THIRD DEPARTMENT, NOVEMBER, 1904. [Vol. 99. CASSIUS A. PHILLIPS, as Executor and Trustee under the Will of ADDISON D. BLAIR, Deceased, Respondent, v. ELIZABETH OWEN, Appellant, Impleaded with Others. Notice the occupation of a house by a mother and son, the record title to which is in the son, is not notice to one taking a mortgage thereon from the son of an unrecorded life lease given by the son to the mother. In an action brought to foreclose a mortgage it appeared that the mortgaged premises consisted of about five-eighths of an acre of land having four dwellings thereon; that three of the dwellings were used as tenements; that the fourth dwelling was occupied by the mortgagor, a man twenty-eight years of age, who held the record title to the premises, and his widowed mother; that the mortgagor was his mother's only son and was unmarried and that he and his mother had resided together, constituting one family, since his boyhood; that prior to the execution of the mortgage the son had executed to the mother a life lease of the premises, which lease was not recorded until some years subsequent to the recording of the mortgage. Held, that the possession of the mother was equivocal, and was entirely consistent with the apparent ownership and the possession of the son, and was, therefore, not sufficient to put a prudent man upon inquiry as to any other or further rights that the mother might have in the premises; That, consequently, the lien of the mortgage was superior to the mother's rights under the lease. APPEAL by the defendant, Elizabeth Owen, from a judgment of the County Court of Chemung county in favor of the plaintiff, entered in the office of the clerk of the county of Chemung on the 12th day of March, 1904, upon the decision of the court, rendered after a trial before the court without a jury, directing the foreclosure and sale of the premises described in the complaint. Warren J. Cheney, for the appellant. E. J. Baldwin, for the respondent. PARKER, P. J.: The appellant, Mrs. Owen, claims that the life lease which she took from her son, David H. Allen, prior to the time he executed the mortgage which the plaintiff is now seeking to foreclose, is superior to such mortgage, although such life lease was not recorded until some years after the record of the mortgage. And she bases such claim upon the allegation that she then held, and has since con App. Div.] THIRD DEPARTMENT, NOVEMBER, 1904. tinued to hold, such a possession of the mortgaged premises as was equivalent to notice of her rights under such lease. For the purposes of this appeal it may be conceded that the lease was fully executed and delivered to her at the time and in the manner claimed by her, but I am of the opinion that the possession which she is proved to have had was not sufficient to give the notice she claims for it. The mortgaged premises consisted of about five-eighths of an acre of land, with four houses upon it. In one of them the appellant and her son David resided together, and had so resided for many years. The son was a man in business, about twenty-eight years age, and had title to such lands, holding them by a conveyance duly recorded from Samuel Minier and wife and John R. Minier and wife. The other three dwellings on the premises were used as tenement houses. Whether any of them were occupied by tenants at the time the mortgage was given does not appear. of The appellant had been a widow for many years, and she and the said David H. Allen, who was her only son and unmarried, had resided together, constituting one family, from his boyhood. This situation and the foregoing facts were, we may assume, apparent to the mortgagee when she loaned her money to the son David. There were no other facts then apparent that tended to characterize the possession of either the son or of the mother. Both resided on the premises; the record showed the son to be the owner of them, and, therefore, he might be assumed to be legally in possession of them. (Mygatt v. Coe, 147 N. Y. 456.) And the natural inference therefrom was that the mother was living with her son and as a mere member of his family. Her possession was, therefore, an "equivocal" one. It was entirely consistent with the apparent ownership and possession of the son, and, therefore, not sufficient to put a prudent man upon inquiry as to any other or further rights that the mother might have therein. (Brown v. Volkening, 64 N. Y. 76, 82, 83; Pope v. Allen, 90 id. 298; Holland v. Brown, 140 id. 344, 348; Staples v. Fenton, 5 Hun, 172.) I conclude, therefore, that the judgment of the court below is correct and should be affirmed. All concurred. Judgment unanimously affirmed, with costs. THIRD DEPARTMENT, NOVEMBER, 1904. [Vol. 99. In the Matter of the Examination of the FIRST NATIONAL BANK OF EARLVILLE in Proceedings Supplementary to Execution upon the Application of GILBERT L. ELLIS, Judgment Creditor, Respondent, under a Judgment Recovered in an Action Entitled: Supreme Court, County of Madison, N. Y. GILBERT L. ELLIS v. ADELBERT RUGG and MARY RUGG. ADELBERT RUGG and MARY RUGG, Judgment Debtors, Appellants. Supplementary proceedings — examination of a third party – an affidavit on information and belief which does not state the sources thereof is insufficient-right of the judgment debtors, when enjoined, to move to vacate the order. An affidavit, used on a motion for the examination of a third party in proceedings supplementary to execution, alleged upon information and belief, without stating the sources of the affiant's information nor the grounds of his belief, that the third party, a bank, had in its possession personal property of the judgment debtors exceeding ten dollars in value. Such affidavit stated that the cashier of the bank, who had charge of its business, made statements to the affiant from which he believed that the bank had such property, but the affidavit did not disclose what the cashier said to the affiant. Held, that the affidavit was insufficient to sustain the order; That the judgment debtors were entitled to attack the order, particularly as such order enjoined the bank from paying over or delivering their property to the judgment debtors, and enjoined the judgment debtors from interfering with such property. APPEAL by Adelbert Rugg and another, judgment debtors, from an order of the county judge of Chenango county, entered in the office of the clerk of the county of Chenango on the 14th day of March, 1904, denying the said judgment debtors' motion to vacate an order made by said county judge on the 1st day of March, 1904, to examine the First National Bank of Earlville by its cashier and to vacate the injunction order therein contained. The judgment creditor, Ellis, recovered judgment against Adelbert and Mary Rugg on October 24, 1898, for $838.75 debt, and $18.05 costs. A transcript thereof was duly filed and docketed in Chenango county November 14, 1898, and execution issued the same day. On November 23, 1903, on the application of Ellis, an order was granted in supplementary proceedings against such debtors, by the county judge of that county, to examine the First National App. Div.] Bank of Earlville as a person having property belonging to such debtors, under section 2441 of the Code of Civil Procedure. A motion was subsequently made before such judge to vacate that order, and a decision made by him to vacate it, but before it was entered, and on March 1, 1904, such judge made a second order requiring the bank to appear on March fifth before a referee therein named, and through its cashier, Guy H. Clark, be examined under oath concerning any debt or property, etc., it held belonging to said. debtors, as provided by said section 2441. Such order also enjoins the bank and the said debtors from disposing of, or in any manner interfering with, the property or debt concerning which the bank was required to be examined "until further direction in the premises." On March 5, 1904, such county judge, on the application of said judgment debtors, granted an order that said Ellis show cause before him at chambers on March seventh why such order of March first should not be dismissed on several grounds therein stated. On March fourteenth an order was made by such county judge denying the motion to vacate the order of March first, and amending the same by adding to it language making it clear that the injunction in such order was not intended to affect any property other than that on deposit, or in its control, to the credit of the said debtors, or either of them, or in which they, or either of them, have an interest. From the order of March fourteenth, so refusing to vacate the order of March first, this appeal is taken. George P. Pudney, for the appellants. C. A. Hitchcock and Dayton F. Smith, for the respondent. PARKER, P. J.: One of the grounds upon which the judgment debtors applied to the county judge to vacate the order of March first was that he had no jurisdiction to make it, because of the insufficiency of the affidavit upon which it was granted. It was granted upon the affidavit of E. W. Cushman, made February 24, 1904, and his statement therein that the bank had personal property of the judgment debtors exceeding ten dollars in value is made entirely upon information and belief, and does not state the "sources of his information and THIRD DEPARTMENT, NOVEMBER, 1904. [Vol. 99. the grounds of his belief." Substantially it states no more than that the cashier of such bank, who had charge of its business, made statements to him from which he believes that the bank had such property. What the cashier said to him is not disclosed. Not a single fact is stated which would tend, if true, to convince the judge that the bank had any such property-merely that from what the cashier said to him the affiant thinks it had. This was not 66 competent written evidence" which should satisfy a judge, and hence the applicant was not entitled to the order. "The opinion of the affiant is not a fact upon which the judge's conclusion may be based.” (Duparquet v. Fairchild, 49 Hun, 471, 472; First National Bank v. Wallace, 4 App. Div. 382, 384; Matter of Parrish, 28 id. 22; Delafield v. Armsby Co., 62 id. 262; Citizens' National Bank of Towanda v. Shaw, 46 Hun, 589.) And particularly should such an affidavit be held insufficient to sustain an injunction against the disposal of one's property. It is claimed that the judgment debtors have no standing in court to oppose the order in question. But the order enjoins the bank from paying over or delivering to them their property, and it even enjoins them from interfering with such property. For that reason they have the right to challenge the sufficiency of the proof upon which the county judge assumed to grant the order. For these reasons, without discussing the further grounds urged by the judgment debtors against the jurisdiction of the county judge, the order appealed from must be reversed, with costs of this appeal, and the order of March first should be vacated, with ten dollars. costs of that motion. All concurred. Order reversed, with ten dollars costs and disbursements, and the order of March 1, 1904, vacated, with ten dollars costs of motion. |