respondent, simply because it deemed their [new trial granted, with costs to abide the effect favorable to the appellants. Whatever final award of costs. documents were treated as the equivalent of evidence by the Appellate Division may be so treated in this court; but the Court of Appeals is not bound to adopt the same view as to their meaning and effect. CULLEN, C. J., and CHASE, CUDDEBACK, HOGAN, and MILLER, JJ., concur. GRAY, J., dissents, on opinion of Burr, J., below. Judgment reversed, etc. (208 N. Y. 480) CROKER v. WILLIAMSON et al. (Court of Appeals of New York. June 3, 1913.) MENCEMENT OF ACTION -- APPLICATION OF Code Civ. Proc. § 398, providing that an action is commenced against a defendant withwhen summons is served on him or on a coin the meaning of any provision of this act defendant united in interest with him, applies to an action to determine the validity of a will under section 2653a, requiring such action to be commenced within two years after probate; both sections being parts of the same act. [4] In the light of the Huntington and Horse Neck patents, then, what was the eastern boundary of the tract conveyed by the Andros patent of 1677 to the town of Oyster Bay? Obviously it would have been the range line running by "the head of the Cold Spring" from the South Sea to the sound were it not that the Huntington and Horse Neck patents, prior in date, had grant- 1. LIMITATION OF ACTIONS (§ 119*) — COMed to other patentees lands bounded on Cold Spring Harbor and the bay of Oyster Bay, ay, and extending westward of the range line protracted from the head of Cold Spring Harbor to the sound. The reference to "Huntington Limmitts" in the general description in the Andros patent, and the fact of the prior patent to Horse Neck making its western boundary Oyster Bay, show that the range line thus prolonged was not to control so far as it would cut off and give to the grantees under the Andros patent any lands which had previously been granted to others. If carried straight from the head of Cold Spring Harbor to the sound it would apparently lie so far east as to cut off territory already granted to the patentees of Huntington and Horse Neck, which could not have been intended. The result of this discussion is the conclusion that the whole of the land under water in Cold Spring Harbor and the bay known as Oyster Bay was granted to the town of Oyster Bay by the Andros patent of 1677. It follows that the state had no title to the property which it assumed to grant to Mr. Tiffany as owner of the adjacent upland, and that the dissenting justices in the Appellate Division were right in holding that, upon the case as presented in that court, the defendants should have prevailed in the action. It is a matter of historical interest that the claim of the town of Oyster Bay to the lands under water to which it now asserts title is not a new idea. The case of Rogers v. Jones, 1 Wend. 237, 19 Am. Dec. 493, decided by the old Supreme Court in 1828, was a suit for a penalty under a by-law of the town which declared that "no person, not being an inhabitant of Oyster Bay, shall be allowed to rake or take any oysters in the creeks or harbors of the town of Oyster Bay, under the penalty of $12.50 for each offense." The defendant took and carried away 100 oysters from waters within 100 yards of the beach on Lloyd's Neck, and the case was decided upon the assumption that this part of the bay belonged to the town. [Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 529-535; Dec. Dig. § 119.*] 2. WILLS (§ 81*)-PROBATE-JUDGMENT. [Ed. Note.-For other cases, see Wills, Cent. The fact that the legatee, service of summons upon whom, in a proceeding to determine validity, is relied upon as establishing commencement of the action as against other defendants, offered objections to the original proserved an answer praying for the same relief bate, and since the beginning of this action has desired by plaintiff, did not prevent such legatee's interest from being "united" with that of within Code Civ. Proc. § 398, providing that other defendants seeking to sustain the will an action is commenced against defendant when summons is served on a codefendant united in interest with him. of Actions, Cent. Dig. §§ 529-535; Dec. Dig. [Ed. Note.-For other cases, see Limitation § 119.*] Appeal from Supreme Court, Appellate Di vision, First Department. Action by George F. Croker against Smith Williamson, as sole executor of Francis C. Taylor, and others. From an order of the Appellate Division (154 App. Div. 930, 139 N. Y. Supp. 842) affirming an order denying a motion for judgment on the pleadings, defendants Harry and Thomas Taylor appeal. Affirmed. See, also, 140 N. Y. Supp. 1115. E. D. Miner, of New York City, for appellants. David M. Neuberger, of New York City, for respondent. HISCOCK, J. The question involved concerns the application of the statute of limita The judgment should be reversed, and a tions to an action brought, as this one was, under section 2653a of the Code of Civil Procedure to determine generally the validity of a will and of the probate thereof. That section provides that, with certain exceptions not important here, an action brought under its provisions "shall be commenced within two years after the will or codicil has been admitted to probate." The appellants, who are legatees under the will here involved, were nonresidents of the state, and service of the summons was not made on them within the period specified. The service was, however, made within such period upon another legatee and upon the executor of the will, who were necessary parties defendant to the action. I shall assume that the period for commencement of this action prescribed by section 2653a was not extended by the nonresidence of the appellants, as might have happened under other statutory provisions for the limitation of actions, and that therefore no requisite commencement of the action by service of the summons upon them was made. Section 398 of the Code, however, provides: "An action is commenced against a defendant, within the meaning of any provision of this act, which limits the time for commencing an action, when the summons is served on him; or on a codefendant who is a joint contractor, or otherwise united in interest with him." The two questions which arise under this section are: First, whether it applies to the special statute of limitations now being discussed; and, second, if it does, whether various legatees or legatees and executors under and of a will which is being attacked are "united in interest" within the last clause of said section. [1] The answer seems clear that said section is applicable to the statute of limitations governing this case. Such statutory provision simply limits the time within which such an action must be commenced. It does not attempt to place any restriction upon the methods by which the action may be begun, and therefore there is no reason for holding that a plaintiff in such an action should not be entitled to the benefits of a general provision telling him how he may commence his action. In the next place section 398, by its express terms, covers such a case as this, because it applies to the commencement of any action covered by "any provision of this act," and of which act both sections 2653a and 398 are parts. While the second question may afford more opportunity for debate than the one just answered, the answer thereto nevertheless seems to be reasonably certain. Section 2653a requires that "all the devisees, legatees and heirs of the testator and other interested persons, including the executor or administrator, must be parties to the action." The issue to be determined is "whether the writing produced is or is not the last will and codicil of the testator, or either." The verdict is erty unless a new trial be granted. If the judgment is to the effect that the writing produced is the last will and codicil, it is not only conclusive upon the parties to the action, but must expressly enjoin them and those claiming under them from thereafter maintaining any action or defense based upon a claim that such writing is not the last will or codicil or either of the testator. Conversely, if the verdict and judgment are to the effect that the writing produced is not the last will and codicil of the testator, they must necessarily establish such invalidity as against all the parties. [2] It is clear, both upon reason and authority, that no such anomalous result could be tolerated as that of a judgment declaring a will invalid as to part of the legatees and valid as to others. 1 Woerner's Amer. Law of Administration (2d Ed.) § 500; Powell v. Koehler, 52 Ohio St. 103, 117, 39 N. E. 195, 26 L. R. A. 480, 49 Am. St. Rep. 705; Wells v. Wells, 144 Mo. 198, 45 S. W. 1095; Matter of Freud, 73 Cal. 555, 15 Pac. 135. [3] Thus it appears that, in the face of an action involving the general validity of a will and of the probate thereof, the interests of legatees are so tied together that they cannot be separated and that a judgment rejecting or upholding the will as to one legatee will similarly affect the others. Their interests under the will must stand or fall together, and it would seem to be pretty clear that they are therefore "united." It is contended in this case that this reasoning, even if ordinarily applicable, does not apply because it appears that the legatee, service of the summons upon. whom is relied upon as establishing due commencement of the action as against appellants, offered objections to the original probate of the will and since the commencement of this action has served an answer asking for practically the same relief as that desired by the plaintiff, and it is urged that under these circumstances she cannot be said to have an interest united with that of the appellants who desire to have the will sustained. No question of motives or good faith is involved. In respect to this contention it seems to me that, at least on the facts appearing in this case, the question of united interest must be determined by the provisions of the will and not by some conduct dehors the instrument. If the will confers benefits upon various people, the presumption follows that they are interested in maintaining it, and in my opinion it would be unwise to hold that this presumption, flowing from the instrument itself, is avoided for the purposes we are now considering by showing that some legatee at some time has done or said something or, after the action has been commenced, has taken a position which indicated that for some reason he thought that his situation would be improved by destroying rather than upholding the will. in proceeding under section 398 of the Code [ and might lead to very unjust consequences to one who had commenced his action in accordance with the requirements thereof and in reliance upon the provisions of the instrument which he was attacking as a test of the union of interest amongst various people. We think that the order appealed from should be affirmed, with costs, and the question certified to us answered in the negative. CULLEN, C. J., and GRAY, WERNER, COLLIN, CUDDEBACK, and MILLER, JJ., concur. Order affirmed. (208 N. Y. 503) YOUNG v. INGALSBE. (Court of Appeals of New York. June 3, 1913.) 1. FRAUDS, STATUTE OF (§§ 89, 96*)-SALES OF PERSONALTY-DELIVERY AND RECEIPT. Under Personal Property Law (Consol. Laws 1909, c. 41) § 31, providing that a contract for the sale of any goods for the price of $50 or more, where the buyer does not accept and receive part of such goods or at the time pay part of the purchase money, is void unless it or some note or memorandum of it be in writing, subscribed by the party to be charged or by his lawful agent, the participation of both parties is necessary, though the act may originate with the vendor or with the vendee, and the establishment of a verbal contract by parol testimony is not interdicted and neither party can create the evidence which shall prove the unwritten contract as against the other. [Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. §§ 165-173, 186; Dec. Dig. §§ 89, 96.*] 2. FRAUDS, STATUTE OF ($ 90*)- SALE OF PERSONAL PROPERTY-DELIVERY AND RECEIPT. Plaintiff and deceased owned together a law library and entered into an oral agreement whereby plaintiff purchased the interest of deceased, the purchase price to be applied by plaintiff upon an indebtedness of deceased to him, and immediately thereafter plaintiff assumed possession and ownership, pasted labels on the books with his name thereon, and gave deceased credit for $77 on account of several items of the indebtedness. Held that, as the seller did not by act nor participation in any act subsequent to the agreement assent to or confirm it, and as the acts of the buyer were individual and independent, there was not such a delivery and acceptance as to take the transaction out of the statute. Appeal from Supreme Court, Appellate Division, Third Department. Action by William E. Young against Grenville M. Ingalsbe, as executor of Lyman H. Northup, deceased. From a judgment of the Appellate Division (151 App. Div. 375, 135 N. Y. Supp. 939) modifying and affirming a judgment for defendant entered upon the report of a referee to hear and determine the action, plaintiff appeals. Affirmed. Erskine C. Rogers, of Hudson Falls, for appellant. Thomas A. Sherman, of Hudson Falls, for respondent. COLLIN, J. The plaintiff claimed, as a . creditor, a sum from the estate of Lyman H. Northup, deceased. The statute of limitations barred his recovery (except as to one item allowed by the judgment of the Appellate Division), unless a transaction between the plaintiff and the deceased constituted a sale by the latter to the former of his interest in certain books and the crediting by the former of the price upon the indebtedness, and prevented its application. question for our determination is: Did the transaction effect that result? The The transaction as found by the referee was: The plaintiff and the deceased owned, with equal interests, a law library. The deceased was indebted to plaintiff and they, at a stated time, entered into an agreement, wholly unwritten, whereby the plaintiff purchased the interest of the deceased, the purchase price to be applied by the plaintiff upon the indebtedness. Immediately after the time when the agreement was made, the plaintiff accepted of the interest and caused to be pasted upon the backs of the books leather labels with his name printed thereon, took possession, and assumed and still assumes ownership of the books, and gave the deceased credit for the sum of $77 on account of and pro rata on the several items of the indebtedness. The part of the statute of frauds relevant to the transaction is: "Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charg ed therewith, or by his lawful agent, if such agreement, promise or undertaking: * (6) Is a contract for the sale of any goods, chattels or things in action for the price of fifty dollars or more, and the buyer does not. accept and receive part of such goods, or the evidences, or some of them, of such things in action; nor at the time, pay any part of the purchase money." Personal Property Such contract was not made valid by the Law (Consol. Laws 1909, c. 41) § 31. credits given the deceased by the plaintiff [1] The statute made void the verbal agreesince it was not made at the time of the agreement in the present case unless there was, ment and since deceased was not in any way an actor in regard to it. [Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. §§ 162, 170, 171, 174 179; Dec. Dig. § 90.*] 3. FRAUDS, STATUTE OF (§ 95*)-SALE OF PERSONAL PROPERTY-PART PAYMENT. [Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. §§ 183-185; Dec. Dig. $ 95.*] subsequent to and in pursuance of it, either the acceptance and receipt by the plaintiff of Northup's interest or the payment by him, at the time the agreement was made, of the the strength of or pursuant to it but under another and prior arrangement and, if acquired subsequent to the contract, was without a delivery and through his sole and exclusive act. Under either hypothesis the title of the deceased to the books did not pass to the plaintiff by virtue of a receipt and acceptance because he did no act by which he relinquished his dominion or recognized and confirmed that of the plaintiff over them. Brand v. Focht, 1 Abb. Dec. 185; Marsh v. Rouse, 44 N. Y. 643; Stone v. Browning, 68 N. Y. 598; Rourke v. Bullens, 74 Mass. (8 Gray) 549. purchase price or a part thereof. The rule of the common law that a mere contract for the sale of goods, where nothing remains to be done by the seller before making delivery, transfers the right of property, although the price has not been paid nor the thing sold delivered to the purchaser (Olyphant v. Baker, 5 Denio, 379; Bissell v. Balcom, 39 N. Y. 275), is devitalized by the statute in the cases within its provisions. In those cases the statute renders essential to the proof of a valid contract of sale, not only evidence of the verbal contract, but also evidence of a receipt and acceptance by the vendee of a part of the goods or of a payment at the time the oral agreement was made. The contract must be authenticated by a prescribed act of the parties in pursuance and part performance of it. The act may originate with the vendor or vendee; with the vendor if a delivery of part of the goods and their acceptance by the vendee is the ground for validating the contract; with the vendee if part payment is relied upon. In either case the participation and assent of both parties to it is necessary. The receipt of the goods by the vendee implies a delivery by the vendor. Delivery and receipt of the goods without acceptance is insufficient, and payment implies a receipt and acceptance of the consideration by the party to whom it is made. Hawley v. Keeler, 53 N. Y. 114; Pitney v. Glens Falls Ins. Co., 65 N. Y. 6, 26. While the statute does not interdict the establishment of the verbal contract by parol testimony, it guards against the misunderstanding, misconception, STATE BANK OF BROCTON V. BROCTON or perjury of the parties by requiring proof of the mutual confirmatory act evidencing intelligence and finality concerning it on the part of each. A writing, of course, evidences the contract as to both parties. Where it is omitted, but the vendee has paid part of the price or the vendor has delivered and the buyer has accepted a part of the goods upon the strength of the agreement, those acts furnish unequivocal evidence of the existence of a contract of some sort between them, although its terms and the performance of the attesting act must after all depend upon the recollection of witnesses. The design of the statute requires that neither party can create the evidence which shall prove the unwritten contract as against the other. Shindler v. Houston, 1 N. Y. 261, 49 Am. Dec. 316; Rodgers v. Phillips, 40 N. Y. 519; Hinchman v. Lincoln, 124 U. S. 38, 8 Sup. Ct. 369, 31 L. Ed. 337. [3] Manifestly the contract was not made valid by the credit given the deceased by the plaintiff and for two reasons: made at the time of the agreement; the deceased was not in any way an actor in regard to it. Hunter v. Wetsell, 57 N. Y. 375, 15 Am. Rep. 508; Brabin v. Hyde, 32 N. Y. 519; Matthiessen & Weichers Refining Co. v. McMahon's Adm'r, 38 N. J. Law, 536. The judgment should be affirmed, with costs. CULLEN, C. J., and WERNER, WILLARD BARTLETT, CHASE, and HOGAN, JJ., concur. HISCOCK, J., absent. Judgment affirmed. (208 N. Y. 492) FRUIT JUICE CO. et al. (Court of Appeals of New York. June 3, 1913.) EVIDENCE (§ 244*)-DECLARATIONS BY CORPORATE OFFICERS. In an action by a bank to foreclose a mortgage, where the trustee in bankruptcy of the mortgagor charged that the mortgage was fraudulently withheld from record for the purpose of giving the mortgagor a fictitious credit, declarations of the the bank's president as to it was error to permit the trustee to prove why the mortgage was not recorded, which were made after the mortgage was recorded, and while he was not engaged in any transaction for the plaintiff with which the statements were connected, or to which they were pertinent. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 916-936; Dec. Dig. § 244.*] Appeal from Supreme Court, Appellate Division, Fourth Department. Action by the State Bank of Brocton against the Brocton Fruit Juice Company Court dismissing plaintiff's complaint was afand others. The judgment of the Supreme firmed by the Fourth Appellate Division (152 App. Div. 335, 136 N. Y. Supp. 396), and plaintiff appeals. Reversed and remanded. [2] The facts found by the referee in this case do not establish the contract. Upon the part of the deceased there was merely the naked, verbal agreement. He did not by any act or participation in any act subsequent to it assent to or recognize or confirm it. Each act of the plaintiff was individual and independent. His possession of the books, if had at the time of the agreement, was not on respondents. Arthur B. Ottaway, of Westfield, for appellant. L. L. Thrasher, of Fredonia, for vent. Since the judgment must be reversed for errors in the admission of evidence hereafter to be considered, and since the testimony may be changed on another trial, it does not seem desirable to consider the question at this time whether the proofs and findings sustain the judgment which has been rendered. It does seem proper, however, before passing to a consideration of the errors referred to, and which without any doubt call for a reversal of the judgment, that in my opinion that question is one for debate. HISCOCK, J. This action was brought to | expired before the mortgage was finally put foreclose a mortgage on real estate executed on record or the mortgagor had become insoland delivered to plaintiff by a corporation known as the Brocton Fruit Juice Company. Before the action was commenced a trustee in bankruptcy of the mortgagor had been appointed, and he and various persons, assumed to be judgment creditors, were joined as defendants. The latter did not defend, but the trustee in bankruptcy served an answer whereby in substance he alleged that the mortgage by agreement of the parties thereto was fraudulently withheld from record for the purpose of enabling the mortgagor to maintain and obtain credit, which it did succeed in doing through such suppression of record. On the defense thus interposed it was held that the mortgage was fraudulent and void as to the trustee in bankruptcy, and judgment rendered dismissing the complaint. Amongst others, the trial court found as a supposed basis for such judgment, in substance, the following facts: That said mortgage was executed September 18, 1905, and recorded November 4, 1909; that the mortgagor became insolvent some time in September, 1909, and that the plaintiff knew of such insolvency after November 8, 1909, and that the mortgagor was in financial difficulties during the year 1909; that said mortgage was withheld from record pursuant to an understanding between the parties, for the purpose of giving said mortgagor a false and fictitious credit and financial standing, and that the effect of withholding it from record was to give such credit and standing; that statements were made by the plaintiff's president prior to the recording of the mortgage, for the purpose of inducing creditors to grant extensions of credit to said mortgagor, and that the failure of plaintiff to record said mortgage was "willful." But while there are these general findings concerning credit, there are more specific findings, which, construed in the light of the referee's opinion, make it apparent that no creditor, save one, was induced to give or extend credit as the result of this failure to record the mortgage, and that creditor simply extended payment of its indebtedness for a period which One Hall was president of the plaintiff, and represented it in accepting and dealing with the mortgage. Defendant was permitted to prove declarations made by Hall on more than one occasion after the mortgage had been placed on record, explaining why it had been withheld from record. Without setting forth the evidence thus given, it may be stated that it was of a character injurious to plaintiff and utterly incompetent. At the time Hall was not engaged in any transaction in behalf of the plaintiff with which these statements were connected, or to which they were pertinent. The general rule is quite elementary that an agent may not bind his principal by declarations which are merely historical, and which have no connection with any transaction then being conducted by him with authority for his principal. Anderson v. Rome, W. & O. R. R. Co., 54 N. Y. 334; Merchants' Nat. Bank v. Clark, 139 N. Y. 314,.34 N. E. 910, 36 Am. St. Rep. 710; Taylor v. Commercial Bank, 174 N. Y. 181, 66 N. E. 726, 62 L. R. A. 783, 95 Am. St. Rep. 564. Therefore, without considering other alleged errors of a somewhat similar nature in the admission of evidence, it follows that the judgment must be reversed and a new trial granted, costs to abide event. CULLEN, C. J., GRAY, WERNER, COLLIN, CUDDEBACK, and MILLER, JJ., concur. Judgment reversed, etc. |