
    John Garvey, Resp’t, v. Margaret Owens et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 13, 1887.)
    
    1. Substitution op party succeeding to interest— Supplemental complaint UNNECESSARY—CODE ClYIL Pro., § 757.
    In an action to compel the performance of an agreement to convey real property, the original plaintiff died and his heir succeeded to his interest in the real property in suit. It was objected by the counsel for the defendants that the trial should not proceed, because that under Code Civil Procedure, § 544, it was essential before the action should, be brought to trial that the plaintiff should have obtained leave to serve and have served, a supplemental complaint alleging the material facts which had occurred since the action was at issue, in regard to the death of the former plaintiff, and the facts under.which the substituted plaintiff claimed a'right in his place. Held that the objection was not well taken; that'the order substi- ■ tuting the party succeeding to the rights oí the former plaintiff as such was made under Code Civil. Procedure,- § 757, providing that in case of the death of a sole plaintiff or a sole defendant, if the cause of action survives or continues, the court must upon a motion allow or compel the action to he continued by or against his successor in interest.
    2. Same—Evidence—Materiality op
    
      Held, that questions tending to show the reason of the substitution and that the interest of the former plaintiff had devolved by operation of law upon the present plaintiff were properly allowed.
    3. Evidence—Proop op signature op subscribing witness—Laws 1883, chap. 195.
    
      Held, that under Laws 1883. chapter 195, it was not necessary to call the subscribing witness toan agreement, and that proof of the genuineness of the signatures could properly he made by other parties.
    4. Declaration op trust—Need not be sealed—Laws 1860, chap. 322.
    
      Held, that under Laws 1860, chapter 322, a seal was not necessary to be affixed to an instrument in writing declaring a trust, that it might he effectual
    Appeal from a judgment at the special term, declaring that John Garvey is now the legal owner of the premises described in the complaint, and that upon said John Garvey paying to the guardian of the property and estate of the said Joseph Garvey, the infant defendant, the sum of $3,500, mentioned in a certain agreement dated December 15, 1869, that said infant, Joseph Garvey, by Adolph L. Sanger, Esq., duly appointed special guardian for said in-, fant, convey the said premises to said John Garvey. It was further adjudged that the complaint be dismissed as to the defendant John Owens without costs, and that no costs should be allowed to any party in the action.
    The premises described in the judgment were conveyed to James Garvey, the father of the infant defendant, Joseph Garvey, by James B. Wilson, the special guardian of Mary Jane .Whittock and others, on the 20th of March, 1860. By-deed dated August 9, 1862, James Garvey conveyed said premises to Michael Morrison. On February 1, 1867, Michael Morrison reconveyed said premises to James Garvey. On May 1, 1866, while the apparent title to said premises was in Michael Morrison, John Garvey let and rented the said premises to James Garvey and James Garvey hired and took the same of said John Garvey, at a yearly rent of $600, payable in advance. On December 14, 1869, James Garvey, for the consideration of one dollar, bargained, released and sold to John Garvey the premises in question, and on the 15th day of December, 1869, an agreement was entered into between John Garvey of the first part, and James Garvey, of the second part, for the consideration of one dollar, in and by which said John Garvey released and conveyed the property in question to James. The agreement contained the following clause: “And it is hereby further agreed by and between the said parties that the party of the second part shall and will collect all rents from said described premises, and defray all necessary repairs, taxes and insurance that may accrue out of the said rents. Now this agreement witnesseth expressly, that said party of the second part shall and will grant, release and convey forever to Joseph James Garvey of Tompkins-ville, Richmond county, and the state of New York, a son of the aforesaid John Garvey, for the sum of one dollar, all the above described lot of land, with the building erected thereon, and also all sums of money that may have been .collected for rents or otherwise from the same, after deducting the sum of $3,500, without interest thereon, and also the expenses defrayed for all repairs, taxes and insurance from the day and year first above written until the time when the said Joseph James Garvey shall become at the age of twenty-one years, which will be on the 28th day of October in the year 1881.” James Garvey died on the 13th of October, 1877, and subsequently his widow Margaret married the defendant, John Owens, James Garvey left him surviving the defendant, Joseph Garvey, his only child and heir-at-law, and the defendant, Margaret Owens, his widow, as above stated. Joseph James Garvey, the son of John Garvey mentioned in the agreement of December .15, 1869, became of age on the 28th day of October, 1881, whereupon he brought this action to have it adjudged and decreed that the trust created by the agreement of December 15, 1869, was a valid trust for his benefit, -and that thereby he became seized in fee of said premises, and upon his arriving of age was entitled to .the possession of the said premises or to a conveyance thereof from the defendant, Joseph Garvey, an infant, free from all dower right of the defendant, Margaret Owens, and asking that a guardian may be appointed for said infant defendant to execute such conveyance. He further prayed that an account might be taken of the rents and profits of said premises, from the 15th of December, 1869, to the time of the death of said James Garvey, and that after deducting said taxes, insurance and repairs, and the sum of $3,500 without interest, and adding interest to said balances so found due to the plaintiff he might have judgment therefor against said Margaret Owens and John Owens, etc.
    On the 7th of January, 1886, Joseph James Garvey, the original plaintiff, died, and by an' order of tbis court, dated March 4, 1886, John Garvey, his father, as sole heir at law of the plaintiff, was substituted in his place and stead, and the suit was directed to be continued as heretofore.
    
      The learned justice before whom the cause was tried at special term, found as conclusions of law that said John Garvey is now the legal owner of said premises, and that upon said John Garvey paying to the guardian of the property and estate of the said Joseph Garvey, the infant defendant, the sum of $3,500, mentioned in said agreement, that said infant, Joseph Garvey, by Adolph L. Sanger, who is appointed the special guardian for said infant, convey the said premises to said John Garvey, and that the complaint be dismissed as to the defendant, John Owens.
    
      George H. Foster, for app’lt, Owens; R. E. Robinson guardian ad litem for the infant defendant, Joseph Garvey, app’lt; George Q. Genet for the resp’t.
   Lawrence, J.

Upon the trial various exceptions were taken to the rulings of the court. The counsel for the defendants objected, in the first place, to the trial proceeding on the ground that by section 544 of the Code of Civil Procedure it was essential before the action could be brought to trial that the plaintiff should have obtained leave to serve, and have served, a supplemental complaint alleging the material facts which have occurred since the action was at issue in regard to the death of the former plaintiff, and the facts under which the substituted plaintiff claims a right in his place. We are of the opinion that this exception was not well taken.

The order by which the present plaintiff was substituted for the former plaintiff was made not made not under section 544 of the Code nor under section 724 of the Code. It was made under section 757, which provides that: “In case of the death of a sole plaintiff, or a sole defendant, if the cause of action survives or continues, the court must upon a motion allow or compel the action to be continued by or against his representative or successor in interest.” Under that section there was no necessity for serving a supplemental or an amended complaint. For the same reason the objection to the order of substitution was properly overruled.

The sister of Joseph J. Garvey, the original plaintiff, was called as a witness, and was asked: “What time did he die?” This was objected to by the defendants, on the ground that the matter was not in issue. The question was per-' fectly proper to show the reason for the substitution, and that the interest of the former plaintiff had devolved by operation of law upon the present plaintiff.

The witness was also asked, “What family, if any, did he leave ? It was objected to, and the objection was overruled, and the remarks which have been made in regard to the previous exception apply to this.

The objections to the introduction in evidence of the deed from James Garvey to Michael Morrison, and to the deed from Morrison to James Garvey, were also properly overruled. It was necessary to have those deeds before the court for a proper understanding of the cause.

The objection taken by the plaintiff to the question put to the witness Malcolm in regard to the transactions between him and James Garvey were properly sustained, because they did not tend to throw any light upon the relations which James and John Garvey bore towards each other, in respect to the property which is the subject of this litigation.

Exhibits 9 and 10 were not improperly rejected, because there is nothing on the record to show by whom they were made out, nor that James Garvey ever saw them, or had any opportunity of ascertaining whether they were correct or incorrect, and surely they were not competent to contradict the papers which long before had been executed between James and John, and which, so far as the evidence shows, were never canceled or revoked.

The objections to the agreement of the 15th of December, 1869, and to the deed of the 14th of December, 1869, and to the landlord and tenant agreement of May 1, 1886, are equally untenable. Each and all of them related to the property in suit, and tended most strongly to show who was the owner thereof. Under chapter 195, Laws 1883, it was not necessary to call the subscribing witness to the agreement, and proof of the genuineness of the signatures could properly be made by other parties.

So far as the objections taken by the defendants relate to the seals, it. would appear from the evidence of Genet, that the papers were properly sealed, and so far as they relate to the validity of the agreement by which the alleged trust was created, it would appear that a seal is not necessary for the purpose of creating the trust in question. See Laws 1860, chap. 322, p. 547.

The motion to dismiss the complaint against the defendants Margaret Owens and Joseph Garvey was properly denied, the plaintiff having at that time established a jprima facie right to the property, and those defendants each claiming to have, and having an apparent interest therein.

We do not regard the refusal of the learned justice to receive in evidence the letters of administration upon the estate of James Garvey as erroneous, as all the parties who were ultimately interested in his estate were before the court.

The objections at folio 86 of the case to the questions put to the witness Von Lecucen, in regard to the offer of James Garvey to sell the property were properly overruled, . because of immateriality.

We have looked at the other objections and exceptions-to the rulings of the court upon questions of evidence, and do not regard any of them as weU taken.

Upon the whole case we think that the evidence supports-the findings of fact and conclusions of law, which were made at special term, and that the exceptions to those findings, and to the refusals of the court to find, cannot, therefore be sustained.

The judgment must be affirmed, with costs.

Bartlett, J., concurs.  