accounting, and in an interlocutory judgment entered therein, it was directed, among other things, that a referee be appointed to take the proof, and that the defendant make full discovery and account to the plaintiff in respect to the interest of Thomas C. Durant in and to all property which he held either in his name, or as agent, or in trust for any other person, and that such accounting should contain a statement of any moneys which the defendant used in protecting the estate from claims and judg ments and other interests; that the said defendant produce before the referee for examination all books of account, checks, stubs thereof, vouchers, securities and writings whatsoever, which were in the possession of Thomas C. Durant at the time of his death, and all such similar papers which the defendant had himself used or made in the management or control of said property. The defendant appealed from such interlocutory judgment and the same was affirmed by this court. (Rose v. Durant, 44 App. Div. 381.) On December 27, 1899, the defendant filed with the referee an account, but it accounted for no part of the Durant interest in the Adirondack investments, as defined by the interlocutory judgment, except 280 shares of the stock of the Adirondack Railway Company, a certificate for $3,000 in second mortgage bonds of said railway company, and a $7,000 interest in the $150,000 Rosekranz mortgage. The account was in substance the copy of an account and inventory filed by the defendant as administrator in a proceeding before the surrogate of Warren county, the county in which Dr. Durant resided at the time of his death. The referee then directed the defendant to file a further account, which should include the interest and securities mentioned in the interlocutory judgment. With such direc tion, the defendant "willfully" refused to comply. Nearly two years later an order was obtained adjudging the appellant in contempt, and directing that he be commit ted to close custody in the county jail until he should comply with the direction of the referee and the interlocutory judgment. From the order so entered, the defendant appealed to this court, where the order was affirmed without opinion (68 App. Div. 639.) Thereafter on February 10, 1902, the appellant filed a supplementary account, and on May 8, 1902, he filed a supplementary schedule. After the close of the case before the referee, three stipulations were filed with him. These three stipulations and the two supplementary accounts made a large part of the evidence taken before the referee useless, as they practically covered all the property of which an accounting had been directed by the referee and by the interlocutory judgment. The only thing left for the referee to determine was whether or not certain property which Dr. Durant held at the time of his death, as agent, was his own

individual property. Upon that question! the referee has found that such property was owned by Dr. Durant and that the plaintiff's share therein amounted to $462,088.54, which, with interest thereon, aggregated at the time of the date of the report $753,932.71. Upon motion the referee's report was confirmed at Special Term, and from the judgment entered thereon this appeal is taken. Practically, the only question left for this court to determine is, was there sufficient evidence to warrant the referee in finding that the property held by Dr. Durant, purporting to be as agent, was his individual property? The specific property to which such question relates was further narrowed by admissions and otherwise to the Cheney and Rosekranz mortgages, the so-called first mortgage bonds of $75 000, the certificates for the stock and second mortgage bonds of the Adirondack Railway Company, the money received on the forfeit of the Crane contract, a certain note of the Adirondack Railway Company for $37,140, and the rental of two locomotives and a car, paid by the railway company. The referee found that Dr. Durant owned $114,500 of the Rosekranz mortgage at the time of his death and that the defendant subsequently acquired the remainder thereof, $35,500, with money derived from the "Durant interest," for which the defendant is accountable. The evidence upon this point is documentary in character and is contained in assignments from Rosekranz to Dr. Durant. By these assignments it is established that Dr. Durant owned of this mortgage $82,500. In 1868 Rosekranz assigned to Dr. Durant and one Bushnel! $50,000 of this mortgage. In November, 1871, Bushnell assigned to Dr. Durant $7,000 of his share in the mortgage, thus bringing Dr. Durant's share up to $114,500 and leaving Bushnell's share $18,000. In December, 1872, Rosekranz assigned to Bushnell a further interest of $8,500, thus bringing Bushnell's share to $26,500. By various assignments this latter interest of Bushnell was assigned to the defendant, and it is admitted that the defendant acquired this interest with proceeds from the Rosekranz and Cheney mortgages. This accounts for $141,000 of the Rosekranz mortgage. The balance of $9,000, the evidence does not fully disclose just how it came into the possession of the defendant, but the whole Rosekranz mortgage was finally satisfied by Janet L. Durant, defendant's wife, although she had previously assigned it to the defendant. The defendant and his wife both testified that she had no money when she was married, and her testimony is that she never paid anything for the various assignments made to her. This evidence, in connection with the stipulation that whatever defendant had paid to get possession of this property came from the Rosekranz and Cheney mortgages, seems to warrant the conclusion reached by the referee upon this subject. The Cheney mortgage was for the same amount as the Rosekranz mortgage, and the referee found that Dr. Durant owned all of this mortgage. The facts in regard thereto are as follows: Cheney's executrix in 1868 contracted to sell this mortgage to Dr. Durant and the agreement was thereafter recorded in 1884; thereby public notice was given of Dr. Durant's title thereto. After the death of the executrix, and on April 19, 1896, Cheney and Fowler, administrators with the will annexed of Albert N. Cheney, deceased, made an assignment after the death of Dr. Durant to his widow. On the thirtieth day of April thereafter she assigned it to the wife of the defendant,

[Vol. 86.

who assigned it to the defendant on June 2, 1889. No reason is shown why the Cheney administrators should have made this assignment to the widow of Dr. Durant instead of to his administrator, except that there was an instrument, bearing date October 6, 1871, purporting to be an assignment of this mortgage by Dr. Durant to his wife, which was received subject to proof of delivery. The defendant relies in establishment of such delivery upon (1) the presumption of ownership by reason of the assignment be ing in her name, and (2) of the declaration made by Dr. Durant in his lifetime that his wife was the owner of the property and he was acting as her agent. So far as the presumptive proof is concerned it is the reverse of that claimed by the defendant. The title to this property was in Dr. Durant. The written agreement which he made with the executors of Cheney established that fact, and the agreement of purchase was subse quently consummated by payment on his part. He was not therein described as agent but as owner. The case relied upon by the appellant (Lowery v. Erskine, 113 N. Y. 52) holds that, under such circumstances, the presumption of ownership is in the party holding the title. Dr. Durant held the title in his lifetime and the presumption is that he was the owner. The declarations and admissions claimed to have been made by Dr. Durant, often a dangerous species of evidence, were made at the time when the written record disputed such fact. There is not a scintilla of evidence that Mrs. Durant knew that this mortgage was held by her husband for her as her agent, or that she knew anything about the execution of the assignment during the lifetime of her hus band. The assignment was found after the death of Dr. Durant, signed by him, and that is all that appears. Of proof of delivery or of ownership upon Mrs. Durant's part there is not a syllable. The instrument itself was not recorded until after Dr. Durant's death and was not acknowledged by him. Abundant reasons may be assigned why Dr. Durant was willing to make an agency appear, quite independent of such relationship existing between his wife and himself, and when it appears that the unacknowledged assignment of Dr. Durant was subsequently recorded and then assigned by the widow to the wife of the defendant and by the wife to the defendant without any consideration moving from anybody therefor, we have little difficulty in concluding that the referee was justified in finding that this mortgage was the property of Dr. Durant at the time of his death, and to charge the defendant with the same, with interest, and award to the plaintiff her one-third share thereof. The referee has also found that the so-called first mortgage of $75,000 was executed by the Adirondack Railway Company in January, 1883, reimburse for moneys received from T. C. Durant, agent; " that $63,238.78 thereof was issued and assigned to Durant, "agent,” in February, 1883, and that this item was the property of Dr. Durant in his lifetime. The same is also true as to the Adirondack Railway Company note of $37,140, which, with interest, amounted to $39,041.97. It was stipu lated that this note was made payable to T. C. Durant, agent. Also that the proof of the rolling stock, which was mentioned in stipulation No. 3 was owned by Dr. Durant, and that all of the second mortgage bonds to Durant, "agent," which amounted to $630,908.77, were likewise his property. This entire issue was payable to Thomas C. Durant or bearer, and he was entitled to surrender these bonds and receive therefor new

to

App. Div.]

certificates. After his death this was done and the new certificates were made out in the name of Mrs. Heloise H. Durant by the direction of the defendant The evidence which was introduced by the defendant to defeat the plaintiff's interest in the last four items is all of the same class and rests upon the same testimony, i. e., that Dr. Durant dealt with this property and was in fact the agent of his wife. The basis of this claim is built up from the fact that in 1853 Mrs. Durant had a small sum of money from her father's estate and that Dr. Durant had this money; that from time to time, being a man of considerable wealth, he made gifts of considerable sums and securities to his wife, whereby she became possessed of an independent property, which he subsequently took and invested in promoting and building the Adirondack Railway Company. It is not necessary that we rehearse the details in connection with this matter. This claim, coupled with the use of the word "agent," is the basis upon which it is sought to show that Dr. Durant did not own this property, but held and dealt with it as the agent of his wife. There is no evidence that Mrs. Durant had knowledge of the fact of such agency or that she was the owner of this property dur ing the lifetime of Dr. Durant, and the fact remains that the whole of the property through assignments and other instruments had become vested not in Mrs. Durant, the claimed principal, but in the defendant, and that without the payment of any consideration, save such as had been derived from the property itself. This claim carried to its fullest extent deprived Dr. Durant of any right, title and interest in and to any of the property for which the defendant has been called to account. If the item last specified was the property of Mrs. Durant then it follows that she owns the whole, and that Dr. Durant had no interest therein. Such were not the dealings. It appears that the certificates of the second mortgage bonds were issued to Dr. Durant on the 20th day of September, 1881, and at the same time and on the same day 250 of the bonds, which entitled the holder to trustee certificates of forty per cent, amounting to $44,589.37, were issued to Heloise H. Durant direct, while the others were issued to Dr. Durant, agent." All of these bonds came to Dr. Durant on account of his claim against the Adirondack Railway Company, and this individual claim, thus existing by the use of the word "agent," is claimed to deprive him of his ownership therein. In this connection evidence was given, and not only given, but it was admitted by formal stipulation, that in many places in the ledger of the Adirondack Railway Company and in the journal entries the abbreviations agt." after the name Thomas C. Durant is either written in at the end of a line or is interlined, and that this was done by a pensioned private secretary and clerk of the defendant, Mr. Banker, after the entries themselves were made, and in these books there is no account in the name of Dr. Durant as an individual. The Crane forfeit, so called, of $27,000 arose by reason of a failure to fulfill a contract of purchase of some of the Adirondack properties. Such sum of money was actually paid by Crane, and, as it related to a purchase of property which had come to the defendant as trustee, the forfeit inured to the benefit of the trust estate, and the defendant was properly charged therewith. It is needless, in view of the testimony to which we have already called attention, to go through with each item in further detail. It is patent upon the face of this record that the interest

་་

of Dr. Durant in this railway company was in the main his individual interest, and, so far as the word "agent" was used in connection with the accounts which he kept and which were entered in the books, it was used as a cover of the property, provoked probably by reason of his involved financial condition; but he represented no person as principal, except as it plainly appears, and dealt with the property as his own, and, when he died, held it as such. This property, under these circumstances, came into the hands of this defendant as the trustee for his mother and sister. He evidently applied to its management, business skill and judgment, and he produced, as doubtless Dr. Durant would have done had he lived, from these interests a very large property, which, by adroit manipulation under power of attorney given by his mother and sister, without cost to himself in money outside of what the property produced, in vesting title to the whole of this very large estate in himself. His mother became dependent, his sister languished in want, and he reveled in luxury. The defendant resisted every attempt to compel an accounting of his stewardship, and the bars of a jail confronted him before he could be induced to render an account of his proceeding. The learned referee has, with painful and painstaking care, gone ever this mass of figures and accounts; traced the transactions in the minutest detail, and upon evidence abundantly satisfying has charged the defendant with the sum for which he must account to the plaintiff. It is sufficient now to say that we are satisfied from the proof that the defendant made use of the method adopted by Dr. Durant in keeping his books to defraud his sister out of her patrimony, and in this scheme his mother did not escape. We have no hesitancy, therefore, in reaching the conclusion that the referee was correct in the conclusions which he reached, and that the judgment entered thereon is correct. It should, therefore, be affirmed, with costs. Van Brunt. P. J., Patterson and Ingraham, JJ., concurred; Laughlin, J., not voting. Frank J. Dupignac, Respondent, v. John Bernstrom, Individually and as Managing Director of Aktiebolaget Separator, and Others, Appellants.-Order modified as directed in opinion, and as modified affirmed, without costs. Appeal by the defendants from an order of the Special Term of the Supreme Court, entered in the clerk's office of the county of New York on the 28th day of May, 1903, granting a temporary injunction.LAUGHLIN, J.: The injunction order was granted on the complaint and affidavits. The facts, so far as material, are stated in our opinion sustaining the sufficiency of the complaint on an appeal from the interlocutory judgment on the decision of a demurrer thereto. (Dupignac v. Bernstrom, 76 App. Div. 111.) The injunction order restrains the De Laval Separator Company from paying to its stockholders more than ninety-five per cent of its surplus or net earnings set aside for the payment of dividends, and required it to deposit the remaining five per cent thereof with the Union Trust Company to await the determination of this action. his affidavit setting forth the facts alleged in the complaint, the plaintiff, under our former decision, establishes prima facie that he is entitled to five per cent of the dividends of this corporation. The stockholders, except the plaintiff, are non-residents. The order, therefore, in so far as it enjoins the payment of the dividends to them and requires the deposit thereof with the trust company was properly granted. The order, however,

40

By

further enjoins the transfer of any shares of | stock of the De Laval Separator Company pending the determination of this action, unless a notice of plaintiff's claim and a statement that the transfer is subject thereto be indorsed upon the assignment, and enjoins any further issue of certificate of stock in said company without a similar indorsement thereon or attached thereto that it is issued and accepted with notice of and subject to the claim of the plaintiff. It is manifest that such an indorsement upon the certificates of stock or assignments thereof would materially interfere with the rights of the stockholders to sell and assign their stock. The necessity for this relief by final judgment in the action in order to fully protect the plaintiff's rights is by no means clear and it should not be awarded until the issues are tried and plaintiff's rights are established, and it is shown to be essential to a protection of those rights. It follows, therefore, that the order should be modified by striking out these provisions, and as modified affirmed, without costs. Van Brunt, P. J., Patterson, Ingraham and Hatch, JJ., concurred.

Thomas J. Healy, Respondent, v. Metropolitan Street Railway Company, Appellant.-Judg. ment and order affirmed, with costs. No opinion.

The People of the State of New York ex rel. Francis T. McDonough, Relator, v. Michael J. Garvin, Superintendent of Buildings, Borough of the Bronx, New York City, Respondent. Proceedings affirmed and writ dismissed, with costs. No opinion. Daniel Buckley, Respondent, v. Metropolitan Street Railway Company, Appellant.-Judgment affirmed, with costs. No opinion. Robert F. Campbell, Respondent, v. Metropolitan Street Railway Company, Appellant.Judgment and order affirmed, with costs. No opinion. Van Brunt, P. J., dissenting. Mary W. Lennan, as Executrix, etc., of John M. Lennan, Deceased, Respondent, v. The Hamburg-American Steamship Company, Appellant.-Judgment and orders affirmed, with costs. No opinion.

The People of the State of New York, Respondent, v. Anton Lampel, Appellant.- Judgment affirmed. No opinion.

The People of the State of New York, Respondent, v. Joseph Goldman, Appellant, Impleaded with Morris Gross and Others.Judgment affirmed. No opinion. Ephraim B. Levy, Respondent, v. John Schreyer, Appellant.- Order affirmed, with ten dollars costs and disbursements. No opinion.

The People of the State of New York ex rel. George Blair, Respondent, v. Homer Folks, Commissioner of Public Charities of the City of New York, Appellant.-Order affirmed, with fifty dollars costs and disbursements. No opinion.

Ellis Goldberg, Respondent, v. George M. Ja cocks and Joseph F. Jacocks, Composing the Firm of Joseph F. Jacocks & Co., and Others, Defendants. Joseph F. Jacocks, Appellant. Order affirmed, with ten dollars costs and disbursements. No opinion. O'Brien, J., dissenting.

William W. Mandrey, Appellant, v. Willis L. Ogden and Others, as the Municipal Civil Service Commission of the City of New York, Respondents. - Order affirmed, with ten dollars costs and disbursements. opinion.

No

Mary J. Murphy, Respondent, v. Cecelia Hogan, as Executrix, etc., of George M. A. Keck, Deceased, Appellant.-Order affirmed, with ten dollars costs and disbursements. No opinion.

[Vol. 86.

The People of the State of New York ex rel. Ella Beebe, Appellant, v. The Warden of the City Prison of the Borough of Manhattan, City of New York, and William E. Wyatt, Justice of the Special Sessions of the Borough of Manhattan, City of New York, Sitting as a Magistrate of Said Borough, Respondents.-Order affirmed. No opinion. The People of the State of New York ex rel. Leah Van Linda, Appellant, v. The Warden of the City Prison of the Borough of Manhattan, City of New York, and William E. Wyatt, Justice of the Special Sessions of the Borough of Manhattan, City of New York, Sitting as a Magistrate of Said Borough, Respondents.- Order affirmed. No opinion.

Charles C. Dickinson, as Assignee of Eugene M. Earle, Individually, for the Benefit of Creditors, and as Assignee of Eugene M. Earle and William Pitt Earle as Copartners for the Benefit of Creditors. Appellant, v. Eugene M. Earle and Others, Respondents.Order affirmed, with ten dollars costs and disbursements. No opinion.

Patrick W. Cullinan, as State Commissioner of Excise, Respondent, v. Fidelity and Deposit Company of Maryland, Appellant, Impleaded with Criterion Club, Defendant. Judgment and order affirmed, with costs. No opinion.

Isidor Weissman, Respondent, v. Deborah Weissman, Appellant.— Order affirmed, with ten dollars costs and disbursements. opinion.

No

John Fleming, Respondent, v. Charles A. Brown, Appellant.- Motion denied. Memorandum per curiam.

af

Cornelius W. Luyster, Respondent, v. Frederick Joseph, Appellant.-Judgment firmed, with costs. No opinion. Van Brunt, P. J., dissenting.

John G. O'Keeffe, as Receiver, etc., of the Matt Taylor Paving Company, Appellant, v. The City of New York, Respondent.- Judgment and order affirmed, with costs. opinion.

No

Moses J. Wolf, as Trustee in Bankruptcy of Solomon J. Brumberg, Respondent, v. Estella Brumberg and Grace Brumberg, Appellants. Judgment affirmed, with costs. No opinion.

David F. Harbaugh v. Joshua M. Fiero.- Motion granted, with ten dollars costs. Bernard McDonald, Appellant, v. Bernard Naughton and Others, Trading as Naughton & Co., and The Third Avenue Railroad Company, Respondents. - Judgment affirmed, with costs. No opinion.

Hannah E. Nelson and Others, Respondents, v. Theresa Alice Oelrichs and Virginia Vanderbilt, Appellants, Impleaded with Others. Order affirmed, with ten dollars costs and disbursements. No opinion.

Hannah E. Nelson and Others, Respondents, v. Theresa Alice Oelrichs and Virginia Vanderbilt, Appellants, Impleaded with Others.— Order affirmed, with ten dollars costs and disbursements. No opinion.

In the Matter of Joseph Bieber.-Motion
granted, with ten dollars costs.
Robert D. Kent v. Etna Insurance Company.
Motion denied.

Peter Rigas, Respondent, v. George Livingston, as Commissioner of Public Works of the Borough of Manhattan, City of New York, and Another, Defendants. Morris Levy, Appellant. - Order affirmed, with ten dollars costs and disbursements. No opinion.

In the Matter of the Estate of Andrew Hack, Deceased. John Houser, as Surviving Administrator, etc., of Barbara Hack, Deceased, Appellant; Katharina Bothner and