*1 оf Statement case. and it is to that he would have demanded presumed $1,500 to him coin, $10,000 oí tendering United States The result currency. different, having he contracted to deliver currency having instead of in its increased value diminishing relatively it coin, is but that he should bear the loss. In just ensuing law the absence of contracts, must prohibiting they like other be enforced contracts executory delivery or stocks. goods and a trial should be reversed new judgment ordered, to abide the event.
with costs Church, concur; All Ch. J., sitting. reversed.
Judgment Edwin Mills et al, Respondent, E. Howell, John Appellants. reviewed in this affecting substantial cannot be though An order granting the resting in the the court discretion of if it is a matter entertaining appeal rests not such an for not The reason order. Code, the character of the court its restrictions questions only, confining law jurisdiction, review limited J., dissenting.) (Grover, specially authorized. except where concerned, will infants courts exercise property are Where interests, protecting guardians hold their will vigilant care in the most managing disposing of their engaged in are and all who per- good only, principles of faith not but to strict rigid adherence duty. every formance prevent competition judicial and a 'to at a sale arrangement A collusive inlaw, injury of an infant a fraud whether pursuance thereof to litem, guardian ad and subse- the consent of his with without made gain of the fraud can purchasers knowlеdge mortgagees and quent advantage therefrom. no discretion, not matters when involved questions These upon excep- presented if here the same as may they be reviewed upon a protection of the court sum- is entitled An infant tions. as in a formal action. such a sale as well set aside mary established, the discretion it is not within relief once right to *2 et Mills al. 1873.] of case.
Statement sumruary application reject remit absolutely the the infant to to action. application upon summary ordinarily grant
A relief a a refusal to controversy. adjudication of the merits of the It will bar final another given renew, summary unless leave is to but will not affect therefore, provision, denying remedy. A in an order relief appliсation, par- to limit which assumes by prescribing relief either bring limiting to an action for terms or ties such an action is the time for the commencement of erroneous. partition directing pre- of Judgment obtained in a suit sale was certain estate, M. a life (the mises which defendant E. owned G-. H.W. (then original plaintiff) minor) and defendant W. M. H. still own- ing plaintiff present attorney H., remainder. The for was G-. W. by premises arrangement, him, the a collusive devised were sold Upon of receipt and bid off H. for about a sixth their value. GLW. deed, purchaser mortgages upon pre- of referee’s executed $9,500. mortgages mises to amount of These were subsequently premises foreclosed, off and conveyed were bid to plaintiff. Upоn motion, thereafter, part defendants, to partition vacate the sale in the suit and for re-sale, the motion was denied prejudice to resorting defendants to without other proceedings relief, plaintiff payment if or tender paid by him for amount premises, taxes, with interest and sixty days within after date of order accept refuse to and convey, should Meld, that etc. the order* far so as the infant defendant error, was concerned and that was so required much thereof as pay specified defendants to the amount plaintiff as a condition of other relief and as therefor, limited time was,as defendant, error; the other also that these questions legal right, discretion, not matters and therefore so much the. here; portion was that the reviewable denying the order application of E. M. for a re-sale was in the court; discretion of the thereof, therefore, from so much dismissed. (Argued September May 20, 1873; 23, 1873.) decided Appeal from order of the General Term of the Supreme Court in the second judicial department, an order affirming Term motion of Special defendants for a denying re-sale, etc.
This was action for the partition sale of lands in N. Orange county, brought originally by Walter George Hurtin. on this motion showed’the papers facts.: following
William Hurtin died on the 4th day November, 1858, the owner possession question, Mills Howell of case.
Statement testament, which he devised a last will leaving his natural remainder D. Hurtin during life, Alfred same Hurtin, Walter and to plaintiff, George original if died without Hurtin; one defendant, William leaving D. have the whole. Alfred Hurtin, children, survivor into He sub- life went possession. tenant, immediately in the the mort- his interest property; sequently mortgaged Edwin Mills, became foreclosed, defendant, gage *3 1866, the 10th the com- the On day August, purchaser. E. were filed this John and Us action, pendens plaint for the Howell, attorney plaintiff. being present plaintiff, and is an who Mills Hurtin then still infant, William was had and such were proceedings appeared by guardian, sale 28,1867. and were entered partition January judgment the 1867, The the 22d sold lands referee, March, on day herein the for plaintiff $3,000. mentioned in complaint a collusive between by effеcted arrangement This was The referee deed of the same plaintiff gave parties. at the and same time first following, day April two premises executed mortgages amounting worth, were at the time of the sale $9,500. premises said That were about, $18,000. foreclosed mortgages E. their John Howell being attorney; mortgagees, sold under decree therein about the said premises John E. has and were bid who 1869, Howell, now June, claims same, for thereunder absolute the referee’s deed was taken from fee. An judgment partition where the Term, was to the General judgment taken to Court of affirmed, an appeal Appeals, E. Howell, John present plaintiff, is-now pending. Further facts for plaintiff. appear substitutеd original at Term was to follow- Special the opinion. effect: ing that the motion to such sale and for It is vacate ordered denied, be same hereby of such re-sale premises motion, paid by ten dollars costs opposing to the defend without prejudice plaintiff, defendants 325 -v. 18t3.] case. Statement of
ants or either of them to resort to for proceeding any proper tender to said relief, if, Howell, them payment by amount him for said plaintiff, paid premises taxes him interest thereon, the lawful paid by date of several after the amounts so within sixty days paid, tender shall refuse to order, said Howell accept them, and to either to such defendants, or payment, convey to such shall such convey elect receive person they 1 described in the said ance, judgment.” Gilbert O. Hulse The order is appeal- appellants.
able, and 4; be heard as a sub. §11, motion. may (Code, Rule 20 Ct. Platt, Y., 155; v. N. Appeals; King Tripp 37 v. 26 Cooke, Wend., Defendants have no other remedy. 149.) (McCotter v. 30 N. Defendants are entitled Jay, 80.) have re-sale v. Barb., ordered. 22 (Lefever Laroway, 167; Gould 18 Abb., Dodd, v. Duncan v. 2 Gager, 32-42; Paige, 101; Storm, C., id., Abb. S. Stryker S.], 424; 455; [N. *4 26 Platt, v.
King Wend., Geo. W. Hurtin took no 155,161.) title (Ferris his these by defendants. v. Craw purchase Den., 595; 2 S. 26C., Wend., v. 155; Westcott, Acer 46 ford, 384; N. Williamson v. Y., 15 Brown, id., 362; Baker v. id., 79; 39
Bliss,
70,75,
v.
Warner
4
Blakeman, Keyes, 155.)
are
chargeable
mortgagees
constructive notice of
the situation of the
v.
5 Sand.
(Pringle
property.
Phillips,
C.,
v.
151;
Dart,
S.
lies to this court. 32 Y., v. N. (McGregor 479; McGregor, Clark v. City Rochester, id., 7 355.) discretionary exercise of its its powers General Term review of Mills v.
326 Court, per Ohurch, Oh. J. Term is not here. the order of reviewable (Candee Special 1 v. 269; Bard, 43; v. 2 Fort v. Y., id., Lansing Lord, N. 1 Bk., id., 2 v. Mohawk Russell, id., 563; Schermerhorn Marvin v. 125; id., 533; Seymour, Dewater v. Kelsey, Van 3 Pr., 457; Svgs. v. How. 535; Wakeman, Hazleton id., Buff. id., 124; v. 28 Y., 160; v. 23 N. Dows Newton, Congdon, Bk. Rogers Hosack, v. 16Wend., 372; Rowley Benthuysen, Van id., 18 350.) aside J. The for Ch. setting judicial grounds
Church, than in Mere inade- limited here sales are more England. circumstances, is not unattended price, quаcy ordered there has been A resale will be when sufficient. or of some con- in the person fraud misconduct purchaser, or or created sale, surprise purchaser nected with is of inadequacy price other interested person, circumstances the other or less depending weight, greater id., 26 Wend., 227; 143.) the case. (13 concerned, infants are Where the property -in care protecting the most exercise vigilant courts will all who and will hold interests, their guardians of their disposing managing engaged faith not of good only, to principles adherence rigid N. duty. (49 227; every strict performance The defend Jur., 227; Barb., Story Eq. 1334.) § virtue of the will Hurtin, owned, by William ant, in one-half of the remainder vested grandfather, whole, fаrm, dependent upon and contingently *5 He was, therefore, without issue. of his brother death prior for the sold in the largest price interested premises having He had the partition which would bring. appeared they and the we must Utem, ad judgment, suit by guardian him as and was upon was binding assume legal regular, cut off his would, therefore, The sale the. adult parties. and worth, would in the farm. The was interest farm $15,000 from a fair to sale, competition, open brought upon and casé, in the conceded by It is $18,000. undisputed to 1873.] Church, per Oh. Court,
Opinion of the and the consent and with advice, his that by the plaintiff, the sale was brother, and purposely of the father assistance the were bid to competition, prevent arranged That this $3,000. the nominal sum of аt the brother off by true. intent is undoubtedly done without any was corrupt conceded, that be faith of plaintiff may good to the family, from motives friendship believing he acted as the the interests of as well other members minor, in the He end be subserved. states of the would family, title, to secure a so that the was partition good object farm raise that the mortgaged money pay might had, foreclosure, defendant who Mills, by claims estate, the owner of the father’s life and other liens become father brother, and debts made and incurred the farm and furnish amount sufficient to stock it put and that it in a state of was cultivation; represented proper and he that the father and him, believed brother could and interest, pay eventually principal a trust deed then secure the interest mortgages, land; defendant in the and that he minor undertook the busi- ness after most solicitation on the only urgent part facts, These while relieve the they may these plain- parties. do not intent,
tiff from relieve the charge wrong sale. direct
from effect trans- charge illegality. the minor was of four-fifths of his
action deprive property. nor interest he his was manner any Neither holden for or His share was the debts incumbrances. unincumbered, Mfem, and neither ad at not (who guardian present and did nor or the father brother, consent), or all had thus to sac- plaintiff, together, any power rifice and, from property, rely upon uncertain, amount of incumbrances the farm, put success visionary on, verbal carrying promise irresponsible him. The was a protect transaction parties fraud, law, which cannot infant, for a moment be tolerated It court. was the and those con- duty plaintiff, to have him him, cerned secured to the full value of his
328 v. Mills et al. per Court, Chuboh, of the Ch. J. interest. The idea of is benefiting family very persua- sive as a sentiment, but is too unreal to serve aas justifica- tion for act. I doing with the illegal agree learned judge who delivered the below, in opinion The infant saying: William Mills Hurtin has not been treated He has justly. of his substantially deprived inheritance.” The learned then with the judge reasons for proceeds the motion denying for a re-sale, that the upon ground plaintiff, pur- chaser the foreclosure mоrtgages given by after the brother, had question, to those superior rights of the defendant. In this I view cannot concur. The plain- tiff was the for both agent attorney parties procuring the loans. He acted for the as well as the mort- mortgagees He was of the gagor. facts which in cognizant law rendered the sale invalid, influentially participated producing The them. and sale to judgment the title and procure the loans and were so connected mortgages together each as to constitute dependent upon one transaction of the The were, plaintiff. part therefore, on mortgagees with his knowledge sale, defect chargeable legal no could to those he acquirе rights superior which might was their is settled well acquire. agent, that notice of facts to is constructive notice thereof agent when it is to the connected with the principal subject-matter (Story 140; agency. Agency, Griffith, § Griffith 315.) therefore, the Giving plaintiffs, benefit of Paige, that rights, without mortgagees’ assuming good faith, defect in notice loaning money upon apparent them and title, would be also protection to the plaintiff, title of the minor yet subject defendant reason of the constructive notice to them of the facts invalidated the sale. is made insisted objection strenuously the motion for re-sale is not the order denying appealable is not this court. This without Subdivision point difficulty. confers 3 of section Oode this court an order substantial made review affecting right, power *7 ' 329 al. Mills et Howell 1873.] Chüboh, Court, per Oh. J.
Opinion of the after an- action judgment. a summary application upon a and made upon That is final question, the order upon cannot be disputed, after summary judgment, It a substantial right. that it affects I think it clear equally a an order which charges that held this court has been of extra a by way sum money with the payment party made discretionary, statute allowance costs, although to review statute, under the the General Term, is appealable Y. v. N. C. a (People an order substantial right. affecting a There was difference opin R. R. 29 N. Co., Y., 418.) Four to this court. as it was ion to whether appealable to the General held that it was appealable judges that it was to this one but not Term, court; appealable that it court; Term and this one both to the General and two took no One to neither court, part. only appealable an did order expressed opinion judges and he defined such a not affect a substantial right, right “ A substantial is to which, follows: right something a or conceded claim as matter facts, may lay proved party which a court refuse, to which it law, may legally can be seen that the is entitled within well-settled rules- party of law.” The held that the order opinions affected prevailing a it a substantial because with the right charged party pay Within this an ment of definition money.
affect substantial affected seriously charged or an and in individual, either view the order property affects a substantial Its effect question right. seriously interfere with the defendant, minor and it him of a to which he is entitled deprives remedy established rules of law. authorities relied where court upon by plaintiff,
has refused to entertain from such an order, do not appeal it that it not affect substantial does put ground that it is with the ground right, discretionary 23 N. below. after (in 160), conceding Denio, that the order affected substantial said: Eeverthe right, it less, was not order from which an will lie to this YIII. Sickels—Yol. (cid:127) m. Court, per Chubch, Oh. J. rested the discretion of the
court; court to purely grant refuse it.” This and some other similar decisions, although I correct, tended, think, to somе entirely produce misap *8 this That was a case where upon question. prehension owners of of had failed to attend the equity redemption sale of the court day, below had through forgetfulness an a remark made order for re-sale. The of Judge Denio that was, therefore, such an eminently proper, in rested such discretion purely grounds and was in below, not, therefore, court this reviewable court. Y., In N. Wakeman v. Price court dismissed an (3 334), a like order for the same reason. The from appeal “ But where the relief, such have been say: proceedings regu a claimed as matter of cannot be but as a lar, right, simply favor. It matter of rest must, therefore, discretion or refuse it.” The the cоurt to court also that the grant say was settled finally the late Court for same principle Errors 16 Wend., id., 372 18 but these (in ; Correction 350); orders discretionary Wend., relating practice. an that would not lie an decided from order of 372, appeal to vacate an the Chancellor order that a refusing bill be because it rested taken confesso, discretion, and the pro Wend., 350, held that 18th where the merely granting of costs rests in the discretion of the withholding entirely Chancellor, an will not lie a from decree in appeal respect In 2 N. it Y., 269, costs. was held a such that motion an issue to be tried a is addressed chancery jury court, the discretion of the not therefore appealable. Pr., 357, 3 How. from an In ordеr of re-sale appeal was that it dismissed was but ground discretionary, the order do not In 28 N. grounds making appear. an from an order aside 122, setting mortgage to ascertain the reference interest of some of ordering dismissed. The court was say: parties, granting it such when involves no strict order, question legal is within the of the court powers below, discretionary right, not court also held that it did not come appealable.” v. Mills 1873.] Church, Court, per Oh. J. the order 11, because section
within the subdivision third certain facts to a reference ascertain not final, being court. be afterward reported re-sale, made that orders for establish only
These decisions will be reviewed discretionary, upon grounds orders, I have found no decision court; fixed matters of based upon when involve legal right, they are not appealable. principles, legal eleventh section of the the fourth subdivision
By is authorized to review this court Code, affecting which do not a substantial questions practice of discretion. There is no such involve any question pro nor there in the subdivision, in the third 349th hibition *9 from orders the General section, appeals authorizing it has been held that Term, court has always yet orders, to review N. discretionary. (29 power although are to that the Code We makers and presume supra.) in same words in different using legislature, parts meant the same in Code, thing. qualification third subdivision words substantial affecting this does not court necеssarily operate right,” prohibit from from orders discre entertaining appeals involving in the Otherwise, fourth prohibition subdivision, tion. the same words in given uniform meaning an which should, section, produce incongruity
349th
The true reason for not
avoided.
if
entertaining
possible,
I
restrictions
based,
is
apprehend,
such appeals
court,
the character of
its
Code,
an
tribunal
review
as
appellate
ques
limited jurisdiction
There
when
authorized.
specially
of law
except
tions
only,
the exercise of
in
from
refraining
is eminent propriety
it in the
if not an implied prohibition against
a jurisdiction,
court
of the court. This
has
powers
and general
Constitution
Dsmo,
to.
Ch. J.,
in the cases referred
this view
acted upon
between
of the distinction
Y.
speaking
in 29 N.
(supra),
dis
court,
this
to reviewing
respect
Term
the General
is removed to
“When the case
said:
orders,
cretionary
Chuboh,
Oh. J.
Court, per
another court whose
it is to
province
review determinations
in matters of law of the subordinate
is
the matter
tribunals,
in a different
and it
presented
seems to me that
aspect,
we cannot review the discretion of the
Court.”
Supreme
an order
affect a
Although
substantial
may
this
right,
will not
it if
review
it is matter
in the
discretion
resting
the court to refuse or
it.
grant
thinlr
is whether this is
question
such an
I
order.
not.
It was the
of the defendant
legal right
to have this
sale set
aside,
from fixed and
apparent
established rules of law. There was nothing discretionary
about it
sense of that
proper
term.
It
an
was not
favor of the
nor was it
court,
any
sense
nor did it
just
modal,
depend upon
credibility
witnesses or the
weight
evidence. The sale was
It was conducted
irregular.
law. The court
contrary
held that
had a
mortgagees
because
superior equity,
had loaned
they
This,
title.
we
money upon
apparent
If the
seen,
error.
motion had been denied
because the defendant had some other
ample remedy,
decision would not have been reviewable.
two
Having
it would have been
remedies,
to turn him over
discretionary
It is not claimed that
to either.
he has
remedy,
*10
was not
that
decision
The late
put upon
ground.
“
the Correction
had
reverse,
Court for
of Errors
to
power
”
affirm or alter
order
but it was
any
brought up
appeal,
the settled rule of that court not to review orders
in
resting
the discretion of the
court. The
subordinate
of
question
what should be deemed
orders was considered
discretionary
that court in
an
v. Cook
Tripp
(
Opinion of He maintainеd rules.” fixed principles by any governed of not consider questions that the appellate and refers discretion, of nor those legitimate judicial practice, held that the but he discretion; to various instances of such has been sacri- where relief, of and rules principles had misconduct, fraud or at sales ficed through judicial had fixed and become courts, settled and established to disre- no court was at liberty which equity principles is to draw of the easy From the nature question gard. a of discretion line what is exercise legitimate between in this case, a is it error, is reviewable nor necessary, what A collusive arrangement pre- refine on subject. in at and a sale
vent a pursuance competition judicial sale, an a especially party, arrangement, injury a fraud law as well established as infant, is prin- and that subsequent ciple equity mortgagees jurisprudence, a can no fraud, purchasers, knowledge gain and these therefrom, settled, well equally ques- advantage order, an are as much when involved entitled to tions, ifas presented review upon exceptions. Y., N. court,
This entertained 155, all order, reversed like this was the cases subsequent in which orders were held and, discretionary, counsel able although experienced engaged, not raised. was McCotter question jurisdiction Jay N. to set aside (30 80) was action mortgage want time and of sale, but no place knowledge fraud J., оpinion shown. delivering Hogeboom, the distinction between orders court, recognized are not He he shows no said, fraud, discretionary. ask to set aside the sale as a cannot, therefore, matter of that his held was motion addressed to right,” remedy the favor and discretion of the court. The infancy *11 and the fact that no defendant, superior legal rights an to the are answer as to intervened, delay objection the motion. Both making upon principle authority, to minor defendant is entitled but such relief, equities Howell et al. Court, per Allen, as can be plaintiff preserved his consistently rights , should be protected. The as to the order, William Mills defendant, Hurtin, reversed. must be J. So much of the order of the court at Special
Allen, affirmed at Term, General as Term, assumes to limit to action for relief is rights parties bring clearly erroneous.
A refusal to relief upon grant summary application is under not, special except very circumstances, which do case, not exist a final of the merits of adjudication and a bar to an action for relief. It will bar controversy another unless leave is summary application given renew, but will not- affect The order any remedy. appealed from clear if not does, by implication determine directly, measure, in a great form parties which if it did not embarrass, determine, merits extent of the lien and incumbrance of the alleged plaintiff. from appellants prohibited bringing any action, tender or of the whole amount except claimed payment A tender admits the claim to the amount plaintiff. tendered, the tenderee at time it, and may any accept must the tenderor keep good during prosecution any action it. If the is based tender it cannot be accepted reclaimed. and absolute. It payment voluntary follows that in no case could the defendants or either of under this claim the them, contest the order, lien and incumbrance the whole alleged the fall and to amount. the order limits the time within action
Again, that as the may brought sixty days, prescribing time within which the tender or must be made. payment If cause of action whether tender was equitable existed, or was it, entitle the necessary parties prosecute statute of limitations and the established rules of law would control,the time, could not arbi- *12 Mills et al. 18Í3.] Allen, of the Court, per
Opinion, the This rules for case. establish other trarily particular must reversed. branch of n aside the adult to set defendant, Mills, of application same, and for re-sale of sale of the premises as should be was addressed or relief just, other order its of original discretion jurisdiction, for here. There was reason is not reviewable good action if in, in He his behalf. acquiesced refusing application at assent for sale, did not to, price he directly dis- were .which sold, subsequent reason, He has no position very proceeds. appаrent before of the actors us, papers complain any in acts of the transaction, completed parties, in is in him action no over to his there turning injustice He such relief as he such form for shall be advised. Alfred the value of his estate the life of
accepted if D. Hurtin circum- there premises, and, any him to must relief, stances be established they entitling action. The order his refusing application having made been in the exercise of discretion resting legal below, the court no absolute right having legal violated, his as his from so much the order refuses appeal succeed, should be dismissed. As both application parties neither the nor should Mills, part, respondent, appellant, recеive costs of the other. appeal against Hurtin, defendant, infant William and was not He did not assent presents questions. he proceedings by
capable assenting in the his estate reversionary has been deprived effectually to stand. and sale are allowed if the proceedings premises, this cir- had them; he no So far as appears, knowledge reason of incompetency no significance by cumstance of and could ad waived no act. His Utem guardian take infant. He did not any part waive no rights and was prevent the sale of the powerless premises, sold. at low which they at the fraudulently price court, have been by His only remedy *13 Mills et Howell al. Allen, of the J. Opinion per Court, аnd he lulled to inaction was the belief induced the by by and circumstances the statements of the that the of the infant to the undivided of right moiety premises cared for and But if he was unfaithful fully protected. to his trust or colluded with to others the ward the of wrong court, his acts and omissions not would conclude or bind his estate, entire the life and principal. estate, the estate the of reversions for what must be gross, regarded aas mere nominal under sum, the circumstances, and followed the the of as.an by to incumbering premises entirety, nearly the full value, the was a by purchaser, to the gross wrong infant. If the and condition of the age unprotected infant, and the unthrift and of his improvidence and those parents to who were the incumbrances, protect property against be taken into consideration, the mortgages put upon by W. premises Hurtin, under purchaser, George direction and advice án plaintiff, equivalent absolute sale of the divested all claim property infant, him sum for the one- leaving pitiful $1,045 only half of deemed for good security by moneylenders $9,500, worth Had $13,000. over faith actually good observed, been the undivided half would have trust for conveyed, infant, promised, would have to the purchaser paid treasurer nothing county for and for loans he make would infant, any might only his one-half. It own is not disputed by mortgaged any one this that in connected controversy equity good and of conscience one-half prоperty, subject A. D. life estate created charge only H., by that life estate, the infant extinguishment belonged defendant; under scheme concocted carried out yet, and under direction thfe by present plaintiff it was incumbered benefit of respondent, an amount and a form that would lead others necessarily loss to infant of entire to total estate. pretence the infant, averse life of a arrangement be enabled to obtain an education and farmer, enter one v. Mills 18Í3.] Allen, per Court,
of the learned foundation. professions entirely without There are infants can estates of processes their maintenance and and the law applied education, will tolerate resort to tortuous measures of doubtful pro- infants, and of hazard to the interest of the as a priety, great substitute for the authorized which the interests procedure *14 of the infant are well and cared for. Whatever protected have been the and might rights original equities as the infant claimant of a of the mortgagees, against moiety as premises, their successor mortgaged present plaintiff, and interest of the purchaser mortgaged a of the foreclosure has no as mortgages, equities against claimant. who swears were his mortgagees, clients, advice, were, under his and
acting evidence under within the the-circumstances, rule which holds the principal to the and consequences effeсt notice to and legal know- or of facts if ledge attorney agent which, known to would affect his principal, or create equities of third favor If this persons. were not so, the plaintiff a As an occupies peculiar position. and attorney counselor and of the court adviser parties interested the pro- he advised and consummated the perty, originated, sale and which he has incumbering the-property, by enabled to been to- if himself, appropriate- to proceedings permitted of this infant. free stand, However from all property actual intent to- the infant the injure wrong plaintiff may have of the been, position legal rights parties and understood to and that it him, known was a grоss of the infant’s and an inter- infringement rights, improper with his it at ference hazard property, putting great advised, it as could deal he have-been known to he he have him, may, better although says, hoped that he has results, now title to the acquired devious he under must be held very proceedings, to have. to all the of the equities
taken real owner. subject is not the same There objection entertaining appeal 43, Siokels—Vol., VIII. Mills et al. Court, per Allen, of the infant that of the other defendant. prevails
The infant is the and entitled ward, protection court as well as in" a summary application formal relief action. The once established, is not right within the discretion of the court absolutely summary reject and remit infant to his action. adverse doubtless, may, staying proceedings protecting subject-matter controversy pending litiga- an action direct to be when a formal trial tion, brought of fact should any disputed questions necessary But the in this court, case, have denied desirable. absolutely all so restricted and limited his relief, the infant as in him an action effect to of that deprive right, bring than him in worse he would with- position place the court. There are no the intervention of disputed out fact which of the claimant, go equities questions relief as a matter of entitled to The sale of he is right. *15 and the fraudulent, the premises proceed- his moiety The sale should set aside have oppressive. ings If not be ordered. the should be a re-sale should property the sale should be institu- reason, for any proceedings sold real estate the statutes for sale of the of infants. under the ted should be at take and other The parties liberty assert and enforce have any equities they may steps the the residue of as to money deposited There are no claims, treasurer. or with the legal county before us the infant disclosed by papers against equitable, the estate. For borrowed he is money his share of or his estate he The nor can liable, charged. plaintiff, not succeeded, whose title he made has the mortgagees the infant or his the benefit of estate. to or for no advances down and life estate, paid by taxes are to be kept The can be made him Ko claim the reversion. against and not by of the life estate the owner can for taxes his estate paid; them. to pay be compelled fór a partition assumed proceedings
I have and valid. to hold necessary It'is not. statute, authorized by Society. 1873.] Life Ins. Mabtine v. International of casé. Statement come will up question
otherwise upon appeal. for I dismiss- am, therefore, from the judgment. appeal from so much Edwin defendant, Hills, ing for a denies his re-sale pre- of the order as to with- him, residue of mises, reversing him and the as between respondent, out to either costs party William as to whole order appellant, revеrsing the motion to set aside Hurtin, granting half under the undivided equal judgment under re-sale the same prohibiting partition, with costs respondent. judgment, against Pegkham J., Ch. Church, Allen, Rapallo, JJ., concur.
Grover, dissents. J., do JJ., Andrews,
Foloer vote. Ordered accordance Allen, opinion Randolph B. Martine, International Appellant, Society
Life of London et al., Insurance Respondents. appointed agency, agency to an a firm ceases Where firm, principal death of one members is not bound subsequent surviving acts of a member. corporation foreign sought and has obtained the privilege Where regulations under carrying on its business here fixed the statutes of *16 permanent general State, agency, and has established this conducts оrganization in here as a distinct manner as its same business domestic corporation transacted corporations; as to business here the is to be subject obligations to the same regarded as domiciled and and liabilities institutions. as domestic held, company foreign Accordingly, complied life insurance had where provisions authorizing carry of the statutes it business in opened York, State, and had an office Hew where conducted directors, general agents and a local issuing its board business policies organization, policy as a here distinct where had been prior the rebellion war of to a citizen of one the late issued thus premiums States, payment of the that thereon was excused Confederate suspended during war, liability where the insured