author: Crane, J.

text:
    Mary Panarese et al., as Administrators of the Estate of John Panarese, Deceased, Respondents, v. The Union Railway Company of New York City, Appellant.
    (Argued January 26, 1933;
    decided March 1, 1933.)

      Alfred T. Davison and Victor McQuiston for appellant.
    Defendant cannot be held liable because its employee should have discovered the deceased in a position of peril in time to avoid the accident. (Wright v. Union Ry. Co., 224 App. Div. 55; 250 N. Y. 526; Bragg v. Central New England Ry. Co., 152 App. Div. 444; 228 N. Y. 54; Woloszynowski v. N. Y. C. R. R. Co., 254 N. Y. 206.) There was no negligence on the part of the defendant’s motorman and plaintiffs’ deceased was guilty of contributory negligence. (Kawacz v. D., L. & W. R. R. Co., 259 N. Y. 166.)

      James L. Lanzetta for respondents.
    The jury was justified in finding that the motorman saw the perilous position of the deceased and that although he had ample time, failed to use reasonable care to avoid the accident. (McDade v. International Ry. Co., 235 N. Y. 11; Bragg v. Central New England R. R. Co., 228 N. Y. 54.)
   Crane, J.

The doctrine of the last clear chance,” upon which the recovery against the defendant has been obtained, has no application to the facts in this case. The ordinary rules of negligence and contributory negligence alone control. John Panarese ran along the street into an approaching trolley car and was killed, because he did not see the car and because the motorman did not stop. Both were negligent, for which reason the plaintiff, administratrix, cannot recover. The facts, more in detail, are these:

The defendant, The Union Railway Company of New York city, operates a street surface railroad through Third avenue in that city. There are two railroad tracks, one going north, one south. It is the usual busy city street through which trolley cars run. John Panarese was in the employ of John Hinch, a truckman, as a helper, and on July 16, 1928, was riding on the truck which another employee, named Buckles, was operating, going north through Third avenue, on the northerly-bound railroad track, between One Hundred and Fifty-sixth and One Hundred and Fifty-seventh streets. A car was approaching, going south, in the neighborhood of One Hundred and Fifty-seventh street and, of course, was on the southerly-bound track. A little past One Hundred and Fifty-sixth street, Panarese jumped off the truck, apparently to look at the wheels or the axles, or something, about the truck, on the left side. The truck did not stop, but kept on, going at a rate not less than ten miles an hour. At first he ran along a little behind the truck, but finally caught up with it and was looking at the wheels or the side of the truck, at all times running toward the approaching car and between the two tracks, the north and the south tracks. The evidence indicates that he may have run in this situation for one hundred feet or more. At no time was he more than a few feet in front of the end of the truck, running along with it on the left side. A mere glance and he would have seen the approaching car. At any instant he could have stepped out of danger by letting the end of the truck pass him and then stepping behind it. One step and he would have been out of danger the moment the truck passed; all the time the truck was going ten miles an hour and more, while he was only a few feet from its rear. The motorman must have seen him. The motorman, in the exercise of ordinary care and caution, should have stopped his car or slowed down. That John Panarese was guilty of negligence and carelessness is conceded. He ran into the car without paying any attention whatever to his own safety. The motorman ran into him when he might have stopped his car in the exercise of reasonable care. These facts, however, are not sufficient to justify a recovery against the defendant for the death of John Panarese.

The case was tried upon the theory of the last clear chance.” The judge charged the jury that notwithstanding the careless conduct of the decedent, the plaintiff could recover if she established: “ First, that the motorman knew that the decedent had placed himself in a perilous position, in a position of danger — that the motorman knew that. It is not sufficient to show that in the exercise of reasonable care he should have known, but it must actually appear from the evidence in the case that the motorman knew of the perilous position in which the decedent had placed himself. * * * The plaintiffs, however, must go further. The plaintiffs must show that with knowledge of this perilous situation brought home to him, the motorman then .failed to use reasonable care to avoid the accident. * * * The third proposition that the plaintiffs must establish is that, assuming that the motorman knew of this dangerous situation in which the decedent had placed himself, and that he failed thereafter to use reasonable care to avoid the danger created and to avoid an accident, you must further be satisfied that it was such failure on the part of the motorman to use reasonable care that was the proximate cause of the accident in this case.”

This much correctly stated the law of “ the last clear chance,” but the facts and circumstances made it inapplicable to this. case. It is impossible to tell where the ordinary rule of contributory negligence ended and that of “ the last clear chance ” began. The two rules were merged into one and the jury were left to decide the case either on surmise and speculation or else upon the ordinary negligence of the motorman. The doctrine of the last clear chance ” is predicated upon the knowledge of the peril being brought home as an actual fact to the person charged with the subsequent negligence. It is not sufficient to prove that the defendant ought to have discovered or should have discovered the deceased’s perilous situation by the exercise of reasonable or ordinary care. It is what thé defendant did or failed to do after acquiring knowledge of the peril that constitutes the breach of duty. We do not say that such knowledge may not at times be inferred from the circumstances of the case. Not so here. (Wright v. Union Railway Co., 224 App. Div. 55; affd., 250 N. Y. 526.) This court said in Woloszynowski v. N. Y. Central R. R. Co. (254 N. Y. 206, 208): “ The doctrine of the last clear chance, however, is never awakened into action unless and until there is brought home to the defendant to be charged with liability a knowledge that another is in a state of present peril, in which event there must be reasonable effort to counteract the peril and avert its consequences.”

So in Kawacz v. Delaware, L. & W. R. R. Co. (259 N. Y. 166), we held that the estate of a track walker could not recover for his death where he failed to see the approach of an oncoming train, and the engineer did not realize that he would not step off the track until it was too late to stop the train. (See on this subject also, Bragg v. Central N. E. Ry. Co., 228 N. Y. 54.)

How could any jury tell from the evidence in this case when the motorman, or at what place the motorman, discovered the actual peril to Panarese? He was running towards the car between the up and down railroad tracks alongside of a truck and only a few feet from the rear of it. If he had stopped for an instant the truck would have passed him and he could have stepped behind it out of all danger. The motorman would naturally suppose that the man running in the street toward him would do this thing. He would have no reason to suppose that another would deliberately commit suicide and run into his car without. avoiding it or getting out of the way when it was possible for him to do so. The motorman may have been guilty of negligence in not stopping his car or in not slowing down sufficiently to avoid the accident, but that is not this case. We and the jury must be able to say with some degree of certainty at what point the motorman realized, not, could have realized, but did realize, that Panarese would not step out of danger, step away from the oncoming car, or go in back of his truck.

When we have a case like this, where two people, the motorman and the pedestrian, are both guilty of continuous acts of negligence, the doctrine of the last clear chance ” does not apply. Otherwise there would soon be nothing left of the law of contributory negligence. Not only must the motorman have had knowledge of the actual peril in which the deceased had placed himself, in other words, have had actual knowledge that the man would not, or could not get out of the way, but this knowledge must have come to him, this realization must have been bis at such a time that he could have stopped his car in the exercise of reasonable care. This is the after negligence by reason of which the courts have called his acts “ wilful, reckless, deliberate.”

This has been the view taken by courts of other jurisdictions. In a case where a defendant’s train, pushed by a motor car, collided with a horse and wagon, the Supreme Judicial Court of Maine had this to say, in Butler v. Rockland, Thomaston & Camden St. Railway (99 Me. 149): But even if the brakeman, seeing the situation, failed seasonably to take the necessary steps to prevent a collision which was apparently not only likely to happen, but all the more likely to happen, and which probably would happen, because of the apparent negligence or ignorance of the plaintiff, was his failure the proximate cause of the plaintiff’s injury? Was his negligence in that respect subsequent to and independent of the plaintiff’s contributory negligence? We are constrained to say that it was not. It was contemporaneous, not- subsequent. It operated to produce the result in connection with the plaintiff’s negligence, and not independently of it. The plaintiff’s negligence actively continued from the corner of the house to the point of collision. It was operative to the last moment and contributed to the injury as a proximate cause” (pp. 159, 160).

Again, we find the same principle enunciated in Fonda v. St. Paul City Railway Co. (71 Minn. 438, 451): “ It is sometimes said that the plaintiff may be entitled to recover if the defendant might, by the exercise of care, have avoided the consequences of the plaintiff’s negligence. But this doctrine is only applicable to cases in which the plaintiff’s negligence preceded that of the defendant. But when the negligence of the two persons is contemporaneous, and the fault of each operates directly to cause the injury, neither can recover from the other.” (Citing Bigelow on Torts, 311.)

In Dyerson v. Union Pacific R. R. Co. (74 Kan. 528) it was said: “ A plaintiff who has received an injury occasioned by the negligence of the defendant, but who could have avoided it by the exercise of ordinary care on his own part, cannot recover damages therefor, although the defendant ought to have discovered (but did not in fact discover) his peril in time to have prevented the accident, where the plaintiff’s negligence continued up to the very moment he was hurt, and where the exercise of reasonable diligence before that time would have warned him of his danger and enabled him to escape by his own effort.” (See, also, to the same point, Drown v. Northern Ohio Traction Co., 76 Ohio St. 234.)

As the negligence of Panarese and the negligence of the motorman were contemporaneous and the fault of each operated directly to cause the injury, and were in operation up to the very moment of the collision, the plaintiff, the administratrix of the estate of Panarese, cannot recover. The case is one of negligence for failure of the motorman to exercise ordinary care, wherein the contributing negligence of the deceased (admitted in this case) bars recovery. The doctrine of the last clear chance ” finds no place here for application.

The judgment of the Appellate Division and that of the Trial Term should be reversed, and the complaint dismissed, with costs in all courts.

Pound, Ch. J., Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ., concur.

Judgments reversed, etc.


source: Caselaw Access Project

author: Hubbs, J.

license: Public Domain

text:
    Elvie J. Smith, Appellant, v. The City of Albany, Respondent.
    (Argued January 27, 1933;
    decided March 1, 1933.)

      John J. McManus for appellant.
    The trial court erred in granting the defendant’s motion for a nonsuit and a dismissal of the complaint. (Urquhart v. City of Ogdensburg, 97 N. Y. 238; Garrett v. City of Buffalo, 7 N. Y. St. Repr. 96; 122 N. Y. 641; Granger v. Village of Seneca Falls, 45 Hun, 60; Brown v. City of Syracuse, 77 Hun, 411; Kunz v. City of Troy, 104 N. Y. 344; Stern v. International Ry. Co., 220 N. Y. 284; Ryan v. City of Schenectady, 91 Misc. Rep. 296; Tremblay v. Harmony Mills, 171 N. Y. 598.) It was a question for the jury whether the defendant was negligent in constructing and maintaining the sidewalk at the point of the accident more than five inches below the level of the concrete sidewalk between intersecting streets. (Dennis v. Village of Elmira Heights, 59 App. Div. 404; 88 App. Div. 617; 182 N. Y. 534; Eagan v. City of Buffalo, 105 Mise. Rep. 506; 188 App. Div. 953; 230 N. Y. 575; Urquhart v. City of Ogdensburg, 97 N. Y. 238; Garrett v. City of Buffalo, 7 N. Y. St. Repr. 96; Clemence v. City of Auburn, 66 N. Y. 334; Durr v. N. Y. C. & H. B. R. R. Co., 184 N. Y. 320; Corr v. City of New York, 121 App. Div. 578; Kelly v. City of New York, 129 App. Div. 658; 197 N. Y. 543; Smith v. Mayor, 17 App. Div. 438; Fordhdm v. Gouverneur Village, 160 N. Y. 541; Williams v. City of Brooklyn, 33 App. Div. 539; Bullock v. Mayor, 99 N. Y. 654.)

      George A. Reilly, Corporation Counsel (.Anthony De Stef ano of counsel), for respondent.
    The trial court did not err in granting the motion for a nonsuit and dismissal of the complaint. (Watson v. City of Kingston, 114 N. Y. 88; Hesse v. New York, 173 N. Y. Supp. 827; Daley v. Rector of Trinity Church, 188 App. Div. 280; Dougherty v. Village of Horseheads, 159 N. Y. 154; McCloskey v. Buckley, 223 N. Y. 187; Fanroth v. Byrne, 252 N. Y. 447; Beliz v. City of Yonkers, 148 N. Y. 67; Hamilton v. City of Buffalo, 173 N. Y. 72; Terry v. Village of Perry, 199 N. Y. 79; Lalor v. City of New York, 208 N. Y. 431; Butler v. Village of Oxford, 186 N. Y. 444; Stakel v. City of Batavia, 260 N. Y. 628.)
   Hubbs, J.

The city of Albany owned a plot of ground adjoining New Scotland avenue. On June 15, 1925, the defendant’s council adopted an ordinance providing for the construction of an engine house on that parcel of land. The engine house was constructed and for the purpose of making an approach for the fire engine and trucks an opening was cut in the sidewalk which was practically level in front of the lot in question. From the engine house to the street a roadway was constructed. The top of that roadway was five inches below the level of the sidewalk and where the sidewalk ended on each side of the roadway a curb was placed which was flush with the top of the sidewalk. The curb was placed in order to mark the outline of the driveway and to prevent the fire engines and trucks from going onto the sidewalk and crushing it. The change in the situation was made by the city for a city purpose in connection with the engine house.

The plaintiff, while walking along the sidewalk on the northerly side of the street, stepped off into the driveway leading to the engine house and suffered injuries. This action was brought to recover damages from the city for such injuries on the ground that the defendant had been negligent in constructing and maintaining the driveway across the sidewalk.

The trial court dismissed the complaint and the Appellate Division has "unanimously affirmed the judgment of the trial court.

There is no evidence that the driveway was out of repair or that the construction was defective in any way. All of the cases cited by the appellant in which recoveries were permitted, growing out of defects in sidewalks, were cases where there had been some interference with the sidewalk which caused a dangerous condition or there had been some defect in the walk, such as a broken stone or a hole washed out or something of that kind.

The last case to reach this court involving a defect in a sidewalk was Stakel v. City of Batavia (260 N. Y. 628). In that case a flagstone had been removed and there was a depression in the walk where the stone had been taken out. The level of the ground where the stone had been removed was below the level of the sidewalk which remained. The plaintiff fell in that depression and was injured. This court, two judges dissenting, reversed the judgment of the Appellate Division and held that there could be no recovery. The feeling of the majority of the members of the court was that the defendant was not an insurer and that it could not be made liable for slight depressions in the walk or for usual conditions.

The situation in this case is exactly the situation which exists at most of the crossings in the city of Albany. One starting to cross a road must step down from the curb into the roadway. The same condition also exists where there are alleyways, to enter which with vehicles necessitates the crossing of a sidewalk. In those entrances the top of the roadway is below the level of the sidewalk and the sides of the roadway are protected with curbs.

Appellant has not cited, and we have been unable to find, any cases where a recovery has been permitted under circumstances similar to those in the case at bar. In the case of Daly v. Rector, etc., of Trinity Church (188 App. Div. 280) the Appellate Division decided that a driveway constructed in the same manner as the one in question was not unlawfully constructed or maintained and that a judgment in favor of the plaintiff growing out of injuries should be reversed.

The case of Heaney v. Colonial Filling Stations, Inc. (262 Mass. 338) presents a situation exactly the same as the situation in the case at bar, excepting that the drop from the sidewalk to the bottom of the drive in that case was five and one-half inches. That court held that the condition was not a negligent condition, and that there could be no recovery for the injuries received.

This case does not present the question of a defective plan within the meaning of the case of Urquhart v. City of Ogdensburg (91 N. Y. 67; s. c., 97 N. Y. 238) as no evidence was offered by the defendant of the passage of a resolution as to the method of constructing the driveway.

The judgment should be affirmed, with costs.

Pound, Ch.' J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ., concur.

Judgment affirmed.


text:
    In the Matter of the Accounting of The New York Trust Company, as Executor of and Trustee under the Will of Elbert H. Gary, Deceased. Emma T. Gary, Appellant; Gertrude G. Sutcliffe et al., Respondents.
    (Argued January 25, 1933;
    decided March 7, 1933.)

      George W. Whitesiae, J. Arthur Leve, Frederick M. Davenport, Jr., and Robert M. Bozeman for appellant.
    The will is, both by its literal provisions and by its spirit, instinct with the intention of the testator to relieve bis widow of the burden of carrying the real property after she has surrendered the use thereof, whether that burden be by a direct charge or an indirect charge. (Spencer v. Spencer, 219 N. Y. 459; Lawrence v. Littlefield, 215 N. Y. 561; Matter of Jackson, 258 N. Y. 281; Eagan v. Mahoney, 24 Col. App. 285; Davidson v. Bright, 267 Penn. St. 580; Matter of Loew, 291 Penn. St. 22; Yerkes v. Yerkes, 200 Penn. St. 419; Furniss v. Cruikshank, 230 N. Y. 495.)

      Gerald Donovan and Raymond D. Thurber for Gertrude G. Sutcliffe et al., respondents.
    There is no direction or authority in the will, express or implied, to pay the charges, or any part of them, out of the separate and independent residuary trusts created for the benefit of the decedent’s daughters. (Tilden v. Green, 130 N. Y. 29; Herzog v. Title Guarantee & Trust Co., 177 N. Y. 86; Matter of Bumv, 234 N. Y. 60.)

      Royal A. Curtis for George H. Harman, special guardian of Elbert G. Sutcliffe et al., respondents.

      William Averell Brown and Kenneth B. Halstead for New York Trust Company, respondent.
   Crane, J.

Elbert H. Gary died in 1927 leaving a very large estate, which by his will he devised equally between his second wife and his two children. His home on Long Island at Jericho, in the town of Oyster Bay, called Ivy Hall,” he gave to his wife for life, provided she paid the upkeep, but should she find this too much of a burden then he directed his executor to sell it and pass the proceeds to the principal of the trust for her. The executor, having taken over Ivy Hall, and being unable to dispose of it in a favorable market, has asked the court which fund should be charged with its maintenance, the estate of the testator or the trust for the widow. The intention of Gary, as manifested in his will, is the answer to the inquiry. What did he do and what did he say? Let him speak for himself.

The will leaves $800,000 in trust for the daughter Gertrude Gary Sutcliffe, the income to be paid to her during her natural fife, thereafter to her son, and upon his death the principal to go to his surviving issue. Another trust of $800,000 is created for the daughter Bertha Gary Campbell for her fife, and upon her death for the life of her daughter, the principal thereafter to the daughter’s issue. For the widow the following provision was then made, known as article VI of the will, which reads as follows:

Article VI.
Section 1. I give, devise and bequeath unto my wife Emma T. Gary, for her own use and occupation during the term of her natural fife, unless sooner forfeited or surrendered as hereinafter provided, and without impeachment of waste my real estate known as ‘ Ivy Hall,’ comprising about one hundred and nine and seven hundred and seventy-five thousands (109.775) acres situated at or near Jericho in the Town of Oyster Bay, County of Nassau and State of New York, together with all buildings and structures thereon and all furniture, clothing, pictures, works of art, silver, plate, ornaments, bric-a-brac, household goods or supplies, books, linen, china, glass, automobiles and all implements, plants and tools which may be in or upon my said real estate at the time of my death or shall then be customarily used by me in connection therewith, excepting, however, any and all personal property bequeathed by Article III of this my will and also any and all live stock. I direct that no inventory or security shall ever be required of my said wife in respect of any of the articles of personal property by this Section of my will bequeathed to her for life, and neither she nor her estate shall ever be held liable for any consumption, use, damage, loss or injury in respect to any of said articles.
Section 2. The cost of all necessary repairs to said premises and all taxes, assessments, water rates and other governmental charges thereon shall be paid by my said wife while she has the use of the same. My said Executor and Trustee, or its duly authorized agents, shall have access to said premises at reasonable times for the purpose of ascertaining whether all necessary repairs have been made, and all receipted bills for taxes, assessments, water rates and other governmental charges thereon shall be placed in the custody of said Executor and Trustee. Neither my said wife, the remaindermen nor said Executor and Trustee shall be required to insure the improvements on said premises or their contents against loss or damage by fire or otherwise, leaving it to my said wife and the remaindermen, at their own cost and expense and without right of reimbursement for insurance premiums one as against the other, to insure their respective interests if and when they desire so to do.
Section 3. In case my said wife does not herself use and occupy said premises or in case she fails or neglects to repair the same or promptly to pay the cost of such repairs and all taxes, assessments, water rates and other governmental charges, or any of them, or in case she notifies my said Executor and Trustee that she desires to surrender her life estate in said premises because the maintenance thereof will be or has become burdensome to her, or upon the death of my said wife in case her life estate in said premises has not been sooner forfeited or surrendered, my said Executor and Trustee shall sell said premises, provided it shall be convinced that the price which can be obtained therefor is fair and reasonable and the proceeds shall thereupon be added to and become part of the principal of the trust created by Section 3 of Article X of this my will and thereafter be held in trust for the uses and purposes therein stated.”

These provisions, with some other general legacies, by no means exhausted the estate of the testator. There remained a large residue which the testator disposed of by dividing it into three parts and creating three trusts. The income from one of these trusts was to go to his widow, Emma T. Gary, during her natural life, and upon her death the principal was to be divided equally between the other trusts created for his daughters. Another of these trusts in one-third of the residuary he gave to the executor-trustee to pay the income to his daughter Gertrude Gary Sutcliffe during her natural life, and to her son Elbert Gary Sutcliffe during his natural life, and upon his death the principal was to be given to his lawful issue. The other trust in the one-third of the residuary was given to the executor-trustee to pay the income to his daughter Bertha Gary Campbell during her natural life, then to her daughter Julia Elizabeth Campbell, and at her death the principal to be paid to her lawful issue.

Section 5 of article XIV of the will reads as follows: “ I direct my said Executor and Trustee as soon as practicable after my death to sell upon the terms and conditions stated in Section 6 of this Article XIV all of my real estate, excepting such as is devised by Article VI of this my will ” (the Ivy Hall provision for the wife).

Section 6, referred to, reads as follows: “I hereby authorize and empower my said Executor and Trustee to sell, in its discretion, at public or private sale, all or any part of my estate, real or personal, at such price or prices and upon such terms as it may deem best and most expedient and to execute, acknowledge and deliver to any purchaser or purchasers thereof good and sufficient deeds of conveyance and instruments of transfer.”

Referring to these provisions for the conversion of his estate from realty into personalty, the testator says: " I do not specifically devise or bequeath unto my said wife and children any real or personal property, except as provided in Articles III and VI of this my will, because I think it better to furnish them with money and thus give them the opportunity to buy what they may deem suitable to their respective tastes, convenience and happiness.”

This in outline is the scheme and plan of the testator for the disposition of his property between his widow (second wife) and his grown-up and married children. How much real estate the testator left we do not know. He explains why he has not given specific real property and has directed its sale and conversion into personalty.

There would be, therefore, a considerable period of time before the trusts could be set up. Debts would have to be paid, general legacies met, the real estate sold upon favorable terms, and the proceeds set aside for the three trusts created out of the residue. In the meantime, expenses would be accruing for the maintenance and upkeep of the real estate and these necessary charges would be taken from the corpus of the estate, from the principal and not from any particular trust fund. We may say, therefore, that the general plan and scheme of the testator was that where real property was left by him and was to be sold by his executor-trustee, the charge of maintaining that real property was to be paid out of his estate or the funds which would later constitute the principal of the trust funds.

We think we see the same desire and intention expressed regarding Ivy Hall, the real estate left to the widow, by article VI. She was to have it for life, unless the charges and the upkeep were a burden to her. Then she could give it back to the executor-trustee to be held in the same way as the other real estate of the testator and upon the same terms and conditions. It was to be sold in a favorable market, the proceeds to go to the widow’s trust fund. The maintenance of Ivy Hall, after the executor had taken possession of it, would then be paid for out of the general funds of the estate, the entire residuary interest, in the same way that the other real estate charges were met. While the proceeds of Ivy Hall were to pass to the widow’s trust, this merely balanced the disposition made for the two daughters by the creation of an $800,000 trust fund for each, separate and distinct from the trust created for them in the residue. In place of an $800,000 trust fund, the testator had given Ivy Hall to the widow and naturally would pass the proceeds of Ivy Hall to the widow’s trust. This, however, in no way disarranged the scheme whereby the executor-trustee was to pay the charges on all the real estate in its possession prior to the time of sale, as directed in the will.

We see this idea very clearly indicated by section 2 of article VI. The cost of repairs and all taxes and assessments and water rates on Ivy Hall are to be paid by the wife “ while she has the use of the same.” This word “ while ” expresses limitation. The widow is to pay these charges up to the time that she abandons the place and turns it over to the executor-trustee, or up until the time the latter takes it from her. From then on the executor-trustee will meet these expenses out of the general funds of the estate. The duty of the executor-trustee over Ivy Hall is further stressed by the direction that it shall have access to the premises at all times to see if the repairs have been made; further, all receipted bills for taxes and the like are to be given to the executor-trustee. Why was this? To keep the place, Ivy Hall, in shape and in condition, not merely for the widow, but for the remaindermen, who were the two daughters. At the death of the widow, Ivy Hall was to be sold and the proceeds passed to the trusts for the two daughters. It was to their interest to keep up the place and to have all taxes, charges and repairs met and paid. The same disposition followed in case the widow surrendered possession to the executor. It was then to sell the place, provided it shall be convinced that the price which can be obtained therefor is fair and reasonable,” and the proceeds, while passed in the first instance to the widow’s trust, were to pass on her death to the trusts for the two daughters. The discretion or direction given to the executor-trustee to wait for a fair and reasonable price was as much for the benefit of the two daughters — remaindermen — as for the widow. Why should she pay all the charges upon the real estate while the executor was waiting for a fair price? This might take years, under the present depressed condition of the real estate market. A fair price meant more money for the daughters and their children as well as for the widow. In all reason they should share in these charges..piling up upon the real estate while waiting for a market or a fair price. The price inures to their benefit equally with the widow.

The decision of the Appellate Division has placed these charges alone upon the principal of the trust fund for the widow. She acted under section 3 of article VI of the will and notified the executor-trustee that she desired to surrender her life estate in said premises because the maintenance thereof had become burdensome to her. The testator made this provision to relieve her from the burden. The Appellate Division’s decision has merely shifted the burden from her income to her principal. These charges upon the real estate, accruing every year, until the time arrives for the executor-trustee to sell in a favorable market, reduces yearly the principal of the trust fund and decreases every year the income of the widow from the trust. Little by little it goes down. Nowhere in the will do we find any such intention on the part of the testator. He has attempted to treat his widow and two children alike, while the interpretation given by the court below would increase the trusts for the daughters and yearly decrease that for the wife. The widow, having surrendered Ivy Hall, and the executor-trustee having taken it, the cost of all necessary repairs to said premises, all taxes, assessments, water rates, governmental charges and the expenses of maintaining it in fit and proper condition for sale, are to be paid out of the general funds of the estate like the charges on other pieces of real property not yet sold. In other words, the expense is to be borne equally by the principal of the residue devised as a trust fund to the widow and the two daughters. The expense is not be be charged to the principal of the widow’s trust alone.

For these reasons the order of the Appellate Division should be reversed, and the decree of the Surrogate’s Court affirmed, with costs in this court and in the Appellate Division, payable out of the estate.

Pound, Ch. J., Kellogg, Hubbs and Crouch, JJ., concur; Lehman and O’Brien, JJ., dissent.

Ordered accordingly.


author: O’Brien, J. Crane, J. (dissenting).

text:
    Village of Mill Neck, Appellant, v. Town of Oyster Bay et al., Respondents.

      (Argued December 12, 1932;
    decided March 7, 1933.)

      David C. Bennett and William T. McCoun for appellant.
    The statute provides for an actual division and distribution of the property of the water district. (Village Law, § 35; Rosin v. Ledgerwood Mfg. Co., 89 App. Div. 245.) The provisions of the statute requiring an actual division and distribution of the water district’s property are appropriate to the situation and no hardship or difficulty is involved in their application. (County Law, § 5; Town Law, §§ 30-34; Village Law, §§ 34, 35; Wynehamer v. People, 13 N. Y. 378; Matter of Water Tax, Town of Niskayana, 235 App. Div. 566.) The Legislature has power to divide a municipal corporation and apportion its assets among its subdivisions. (Adriaansen v. Board of Education, 248 N. Y. 542; People ex rel. Coney Island Jockey Club v. Purdy, 207 N. Y. 695; Brooklyn Park Commrs. v. Armstrong, 45 N. Y. 234; Darlington v. New York, 31 N. Y. 164; People v. Kerr, 27 N. Y. 188; Kahrs v. City of New York, C8 App. Div. 233; Koelesch v. New York, 34 App. Div. 98; Worth v. Brooklyn, 34 App. Div. 223.)

      Le Roy B. Iserman, Paul Bonynge and Daniel A. Dorsey for Thomas C. Wade et al., as Commissioners of Locust Valley Water District et al., respondents.
    The plaintiff village is not in any way prejudiced by the continued existence of the water district. (Skaneateles Water Works Co. v. Village of Skaneateles, 161 N. Y. 154; Colby University v. Village of Canandaigua, 96 Fed. Rep. 449; Matter of Beauty Spring Water Co., 134 App. Div. 17; 198 N. Y. 413.)

      Charles I. Wood for Town of Oyster Bay, respondent.
   O’Brien, J.

The Locust Valley water district in the town of Oyster Bay was created pursuant to section 285 of the Town Law (Cons. Laws, ch. 62) on March 7, 1922. The village of Mill Neck became an incorporated village in that town February 28, 1925. The village of Matinecock in the same town became an incorporated village April 2, 1928, and the village of Lattingtown October 2, 1931. The water district includes territory which is now embraced within these villages.

This action, commenced October 16, 1927, was brought by the village of Mill Neck against the town and its town board and board of assessors, the commissioners of the water district and several individuals, officials and other municipal corporations. By order of the Supreme Court dated March 12, 1929, a supplemental and amended complaint made the village of Matinecock a party defendant. This amended complaint demands that the commissioners of the water district render an account apportioning and allocating to the villages of Mill Neck and Matinecock the parts of the unpaid obligations incurred in behalf of the water district prior to February 28,1925, as well as the proportionate share of bonded indebtedness which was incurred in behalf of the water district prior to the action and which the villages must assume. It also demands a partition and division of the real and personal property vested in the commissioners of the water district or a sale thereof and a division of the proceeds. The answer of the village of Matinecock makes substantially the same demands in its own behalf as of the date of April 2, 1928. These demands are based upon the provisions of sections 34 and 35 of the Village Law (Cons. Laws, ch. 64), as added by Laws of 1922, chapter 395, and by Laws of 1925, chapter 116.

The standpipe or storage tank of the Locust Valley water works system is located wholly within the boundaries of the village of Matinecock but the distribution mains penetrate all parts of the district. Wells, pumps and other accessories are also scattered throughout the district. Necessarily the finding of fact is that the system is single and entire and not susceptible of partition or division without destruction. The judgment entered upon the decision of the referee decreed among other things that the village of Mill Neck is entitled to an undivided and indivisible interest equal to 13.614 per cent in the assets of the district as of February 28, 1925, and apportioned such interest to this village. It likewise adjudged that the village of Matinecock is entitled to 23.411 per cent as of April 2, 1928, and made such an apportionment. The Appellate Division struck out these provisions and also the respective supporting conclusions of law in the decision but it affirmed that part of the judgment which dismissed so much of the cause of action as demands the partition and sale of any part of the property and an accounting.

Appellant concedes that the difficulties relating to an actual division of tangible property are great and possibly insurmountable. To conclude, therefore, that the Legislature intended to thrust upon the courts the duty of encountering a task so nearly impossible of fulfillment is scarcely conceivable. Whatever the statute may mean, we cannot think that its language leads to any such result. That it means more than the interpretation given it by the Appellate Division seems probable. According to that interpretation, the villages are entitled to no interest, not even an undivided and indivisible share in the property of'the district. The statute (L. 1925, ch. 116) by which section 35 was added to the Village Law is entitled an act “in relation to the apportionment of property and obligations ” of a special district, and the caption of this section bears the same import. In the body of the law reference is made not only to the proportion of the bonded debt incurred by the town but the act also provides that “ the apportionment of personal and real property belonging to the special district shall be determined according to the relative assessed valuation of the personal and real property in that portion of the special district without the village and that portion within the village.” The statute certainly directs more than an apportionment of liability on the bonded indebtedness and current obligations. It commands some kind of an adjustment between the district and the villages in relation to the distribution system. This part of the statute cannot be ignored or bluntly discarded as meaningless. It must be deemed to represent some purpose. Our vision is no clearer than that of the learned referee and the purpose which he believes that he detected seems to us more nearly reasonable than any other which our ingenuity can discover. If the true purpose lies hidden, it must be clarified by additional legislative illumination.

The judgment of the Appellate Division should be reversed and that of the referee affirmed, with costs in this court and in the Appellate Division.

Crane, J. (dissenting).

I do not interpret sections 34 and 35 of the Village Law as requiring an apportionment of the property or the assets constituting • a water district, or as giving to the village any property interest in the assets of the water district. The physical impossibility of making such a division is apparent. How can the pipes of a sewer district be divided into different ownership, or the equipment and property of a water district, with the pumping station and standpipe in one village, and the outlets and laterals in. another village? Or, again, how can the property of a park district or a police district be divided up? Very clear, specific and positive directions must be given by the Legislature to evidence such an intention.

The Legislature has failed to state two things. Nowhere in section 34 or in 35 do we find it stated that the village shall not be liable for future indebtedness. Secondly, there is nothing to direct or command the apportionment or division of the district assets upon the creation of the village. The words used might possibly be given this implication; there is no positive or direct statement to this effect. Surely we should not indulge in implications to arrive at such an absurd result. To me, personally, they do not even implysuch a result, although I recognize that the language is not precise.

These districts have been created for sewer, water, light, fire, park, health and police purposes. Indebtedness has been incurred by the issuing of bonds for the purpose of creating, in these instances before us, parks and a water system. Recognizing that after the creation of such districts, possibly functioning as quasi-municipal corporations, villages might be created out of the territory, sections 34 and 35 were adopted solely for the purpose of apportioning the expense of the entire district between the village thus created and the remainder of the district. It was never intended to break up the district as a district, or to apportion the property or the assets, or break up a system. To do so, physically, has been recognized by all as impossible. To do so, by mere passing of title, or giving share interest in the pipes, etc., is an implication of the referee unjustified by the statutes.

What do sections 34 and 35 say? Section 34 provides that where a village has been created out of the district it shall not be relieved from bearing its proportionate share of any liability or indebtedness incurred for such special district.” Note that this is all that the section provides. The village shall pay its proportionate share of the indebtedness. Nothing is said about future indebtedness, or relieving it of future indebtedness, or that it shall not be liable for future indebtedness. This may be implied, but it is not stated. Section 34 merely says that the village shall be liable for its proportionate part of the indebtedness already incurred. Note also that it does not say what the proportionate part shall be. This is all provided in section 35. There it is stated that the proportion of the bonded debt which shall be assumed by the village, and the apportionment thereof, shall be determined according to the relative assessed valuation of the personal and real property in that portion of the special district without the village and that portion within the village. This is simple, and the ' apportionment is to be made, in the first instance, by agreement, and, in case of failure to agree, then by the court. The village is to be taxed in accordance with the proportion of the assessed valuation of personal and real property in the village to that in the remainder of the district. How the village shall collect this tax is left to the village authorities, but this proportion of the bonded indebtedness is to be assessed upon the village by the town. Nowhere in this section 35 do we find any provision saying that the property of the various districts, water district, or sewer district, or park district shall be split up and divided between the village and the district. No such division is stated or suggested. The only thing in mind was the apportionment of the bonded indebtedness, and this was to be determined according to the apportionment of the personal and real property between the village and district. The words, apportionment of personal and real property belonging to the special district,” refer to the personal and real property in the special district. The mistake in this section, if there be one, is in using the words, belonging to.” “ Belonging ” has many meanings. One is, “ to be the property of somebody,” and the other is, to be connected with, or to be a part of.” In this latter sense section 35 reads: The proportion of the bonded debt incurred by the town and payable by a tax against the property within a special district * * * shall be assumed by the village and the apportionment of the personal and real property belonging to the special district [which means the property within the special district, just referred to] shall be determined according to the relative assessed valuation.” “ Property within a special district ” means the same thing here as property belonging to the special district.” To my mind such language would never have been used had the Legislature intended to refer to water plants and pipes, sewer pipes, or disposal plants, police station houses, park grounds, or recreation centers, and the like.

At least the courts are not justified in doing such a drastic thing as dividing up the property of a district in the absence of direct and positive orders to do so by the Legislature. We find no such division directed by this section. The Legislature has not said that this class of property shall be divided between the village and the district. Until we have a clear expression of an intention leading to such an impractical result, we should go no further than to hold that these sections, 34 and 35, provide merely for the apportionment of a bonded indebtedness, according to the relative proportion of the real and personal property in the village and in the district without the village. If the Legislature intends any more than this, it can state it in language about which there will be no misunderstanding.

For these reasons I am for affirmance.

Pound, Ch. J., Kellogg, Hubbs and Crouch, JJ., concur with O’Brien, J.; Crane, J., dissents in opinion in which Lehman, J., concurs.

Judgment accordingly. (See 261 N. Y. 696.)


author: Kellogg, J.

text:
    Village of Kensington, Appellant, v. Town of North Hempstead et al., Respondents.

      (Argued December 12, 1932;
    decided March 7, 1933.)

      George R. Brennan and August C. Flamman for appellant.
    The constitutional rights of the plaintiff are involved. (People ex rel. Bolton v. Albertson, 55 N. Y. 50; People ex rel. Townsend v. Porter, 90 N. Y. 68; People ex rel. Yost v. Becker, 203 N. Y. 201; People v. Pelham, 215 N. Y. 374.) Upon incorporation of the plaintiff it ceased to be a part of the Great Neck Park district. (,Suburban Electric Light Co. v. Town of Hempstead, 38 App. Div. 355; Villa Park Assn, of Great Neck v. Town of North Hempstead, 162 App. Div. 45; Matter of Davies v. Cheshire, 225 App. Div. 822; Village of Mill Neck v. Town of Oyster Bay, 140 Mise. Rep. 164.)

      Alfred T. Davison, Addison B. Scoville and Orrin G. Judd for Board of Park Commissioners of Great Neck Park District, respondent.
    No constitutional question is involved. (City of New York v. Village of Lawrence, 250 N. Y. 429; Matter of Eiss v. Summers, 205 App. Div. 691;
      Matter of Bronx Parkway Commission v. Hylan, 119 Mise. Rep. 785; 206 App. Div. 688; 236 N. Y. 593; People ex rel. Wood v. Draper, 15 N. Y. 532 ; Astor v. Mayor, 62 N. Y. 567; Matter of Watson, 226 N. Y. 384; Matter of Mayor of New York, 99 N. Y. 570; Mead v. Turner, 134 App. Div. 691; People ex rel. Farley v. Winkler, 203 N. Y. 445; People ex rel. Metropolitan Street Ry. Co. v. Tax Comrs., 174 N. Y. 417; People v. Paris, 181 App. Div. 499.) Sections 34 and 35 of the Village Law do not apply to the plaintiff, even if they could be construed to have a retroactive effect. (Jessup v. Carnegie, 80 N. Y. 441; Woollcott v. Shubert, 169 App. Div. 194.)

      G. Burchard Smith and Le Roy G. Edwards for Town of North Hempstead et al., respondents.
    No constitutional right of the plaintiff is violated. (People ex rel. Metropolitan Street Ry. Co. v. Tax Comrs., 174 N. Y. 417; People v. Shepard, 36 N. Y. 285; Matter of Mayor of New York, 99 N. Y. 570; Bronx Parkway Commission v. Hylan, 119 Mise. Rep. 785; 206 App. Div. 688; 236 N. Y. 593; People ex rel. Murphy v. Kelly, 76 N. Y. 475.) Sections 34 and 35 of the Village Law are not retroactive. (Village of Mill Neckv. Town of Oyster Bay, 140 Mise. Rep. 164.)

      H. Stewart Me Knight for Board of Supervisors of Nassau County, respondent.
   Kellogg, J.

The town board of the town of North Hempstead, following the method prescribed by article 17-B of the Town Law (Cons. Laws, ch. 62), newly added thereto by chapter 54 of the Laws of 1916, on the 14th day of August, 1916, established within the town a park district designated Great Neck Park District of the Town of North Hempstead.” More than five years later, on November 7, 1921, there was incorporated as a village the plaintiff, the village of Kensington. All the territory comprised within the new village was formerly within the bounds of Great Neck park district. Between the establishment of the park district and the incorporation of the village, the town board of the town of North Hempstead, pursuant to the provisions of article 17-B of the Town Law, issued its bonds, for and on behalf of the Great Neck park district, in the principal amount of $89,000. Subsequently to the incorporation of the village there have been similarly issued, for and on behalf of the park district, bonds in the principal sum of $286,000. These bonds constituted a charge upon the town, but were to “ be collected from the property within the park district.” (Town Law, § 349-f.) On the 31st of January, 1931, the board of trustees of the plaintiff village passed a resolution, declaring its election no longer to pay charges for the maintenance of the park district, except its proportionate share of charges in connection with the bonded indebtedness of the park district incurred before the plaintiff’s incorporation. The plaintiff thereafter brought this action to restrain the officers of the town, the supervisors of the county, and the commissioners of the park district, from assessing, levying or collecting any tax upon properties within the plaintiff village, on behalf of or for the Great Neck park district, except to cover the proportionate liability of such properties, on account of the bonded indebtedness of the park district incurred prior to the incorporation of the plaintiff. The complaint in the action, which sets up the facts recited, has been dismissed on the ground that it fails to state a cause of action.

The plaintiff asserts that upon its incorporation, the territory, comprised within its boundaries, ceased to be a constituent part of the park district; that any other conclusion would offend article X, section 2, of the State Constitution, which provides that all municipal officers whose election or appointment is not provided for by the Constitution Shall be elected by the electors of such cities, towns and villages, or of some division thereof, or appointed by such authorities thereof, as the Legislature shall designate for that purpose.” Briefly, the contention of the plaintiff, as stated by its counsel, is this:- Appellant contends that there cannot be at the same time within the same territory, two distinct municipal corporations exercising the same powers, jurisdiction and privileges.”

The provisions of article 17-B permit the town board of any town, upon the petition of owners of real estate in a certain district, representing more than one-half the assessed value thereof, to create and establish a park district outside an incorporated village, city, or other park district.” (Town Law, § 349.) The town board shall, appoint three persons as park commissioners who shall be owners of real estate within the district. (§ 349-a.) The commissioners shall constitute a body corporate, and shall have the powers of a municipal corporation. All real estate acquired shall be taken in their name and title thereto shall vest in them in their corporate capacity. (§ 349-c.) The board of park commissioners shall proceed to acquire the property described in the petition for the establishment of such park district and may improve the same and erect or cause to be erected thereon such noncommercial buildings and structures as may be proper for the use thereof as a park.” (§ 349-d.) “ The board of park commissioners shall have entire charge, control,. and management of the establishment, maintenance, .operation and improvement of. such park.” (§ 349-g.) The board of park commissioners shall have power to establish and enforce general rules and regulations for the government and protection of the park and of all property in charge of such board or under its control.” (§ 349-l.) “ The free use of such park may be limited by the board of park commissioners in its discretion to the inhabitants of such park district.” (§ 349-k.)

It is difficult to see wherein a violation of article X, section 2, of the Constitution may be found, if the real estate, now within the corporate limits of the plaintiff village, remains, as formerly, a constituent part of the park district. It has been said that the purpose animating the adoption of the constitutional provision referred to was to preserve to localities the control of the official functions of which they were then possessed;” per Grover, J., in People v. Raymond (37 N. Y. 428, 431); “ to secure to the people of the cities, towns or villages of the State the right to have their local offices administered by officers selected by themselves;” per Andrews, J., in People ex rel. Williamson v. McKinney (52 N. Y. 374, 378); to protect and give force and effect to the principle of local self-government;” per O’Brien, J., in Rathbone v. Wirth (150 N. Y. 459, 487). In People ex rel. Bolton v. Albertson (55 N. Y. 50, 56) Judge Allen said for the court: The theory of the Constitution is, that the several counties, cities, towns and villages are, of right, entitled to choose whom they will have to rule over them.” The commissioners of the park district in question were appointed by the town board of the town of North Hempstead out of which the park district was created. They became officers of an agency of the town, for a particular town purpose, through appointment by such authorities thereof, as the Legislature ” had designated for that purpose.” They were vested with authority, not to control and manage the park district, but the park land which they might acquire within the limits of "the area described as constituting the district. According to the allegations of the complaint itself, the commissioners never acquired park lands within the area now constituting the territory of the plaintiff village. It will thus be seen that the commissioners are officers of a town agency; that they were appointed by town authorities; that they have “ charge, control, and management ” of park lands purchased for town purposes. Here is no violation of “ the principle of local self-government,” of the constitutional mandate that municipalities shall have their local offices administered by officers selected by themselves,” of the theory that the several münicipalities “ are, of right, entitled to choose whom they will have to rule over them.” Even if the commissioners had acquired title to park lands which now are within the village limits, that fact would not alter the situation. Even then the commissioners would act merely as officers of a town agency in the management of town property within the village limits; they would in no manner perform the functions of village officers; they would in no way govern the people of the village or control their finances or properties.

In Matter of City of New York (99 N. Y. 569, 583, 584) there will be found a case which is quite definitely in point. An act of the Legislature (L. 1884, ch. 522) was there under review which empowered the city of New York to acquire title to lands within the city limits, as well as lands within the county of Westchester adjoining, for park purposes, and bestowed upon the department of public works of New York city jurisdiction and control over these lands when acquired, for the purpose of maintaining them as public parks. It was held that the act did not violate article X, section 2. There the court said that the “ park police do not become Westchester county officers;” that “ no official of that county is legislated out of office;” that no officers are removed or superseded or interfered with, and the local government of Westchester is not abridged.” The court could see that questions may arise as between the park police and the county authorities, and there may be a collision as to the rights of each, but that will not raise the constitutional question presented.” It then made the statement: The park police will be and remain New York officers, and if there is no power to grant them authority within the lines of the city’s property, at least that provision may give way to the right and duty of Westchester to preserve the peace and protect life and property within the county limits without any harm to the general scheme and scope of the law authorizing the new parks.” Thus, the city of New York might own and control lands in the adjoining county of Westchester, maintain and manage them as public parks, without subjecting itself to a charge of displacing local county officers, or of interfering with local self-government, in violation of article X, section 2. So here, the commissioners of Great Neck park district, acting for the town of North Hempstead, might acquire and govern park lands in the plaintiff village, without displacing local self-government or violating the constitutional provision.

There was nothing in article 17-B, as it read when the plaintiff village was incorporated, which expressly or by implication provided that upon the erection of a village within the park area, the territory so taken over by the village should cease to constitute a part of the park district. It is true that the area originally to be established as a park district must be real property “ outside an incorporated village, city, or other park district.” (Town Law, § 349.) However, the commissioners might acquire for a park real estate within an incorporated village or city, provided the legislative body of such municipality gave its consent thereto. (Town Law, § 349-d.) Evidently the thought that the commissioners of a park district might acquire lands within a village, to be administered by them as a public park, was not repugnant to the Legislature.

The judgment should be affirmed with costs.

Pound, Ch. J., Ceane, Lehman, O’Beien, Hubbs and Ceouch, JJ., concur.

Judgment affirmed.