119 N.Y.S. 520 | N.Y. App. Div. | 1909
Lead Opinion
■ The plaintiff brings this action to recover $150 deposited on entering into a contract with the defendants for the purchase of certain real estate in the borough of Brooklyn, together with $100 for expenses in examining title, and $300 for other damages, the latter claim having been dropped from consideration at the trial. The parties have agreed that on the 21st day of September, 1908, a
, The parties admit the formal matters, such as the chain of title, the original ownership, the will of such owner, the survival of the parties who were to be beneficiaries under the will, etc., and the only question, on the merits, was whether the conveyance by Elsie A. Yan Siclen, as executrix and trustee, without the concurrence of the two remaining executors named in the will, or a substitution for them, operated to give a merchantable title to the defendants’ predecessor in title. At the close of the plaintiff’s case, no evidence having been produced, except as to the services rendered in connection with the search of title, defendants moved to dismiss the complaint on the ground that the plaintiff had failed to show that the title was unmarketable, and on the further ground that “ it now
It is not claimed that the defendants acted under the provisions of section 179 of the Municipal Court Act; no question of the jurisdiction of the court was raised until at the close of the trial. Section 2 of the act in question provides that the Municipal Court cannot take cognizance of any civil actions “ where the title to real property comes in question as prescribed in title four of this act.” The word “ prescribe ” lias a well-defined meaning; it is “ to lay down authoritatively as a guide, direction or rule; to impose as a peremptory order; to dictate ; to point; to direct.” (22 Am. & Eng. Ency. of Law [2d ed.], 1179.) Section 179 (tit. 4) of the act provides that the defendant may answer and show facts indicating that the title to real estate is involved, whereupon, by the provisions of section 180, the defendant is called upon to file a bond, which secures to the plaintiff, under subsequent sections, the right to bring his action in the Supreme Court. Then section 183 steps in and provides that if this bond is not given to the court “it has jurisdiction of the action, and must proceed therein, and the defendant is precluded in his defense from drawing the title in question.” It thus appears that the court is not without jurisdiction in such actions; it is only limited under the conditions prescribed, and the defendants here are not questioning the title in any way. But section 184 makes a further provision, that if “ it appears upon the trial, from the plaintiff’s own showing, that the title to real property is in question, and the title is disputed by the defendant, the court must dismiss the complaint, with costs, and render judgment against the plaintiff accordingly.” It is a fundamental rule of construction that all words of a statute are to be considered and given effect, within reason, and when the statute limits jurisdiction to matters “ as prescribed ” elsewhere, and we find words at the point mentioned which have a well-defined meaning, we are not free to pass them over. It is only where “ the title is disputed by the defendant” that section 184 of the Munici
It is not essential to the plaintiff’s cause of action that the title offered should be absolutely bad. He is entitled to relief unless the defendants were able to give him a marketable title, which is a title free from reasonable doubt. (Lakey v. Kortright, 132 N. Y. 450, 455, and authorities there cited.) While the question is, perhaps, a close one, depending upon whether Mrs. Van Siclen acted in her capacity of sole surviving executrix or as a sole surviving trustee, she being the only beneficiary, we are of the opinion" that under the rule recognized and asserted in the case of Doscher v. Wyckoff (132 App. Div. 139) the conveyance made by Elsie A. Van Siclen, as executrix and trustee, operated to give a good title and to fulfill their contract. The power was given to the executors of the will of Jacob T. Van Siclen “ to sell and dispose of any real estate of which I may die seized, at such times as they may deem for the best interest of my estate, at either private or public sale, * * * hereby giving and granting untó my said executors, their survivor or survivors, successor or successors, all such power and authority as shall be necessary to carry out the provisions and requirements herein contained, and also full power and authority to execute, acknowledge and deliver all proper deeds and other instruments in writing in the law and under seal which may be necessary for the conveyance of my real estate or any part thereof,” etc. This power being given to the executors, their survivor or survivors, and Mrs. Van Siclen being the only executor, to qualify, the power of sale
As the learned Municipal Court did not pass upon the merits of the case it is necessary for a new tidal unless the parties should elect to settle. The judgment- appealed from should be reversed and a new trial ordered, costs to abide the event.
Rich and Miller, JJ., concurred ; Hirschberg, P. J., concurred in result; Burr, J., read for affirmance.
Dissenting Opinion
(dissenting):
I dissent. Under the decision handed down by us in Doscher v. Wyckoff (132 App. Div. 139), the title under the Van Siclen will was perfectly good. As we tried to point out in that case, the power of sale was given not as in Haendle v. Stewart (84 App. Div. 274) to the trustee solely for the purposes of the trust, but to the executor generally for any of the purposes of the will. The beneficiary of the trust was not the only person whose estate was conveyed by the execution of the power, and she was not the only person who was affected by such exercise. The condition is the same here. I think that the construction of the Municipal Court Act suggested in Mr. Justice Woodward’s opinion is too narrow. It certainly appeared upon the trial that the question of title was involved in this case. (Mun. Ct. Act [Laws of 1902, chap. 580], §. 184.) Plaintiff’s complaint shows it, and all of the proof is directed to the same point. The question at issue is, who was in default for the failure to complete the contract of sale? Was it the plaintiff, for refusing to accept a good title, or the defendants, for inability to convey good title ? There is a clear distinction between a ease where the title is either entirely good or entirely bad, and a case where the title is good, but the possession under it is affected by some alleged encroachment. (Elinsky v. Berger, 87 App. Div. 584.) Within the meaning of section 184 of the act, the title was “ disputed by the defendant.” This clearly means that the plaintiff’s contention as to the validity of the title, which is the foundation of the cause of action, is disputed by the defendants. To hold otherwise would be to hold that if a plaintiff asserted the title to be good, and defendant denied it, the court would be ousted of jurisdiction ; but if a plaintiff asserted the title to be bad and defendant denied it,
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.