COURT OF APPEALS.

#### Jesse M. Emerson, successor of Robert Grant, deceased, assignee of William Montgomery, respondent, agt. William Bleakley, Jr., sheriff, &c., appellant.

Where the cause of action survives by virtue of the statute, section 121 of the Code saves the action from *abatement,*on the death of a party.

Where personal property is held *in trust,*on the death of the trustee, it passes, under the common law, to his personal representatives, who are bound to execute the trust.

The Revised Statutes relative to uses and trusts, does not relate to *personal property**but the common law rule still exists, and applies in reference to such property.

Where, on the death of a plaintiff in an action, who sues as trustee, the court appoint a person in place of the deceased, to execute the trust, upon the express consent and stipulation of the defendant, the lattercanuot oil motion, at the trial, have the complaint dismissed, on the ground that the title to the property was itt the personal representatives of the deceased.

*June Term,*1867.

On or about the 17th day of December, 1859, one Alfred Booth obtained a judgment in the Supreme Court, Westchester county, against William Montgomery, and William Gara brant for $2,268 38 on two promissory notes made by said *11*Montgomery & Co.”

On the 20th day of December, 1859, the said Booth caused an *execution on*said judgment to be issued against the property of said Montgomery and Garabrant, to the defendant in this sit it, William Bleakley, Jr., who was at that time sheriff of Westchester county.

On the 20th day of October, 1857, a stock company was organized by William Montgomery and four others, by the title of the *“*New York Steam Saw-Mill and Machine Company.”

*512On the 21st day of October, 1857, one day after the date of the certificate of incorporation of said company, William Montgomery and George D. Lund (who had become a partner of Montgomery in the place of Garabrant) for the consideration of $100,000, made a bill of sale of ‘‘all the materials, good will and appurtenances of whataver kiud or nature appertaining and belonging to the manufacturing and machine business heretofore conducted under the name of William Montgomery & Co., in the town of Yonkers, Westchester county, N» Y., together with the full right to the immediate occupancy of the premises in which said property was contained in Yonkers,” &c., &c., to the said Mew York Steam Saw Mill and Machine Company.

On the same day (October 21st, 1857), said Montgomery and Lund executed another bill of sale to said Steam.Saw Mill .and Machine Company, for consideration of $15,000, “ of all the steam saw mills, steam engines, boilers, machinery, and stock of all kinds, manufacturing or in process of manufacturing, appertaining to and belonging to the engine and machine manufacturing department of the business heretofore conducted under the name of Messrs. Montgomery *&*Co., together with all the belongings thereto,” &c.

Montgomery became the president of this machine company on its organization, and always continued such president, and had the management and direction of its business.

Montgomery & Co. had a lease of the factory premises for five'years from May 1st, 1855, which passed to the machine company under the bill of sale first above mentioned.

On the 23d day of December, 1858, an agreement was entered into between Montgomery and certain others of the stockholders of the said machine company, by which said Montgomery was to become possessed of their stock on certain conditions, which, it is claimed, were never performed by Montgomery.

Montgomery, the 29th day of November, 1S59, executed *513a general assignment for the benefit of his individual creditors, to Robert Grant, of “all the estate and property, real and personal, of him, the said William Montgomery, either individually, oras a member of the late firm of Montgomery & Co., or a corporator or stockholder of the New York Steam Saw Mill and Machine Company.”

Under this assignment Grant claimed title to the property in question. And as the defendant as sheriff had in the first instaince levied upon said property under the said execution of Booth against Montgomery and Garabrant, this action of replevin was brought by Grant.

On the first trial the jury found that the stock and materials belonged to Robert Grant, valuing the same at $13, 233 81; and that the tools and fixtures belonged to the steam saw mill and machine company, valuing the same at $13,188 ,• and judgment has been ordered in conformity with such findings, and has been affirmed by the general term of the second district. Robert Grant died September 28th, 1S61.

R. W. Van Pelt *for the appellant.*

W. R. Stafford *for the respondent.*

Parker, J.

I think there was no abatement of the action by the death of Grant, the original plaintiff. The cause of action survived by virtue of the statute (2 *R. S.,*447, § 1, *1st ed.; Webbers’ Exrs.*agt. Underhill, 19 *Wend.,*449) ; and this being so section 121 of the Code, saves the action from abatement.

Although Grant held the property in question as a trustee, on his death it passed under the common law to his personal representatives, who were bound to execute the trust *(De Peyster*agt. *Ferrers,*11 *Paige,*13). We held, in the case of *Baum’s Ex.*agt. *Vaughn,*decided at the last term of this court, that, section 68 of the article of the Revised Statutes, realative to uses and trusts (1 *R. S.,*730, 1st *ed.)**514does not relate to personal property, and that the common: law rule above referred to still exists, and applies in reference to such property.

• The consequence is, that on the death of Grant the title to the property passed to his legal representatives, who, unless they had transferred it to Emerson, should have .beetv substituted. But the appointment by the court of Emerson to execute the trusts of the assignment, and his'substitution as plaintiff in the action, having both been made by the express ’consent and stipulation of the defendant, set forth in the; case, I am inclined to think, his motion for dismissal of the. complaint, upon the trial, on the ground, that the title to the property was in the personal representatives of Grant,: was properly denied. *Non constat,*that the cause of action': ■had not passed, by assignment, from the personal rep-resentafives of Grant *to*Emerson. In that case, he was the proper person to be substituted, and, I think, as against ■’■'the defendant underahis stipulations, such assignment should: be presumed. .:

’• The question of the grounds on which the nonsuit was "■claimed, to wit, that Grant was not the owner of the property when the suit was brought, and that it was .incom"petent for Montgomery to make any. transfer to himself, ’were also properly regarded as not well taken, the first .as involving a-question of fact for the jury, and the other .as - not covering the whole of the plaintiff’s claim. . ;

The objection to the introduction of Grant’s testimony-.on • the former trial was properly overruled. It was but the common case of reproducing the testimony, of a deceased • witness. I see nothing in the objection that he was a party. " He was also a witness, and, therefore, within the rule allow-. ■' ipg proof of what he testified to be given. , .

’"■‘•'The inquiry of the witness, Montgomery, whether', he "received any directions from Grant in regard, to the property, immediately after the delivery of the assignment, was - relevant and proper as part of the *res gestee.*. ,-.-r-,

! The question to the same -witness, as to what was.dqne *515with moneys which, he had stated, were realized from a portion of the assigned property, was also properly allowed.

1 see no error in the rulings in regard to the questions put to the witness, Lund, as to his delivery, when he left, of the stock, &c., at the machine shop, to Montgomery, and as to his ever again exercising any acts of ownership over the property. This was clearly pertinent to the question • which was litigated, whether Montgomery owned the prop- ; erty or any part of it.

The offer of the defendant to prove, that the sheriff of - Westchester, levied upon the property in question as the -property of the Steam Saw-Mill and Machine Company, . after this suit was brought, was wholly irrelevant and im- • material, and was properly excluded.

The court was requested to charge, ‘‘that if the sheriff *•*(defendant) was found in the actual possession of the prop-' ■ erty levied on under the Booth execution, the plaintiff must prove a demand of said property, and refusal to surrender it before he can recover,” which was refused.

If the property belonged to the plaintiff, the taking it out of the possession of Montgomery, who was the plaintiff’s "agent, using it in the plaintiff’s business, in hostility to the" plaintiff’s right to it, was a wrongful taking as against the • •plaintiff; *(Clark*agt.. *Skinner,*20 *J. R.,*465), and no demand was necessary; *(Cummings*agt. *Vorce, 3 Hill.,*282 ; *Dunham*agt. *Wyckhoff, 3 Wend.,*280). The request was, therefore, properly refused.

As to the defendant’s request, to charge that Montgomery, ■ while acting.as president of the machine company, could not become the purchaser of its property, if objected to by any stockholders or creditors of the company, there was nothing in the evidence calling for such instruction to the jury, nor for anything more on that subject than the court had already said to them; for they had been already" instructed that, as to all that portion of the property in *n*question, which had been transferred to the machine company, and which had been acquired by said company, the *516title to it remained in the company, at the time of the assignment, and did not pass to Grant, and that Montgomery’s interest in such property, at the time of the assignment, was a stockholder’s interest only, and that only such interest passed by the assignment, so that the additional instruction requested was entirely uncalled for.

Tlie complaint now made by the plaintiff’s counsel, that, under the charge of the court, it was the duty of the jury to render a verdict for the defendant, as to all the property in question, and that the court below should, on that ground, have set aside the verdict, is not one which this court' can listen to or consider. The case is not open to us for an examination of the facts.

The finding by the jury that Grant was the owner of that portion of the property in question, described as *stock and-*material, and not of that described as *tools and factures,*rendered necessary a more specific description of the two classes. This the- court ordered to be made by directing the complaint to be amended, so as to conform to the evidence, and to designate the portion of the property found for the -plaintiff described as stock and material, and the portion found for the defendant described as tools and fixtures, to which the counsel for the defendant excepted,. And thereupon, the plaintiff did amend the complaint by inserting at the end of the list of articles a list of those which he denominated *tools*and *fixtures,*and stated that the residue of said property'was known as stock and material. No fault was found with- the manner in which the distributing was made, and the amendment carried out.

„ I think it was competent for the court to amend the verdict, as was in effect done for the purpose, not of adding or subtracting, but of specifying in accordance with the evidence, as was done in this case. *(Sleght*agt. Hartshorne *1. J. R.,*149; 1 *Sel. Pr.,*480; *Archbold, Pr.vol.*1, 215, *vol.*2, 275).

v,! ,„Upon the whole case, I am of the opinion, that the j udg fn’ent should be affirmed. Affirmed,