text:
    Amielia Rarogiewicz, Respondent, v. The Brotherhood of American Yeomen, Appellant.

      Insurance — evidence — physicians and surgeons — confidential communications — action to recover on certificate of life insurance —• exclusion of certificate of attending physician submitted by plaintiff as part of proof of death — exclusion of testimony of medical interne and of record made by him upon admission of insured to hospital.

      Rarogiewicz v. Brotherhood of American Yeomen, 215 App. Div. 794, affirmed.
    (Argued April 1, 1926;
    decided May 4, 1926.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 26, 1926, unanimously affirming a judgment in favor of plaintiff entered upon a verdict directed by the court. The action was to recover upon a certificate of benefit insurance, upon the fife of plaintiff's husband. The defense was that certain statements in the application warranted by the applicant to be true were in fact false. The questions on appeal were whether the exclusion of a certificate of the attending physician of insured, submitted by plaintiff as part of the proofs of death, and the exclusion of testimony of a medical interne and of a record made by her upon the reception of insured in the hospital where he died, constituted reversible error.

      Frank Gibbons for appellant.

      John V. Maloney and Robert J. Summers for respondent.
   Judgment affirmed, with costs. Held, that the exclusion of the certificate of Dr. DeGroat as an admission of plaintiff was not prejudicial, and the exclusion of .the evidence and record of Miss Nelson was proper as it appears that she was acting as the agent of the attending physician.

Concur: Hiscock, Ch. J., Cardozo, Pound, McLaughlin, Crane and Lehman, JJ. Absent: Andrews, J.


source: Caselaw Access Project

license: Public Domain

text:
    George C. Bouton, Plaintiff, v. George A. Fleharty et al., Defendants, Louis P. Penfield et al., Appellants, and Charles D. Swan et al., Respondents.

      Real properly — partition — evidence — paper writing purporting to be will may be received as evidence of title though not probated in this State.

      Bouton v. Fleharty, 215 App. Div. 180, affirmed.
    (Submitted April 2, 1926;
    decided May 4, 1926.)
    Appeal from a judgment, entered January 25, 1926, upon an order of the Appellate Division of the Supreme Court in the second judicial department, which reversed an order of the court at a Trial Term setting aside a verdict in favor of defendants-respondents and granting a new trial, and directed reinstatement of said verdict and the entry of judgment thereon. The action was to partition real property. The question was whether the Supreme Court, in a partition action, in determining rights to an interest in the property the subject of the action as between various defendants, can give effect to a paper writing purporting to be a will, as an evidence of title, unless that paper writing has been properly probated in this State.

      J. Henry Esser and Raphael A. Carretta for appellants.

      Arthur M. Johnson for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane and Lehman, JJ. Absent: Andrews, J.


text:
    Bradley J. Hurd, Respondent, v. John B. Meola, Appellant.

      Negligence — motor vehicles — collision between two automobiles — action to recover for damage to car.

      Hurd v. Meóla, 215 App. Div. 861, affirmed.
    (Argued April 2, 1926;
    decided May 4, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 13, 1926, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for injury to plaintiff’s automobile through a collision with the automobile of defendant. The complaint alleged that on or about the 18th day of April, 1924, at about four-thirty o’clock in the afternoon, the plaintiff was driving his car in an easterly direction on the Buffalo and Batavia road known as Main street and after he had passed' the intersection of said Main street with the Crittenden road in or near Newstead in Erie county, and while the defendant was driving his car in a westerly direction on said street that the defendant suddenly turned to the left across the center of the street onto the southerly side thereof and hit the plaintiff’s car in the front and left side, and that defendant made the turn to the left without signaling and without warning. The defense was practically a general denial.

      Herbert C. Stratton and James S. Flanagan for appellant*

      Harold J. Adams for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane and Lehman, JJ. Absent: Andrews, J.


text:
    Walanty Jerzewski et al., as Administrators of the Estate of Stephen Jerzewski, Deceased, Appellants, v. Erie Railroad Company, Respondent.

      Negligence — railroads — trespass ■— license • — - action to recover for death of intestate struck hy train while on tracks — complaint properly dismissed.

      Jerzewski v. Erie B. B. Co., 215 App. Div. 748, affirmed.
    (Argued April 2, 1926;
    decided May 4, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 23, 1925, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendant. Intestate, while standing or walking on defendant’s tracks was struck by one of defendant’s trains and killed. Plaintiff contended that intestate was a licensee upon the tracks of defendant, he being one of many customers at an adjoining coal trestle whose custom it was, to the knowledge of defendant, to go upon its tracks and examine the cars to ascertain the size and character of coal contained therein, and that he was so engaged when struck by some empty cars which had been bumped backward without warning and without a trainman or brakeman on the forward moving end.

      Carlton J. Townsend and William J. Brock for appellants.

      John W. Ryan for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane and Lehman, JJ. Absent: Andrews, J.


text:
    The People of the State of New York, Respondent, v. George W. Bittle, Appellant.

      Crimes — murder in first degree — judgment of conviction affirmed.

    (Argued April 5, 1926;
    decided May 4, 1926.)
    Appeal from a judgment of the Erie County Court, rendered May 23, 1925, upon a verdict convicting the defendant of the crime of murder in the first degree.

      Thomas L. Newton, George B. Burd and Edward J. Cohn for appellant.

      Guy B. Moore, District Attorney, for respondent.
   Judgment of conviction affirmed; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    The People of the State of New York, Respondent, v. Dillard Moore, Appellant.

      Crimes — murder in first degree — judgment of conviction affirmed.

    (Argued April 5, 1926;
    decided May 4, 1926.)
    Appeal from a judgment of the Supreme Court, rendered October 8, 1925, at a Trial Term for the county of Westchester upon a verdict convicting the defendant of the crime of murder in the first degree.

      Mortimer C. O’Brien for appellant.

      Arthur Rowland, District Attorney {John M. Holzworth of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

Concur: His cock, Ch. J., Cakdozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    The People of the State of New York, Respondent, v. Frank A. Daley, Appellant.

      Crimes — murder in first degree — judgment of conviction affirmed.

    (Argued April 5, 1926;
    decided May 4, 1926.)
    Appeal from a judgment of the Supreme Court, rendered October 16, 1925, at a Trial Term for the county of Westchester upon a verdict convicting the defendant of the crime of murder in the first degree. Frederick E. Weeks for appellant.

      Arthur Rowland, District Attorney {John M. Holzworth of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

Concur: PIiscock, Ch. J., Cakdozo, Pound, McLaughlin, Crane and Lehman, JJ. Not voting: Andrews, J.


text:
    John Connors, Appellant, v. Rockaway Whirlpool Co., Inc., Respondent. Lena Connors, Appellant, v. Rockaway Whirlpool Co., Inc., Respondent.

      Negligence ■ — ■ injury to woman riding in amusement device from striking bolt on fall to bottom of car — proximate cause.

      Connors v. Rockaway Whirlpool Co., Inc. (2 eases), 214 App. Div. 703, affirmed.
    (Argued April 5, 1926;
    decided May 4, 1926.)
    Appeal in each of the above-entitled actions, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 2, 1925, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term. The first action was to recover for loss of services of plaintiff’s wife and expense occasioned from personal injuries alleged to have been sustained by her through the negligence of defendant. The second was to recover for such personal injuries. The plaintiff, Lena Connors, while riding in a circular car in an amusement device called the “ whirlpool ” wherein the cars were caused to revolve on a circular metal platform, was thrown from her seat to the floor, striking her leg against a metal bolt which protruded through the floor about half an inch and causing the injury complained of. The trial court dismissed the complaints on the ground that the existence of the bolt was not the proximate cause of the injury.

      Barnett E. Kopelman for appellants.

      George W. Tucker for respondent.
   Judgment, in each case, affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, McLaughlin, Andrews and Lehman, JJ. Dissenting: Pound and JJ.


text:
    In the Matter of the Application of the Attorney-General of the State of New York, Respondent. Ludwig C. A. K. Martens, Appellant.

      Bail —former adjudication — deposit of bond in lieu of bail — denial by Supreme Court of two applications for return thereof — determinations a bar to renewed litigation of same issue.

      Matter of Attorney-General {Martens), 207 App. Div. 848, affirmed.
    (Submitted April 5, 1926;
    decided May 4, 1926.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered' November 23, 1923, which affirmed an order of Special Term granting a motion to have declared forfeited a bond deposited by appellant herein with the sheriff of the county of New York, under a bailable attachment and directing the said sheriff to deliver the bond and attached coupons or their proceeds to the State Treasurer. Appellant having failed to appear before a legislative committee, pursuant to a subpoena, was arrested under a bailable attachment issued by a Supreme Court justice and thereafter admitted to bail and released upon deposit of the bond in question. He thereafter appeared before the committee but upon his again being required to attend left the State and remained away during the life of the committee. Thereafter, appellant made two applications to the Supreme Court for return of the bond, both of which were denied.

      Charles Recht and Osmond K. Fraenkel for appellant.

      Albert Ottinger, Attorney-General (.Robert P. Beyer of counsel), for respondent.
   Order affirmed, with costs, on the ground that the former adjudication on the application of the appellant for the return of the security is binding on the parties and prevents them from litigating over again the same issue. (Williams v. Barkley, 165 N. Y. 48.)

Concur: Hiscock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    Morris Kreitman, Respondent, v. Walter Beh, Doing Business under the Name of Beh & Company, Appellant.

      Negligence — motor vehicles — pedestrian struck by motor truck at street crossing.

      Kreitman v. Beh, 215 App. Div. 706, affirmed.
    (Argued April 6, 1926;
    decided May 4, 1926.)
    Appeal from a judgment- of the Appellate Division of the Supreme Court in the first judicial department, entered January 11, 1926, modifying and affirming as modified a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. Plaintiff, while crossing West Twenty-fifth street at Broadway in the borough of Manhattan was struck by defendant’s motor truck causing the injuries complained of.

      Edward A. Alexander, Arthur Mayer and A. Lincoln Lavine for appellant.

      Harold R. Medina and M. N. Sehhider for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    The People of the State of New York, Appellant, v. Pincus Greenstein, Respondent.

      Crimes —failure to secure payment of compensation to an employee — insufficiency of evidence to show employment — judgment of conviction properly reversed.

      People v. Greenstein, 215 App. Div. 359, affirmed.
    (Submitted April 6, 1926;
    decided May 4, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 29, 1926, which reversed a judgment of the Court of Special Sessions of the city of New York, convicting the defendant of the crime of faffing to secure the payment of compensation to an employee and dismissed the information. The Appellate Division held that the People had failed to show employment by defendant of the injured workman.

      Charles J. Dodd, District Attorney {Henry J. Walsh of counsel), for appellant.

      Louis Horwitz for respondent.
   Judgment affirmed; no opinion.

Concur: Hiscock, Ch. J., Cardozo, McLaughlin, Crane and Lehman, JJ. Dissenting: Pound, J. Not voting: Andrews, J.


text:
    Albert T. Benedict, Respondent, v. Cornelia S. Benedict, Appellant.

      Real property — title — action to impress trust on real property transferred by third party to defendant — payment by plaintiff of cash part of consideration — execution by defendant of bond and mortgage for remainder — defense that equity was a gift.

      Benedict v. Benedict, 215 App. Div. 723, affirmed.
    (Argued April 6, 1926;
    decided May 4, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 1, 1925, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term: The action was to establish a trust in real property. The complaint alleged that, when the property in question was conveyed to defendant on January 1, 1919, by a stranger hereto, for $7,250, the cash part of the consideration, to wit, $2,250, was paid by plaintiff but the title taken and recorded in defendant’s name, on the strength of an express promise by defendant that if plaintiff would do this defendant would hold the title in trust for plaintiff and convey according to his demand, and that thereafter plaintiff made large expenditures on the farm. The defendant admitted that plaintiff paid the cash part of the consideration, but alleged that she secured the rest by her own purchase-money bond and mortgage, denied that she made any promise to stand seized, and claimed that the equity in the farm was a gift to her for a real consideration.

      Yorke Allen for appellant.

      Graham, Witschief for respondent.
   Judgment affirmed, with costs; no opinion.

"Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane and Lehman, JJ. Not voting: Andrews, J.


text:
    Maria Fusco, Respondent, v. Giuseppe Fusco, Appellant.

      Husband and wife — action for separation — alimony.

      Fusco v. Fusco, 215 App. Div. 702, affirmed.
    (Submitted April 7, 1926;
    decided May 4, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 21, 1925, modifying and affirming as modified a judgment in favor oí plaintiff entered upon a decision of the court on trial at Special Term. The action was wife against husband for a separation. The Appellate Division modified the judgment for a separation on the ground of cruel and inhuman treatment by increasing the allowance of alimony.

      Frank J. Rinaldi for appellant.

      Samuel Wechsler and Gandolfo A. Sellaro for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    Philip Fleisher, Respondent, v. The Phœnix Insurance Company, Appellant.

      Insurance {theft) — action to recover on policy insuring plaintiff against theft of automobile — defense that plaintiff or his agent authorized delivery of automobile to thief.

      Fleisher v. Phwnix Ins. Co., 215 App. Div. 779, affirmed.
    (Argued April 7, 1926;
    decided May 4, 1926.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 17, 1925, unanimously affirming a judgment in favor of plaintiff entered upon a verdict. The action was to recover upon a policy of insurance for loss by theft of plaintiff’s automobile. The defense was that plaintiff or his agent authorized the thief to remove the automobile from the garage and that plaintiff failed to file proof of loss within sixty days. Stanley Garten for appellant.

      Quinto J. Porcella for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Cardozo, Pound, McLaughlin, Crane and Lehman, JJ. Not voting: Andrews, J.


text:
    Marion L. Robinson, as Administratrix of the Estate of George Robinson, Deceased, Respondent, v. Robins Dry Dock and Repair Company, Appellant, Impleaded with Another.

      Appeal — order of Appellate Division affirming, by divided court, judgment entered upon verdict not appealable to Court of Appeals.

      Robinson v. Robins Dry Dock & Repair Co., 215 App. Div. 776, appeal dismissed.
    (Argued May 6, 1926;
    decided May 11, 1926.)
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 10, 1925, affirming a judgment in favor of plaintiff entered upon a verdict.

      Paul Koch for appellant.

      Thomas J. O’Neill, Leonard F. Fish and Patrick J. McMahon for respondent.
   Appeal dismissed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane and Lehman, JJ. Absent: Andrews, J.


text:
    Gerhard & Hey, Inc., Appellant, v. Cattaraugus Tanning Company, Respondent.
    (Submitted May 3, 1926;
    decided May 11, 1926.)
   Motion to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 241 N. Y. 413.)


text:
    Joseph Hild, Appellant, v. McClintic-Marshall Company, Respondent.

      Appeal — discretionary order —failure to file undertaking and return — motion to dismiss appeal granted.

      Hildv. McClintic-Marshall Co., 215 App. Div. 780, appeal dismissed.
    (Submitted May 3, 1926;
    decided May 11, 1926.)
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 4, 1925, which reversed an order of the Trial Term granting a motion to set aside a prior dismissal of the complaint and directing restoration of the case to the calendar.
    The motion was made upon the grounds of failure to perfect the appeal by' filing the required undertaking and return, and upon the further ground that the Court of Appeals had no jurisdiction to entertain the appeal.

      E. C. Sherwood for motion.

      Matthew W. Wood opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    The Farmers’ Loan and Trust Company, Individually and as Trustee under the Will of Herbert B. Turner, Deceased, Appellant, v. Elizabeth M. Turner, Individually and as Executrix of Thornton F. Turner, Deceased, et al., Respondents.
    (Submitted May 3, 1926;
    decided May 11, 1926.)
    Motion to amend remittitur. (See 242 N. Y. 240.)
   Motion granted. Remittitur amended by allowing a separate bill of costs to each guardian ad litem payable out of estate.


text:
    Charles Reif, Appellant, v. Jacob Rutenberg, Respondent.

      Appeal — discretionary order — motion to dismiss appeal granted.

      Reif v. Rutenberg, 216 App. Div. 742, appeal dismissed.
    (Submitted May 3, 1926;
    decided May 11, 1926.)
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 12, 1926, which reversed an order of Special Term denying a motion to dismiss the complaint and granted said motion.
    The motion was made upon the ground that the order •of the Appellate Division was discretionary.

      E. C. Sherwood for motion.

      Charles Marks opposed.
   Motion granted and appeal dismissed, with costs, and ten dollars costs of motion.


text:
    Ridley Watts et al., Respondents, v. Phillips-Jones Corporation, Appellant.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 242 N. Y. 557.)


text:
    In the Matter of the Will of Patrick Sullivan, Deceased Julia Markson et al., Appellants; Thomas F. Magner, as Executor, Respondent.

      Appeal — motion to dismiss —■ unanimous reversal — leave to appeal unnecessary.

    Reported below, 216 App. Div. 266.
    (Argued May 3, 1926;
    decided May 11, 1926.)
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered February 18, 1926, which reversed a decree of the Kings County Surrogate’s Court denying probate to a paper propounded as the last will and testament of Patrick Sullivan, deceased, setting aside the verdict on which said decree was entered and remitting the matter to the Surrogate’s Court with a direction to admit the will to probate.
    The motion was made upon the ground that the appeal was from an unanimous finding of fact of the Appellate Division and that no question of law was involved.

      Patrick E. Callahan for motion.

      Otho S. Bowling opposed.
   Motion denied, with ten dollars costs, arid without prejudice to the right to argue on the hearing of appeal the right of the Appellate Division to make findings of fact and direct decree.


text:
    Frank Salomone, as Administrator of the Estate of Frank Salomone, Deceased, Respondent, v. Yellow Taxi Corporation, Appellant.
    (Submitted May 3, 1926;
    decided May 11, 1926.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 242 N. Y. 251.)


text:
    Earl B. Barnes, as Trustee in Bankruptcy of Thomas H. Cowley et al., Individually and as Copartners under the Firm Name of Thos. H. Cowley & Co., Appellant, v. William Schatzkin et al., Individually and as Copartners under the Firm Name of Schatzkin, Bernstein & Co., Respondents, Impleaded with Others. Earl B. Barnes, as Trustee in Bankruptcy of Thomas H. Cowley et al., Individually and as Copartners under the Firm Name of Thos. H. Cowley & Co., Appellant, v. Lawrence J. Kirsch et al., Individually and as Copartners under the Firm Name of Morris & Smith, Respondents, Impleaded with Others.
    (Submitted May 3, 1926;
    decided May 11, 1926.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 242 N. Y. 555.)


text:
    The People of the State of New York ex rel. Philip G. Cole, Appellant, v. John F. Gilchrist et al., Constituting the State Tax Commission, Respondents.

      People ex rel. Cole v. Gilchrist, 215 App. Div. 851, affirmed.
    (Argued May 3, 1926;
    decided May 14, 1926.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 5, 1926, which confirmed, on certiorari, a determination of the State Tax Commission denying the application of relator for a refund of income taxes paid during the years 1921, 1922 and 1923. The father of the relator, for a valuable consideration, set up a trust providing for the payment of the income thereof to relator during the term of his life. The relator claims that as he bought the proceeds of the trust and paid therefor, the amount thereof was not income within the meaning of the Tax Law and was not subject to an income tax.

      Frank M. Avery and Earl A. Darr for appellant.

      Albert Ottinger, Attorney-General {Henry S. Manley of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Cardozo, Pound, McLaughlin, Crane and Lehman-, JJ. Absent: Andrews, J.


text:
    Henry W. McMaster et al., as Receivers of the Wabash Pittsburgh Terminal Railway Company, Appellants, v. George J. Gould et al., Defendants. Kingdon Gould et al., as Executors of George J. Gould, Respondents.

      Appeal ■ — ■ denial of motion for substitution of foreign executors in place of deceased defendant — appeal from order of Appellate Division affirming order dismissed.

      McMaster v. Gould, 215 App. Div. 811, appeal dismissed.
    (Argued May 3, 1926;
    decided May 14, 1926.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 29, 1926, which affirmed an order of Special Term denying a motion to substitute the New Jersey executors of George J. Gould, deceased, in his place as defendants herein.

      James Marshall and Louis Marshall for appellants.

      William Wallace, Jr., for respondents.
   Appeal dismissed, with costs; no opinion.

Concur: Hiscock, Ch. J., Cardozo, Pound, McLaugh'lin, Crane and Lehman, JJ. Absent: Andrews, J.


text:
    In the Matter of the Application of the Grade Crossing and Terminal Station Commission of the City of Buffalo, Appellant. The City of Buffalo, Appellant; Erie Railroad Company, Respondent.

      Buffalo — grade crossing — appraisal of damage to lands from conduction of underground crossing.

      Matter of Grade Crossing Comrs. of City of Buffalo (Walden Ave.), 214 App. Div. 809, affirmed.
    (Argued May 3, 1926;
    decided May 14, 1926.)
    Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered June 30, 1925, which modified and affirmed as modified an order of Special Term confirming the report of commissioners of appraisal appointed under the provisions of the Buffalo Grade Crossing Act to ascertain and report the compensation to be paid to the owners of and parties interested in lands which may be injured by the change of grade of Walden avenue and Sycamore street occasioned by the construction of a subway in Walden avenue under the tracks of the Erie Railroad Company.

      Myron S. Short and Dewitt Clinton for Grade Crossing and Terminal Station Commission, appellant.

      Frederic C. Rupp, Corporation Counsel (,Jeremiah J. Hurley of counsel), for City of Buffalo, appellant.

      S. Fay Carr for respondent.
   Order affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane and Lehman, JJ. Absent: Andrews, J.


author: Andrews, J.

text:
    In the Matter of the Will of Amanda F. Buttner, Deceased. Henry O. Buttner, Appellant; William W. Johnson as Executor and Trustee, et al., Respondents.
    Will — trust — creation of trust with direction that income be first distributed to three life tenants, then, upon the death of one, to the two survivors, and upon the death of a second one-half of principal distributed and income from remaining half paid to surviving life tenant, and upon his or her death, residue distributed — will construed as creating three separate trusts — no illegal suspension of power of alienation.
    Where a testatrix, by her will, created a trust as to her residuary estate and directed that one-third of the net income should be paid to each of three persons named, during their several lives; that in the event of the death of one, each survivor be paid one-half the income, and in the event of the death of a second, the residue of the estate be divided into two parts, one part to be distributed among specified remaindermen and the income from the other part to be paid to the survivor of the three original life tenants, and upon his or her death the rest and residue of the estate distributed to the remaindermen, there is no illegal suspension of the power of alienation. The will should be construed as creating three independent and separate trusts, the principals of all of which are simply held together for purposes of investment;. Upon the death of one of the life tenants, the trusts of the two survivors are increased from one-third to one-half of the income. Upon the death of the second, the trust in his or her favor is to be distributed and that of the survivor continues until his or her death when it, likewise, is to be distributed.
    (Argued March 29, 1926;
    decided May 25, 1926.)

      Matter of Buttner, 215 App. Div. 62, modified.
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered February 3, 1926, which modified and affirmed as modified a .decree of the Westchester County Surrogate’s Court construing the will of Amanda F. Buttner, deceased.

      Ralph W. Crolly for appellant.
    The provisions of testatrix’s will are so interwoven, interdependent and indivisible as to constitute an entire scheme and render the disposition of her residuary estate, excluding the $500 deferred legacy to her granddaughter, illegal and invalid. (Bailey v. Buffalo L. T. & S. D. Co., 213 N. Y. 525; Benedict v. Webb, 98 N. Y. 460; Brown v. Quintard, 177 N. Y. 75; Matter of Butterfield, 133 N. Y. 473; Rice v. Barrett, 102 N. Y. 161; La Farge v. Brown, 31 App. Div. 542.) If this court holds the trust provisions of the will are separable then testatrix died intestate as to one-half of her residuary estate passing at the death of the second of the three named beneficiaries to die. (Simpson v. Trust Company, 129 App. Div. 203; Gottman v. Grace, 112 N. Y. 308; Van Nostrand v. Moore, 52 N. Y. 18; Baker v. Gerow, 126 N. Y. Supp. 277; Herzog v. Title Guaranty & Trust Company, 177 N. Y. 91; Cammann v. Bailey, 210 N. Y. 19.)

      Wilson R. Yard, for executor and trustee, respondent.
    The intent of the testatrix in establishing a trust is clear, and the unanimous opinion of the learned Appellate Division should be sustained. (Matter of Evans, 234 N. Y. 42; Matter of Barney, 207 App. Div. 25; Matter of Trevor, 120 Misc. Rep. 22; 207 App. Div. 673; 208 App. Div. 812; 239 N. Y. 8; Tilden v. Green, 130 N. Y. 29; Matter of Lutz, 202 N. Y. Supp. 845; U. S. Trust Co.

      of New York v. Baes, 207 N. Y. Supp. 23; Stewart v. Stewart, 205 App. Div. 587; Matter of Allen, 111 Misc. Rep. 93; 202 App. Div. 810; 236 N. Y. 503; Matter of Horner, 237 N. Y. 489; Carrier v. Carrier, 226 N. Y. 114.) The intention of the testatrix must be gathered from the whole will, and the clear intent as therein expressed is to vest her general residuary estate in the persons or class named in the 4th paragraph of her will, and she carefully avoids intestacy in the 7th paragraph of her will. (Matter of Buechner, 226 N. Y. 440; Eidt v. Eidt, 203 N. Y. 325; Matter of Woods, 177 N. Y. Supp. 825; Williams v. Petit, 138 App. Div. 394; Haug v. Schumacher, 166 N. Y. 506; Meeks v. Meeks, 161 N. Y. 66; Nelson v. Russell, 135 N. Y. 137; Goebel v. Wolf, 113 N. Y. 405; Weeks v. Cornwell, 104 N. Y. 325; Ossman v. Von Roemer, 221 N. Y. 381.)

      Henry P. Griffin for Dorothy E. Wurm et al., respondents.
    The trust is divisible at the death of the first life beneficiary. It is divided by said trust provisions into two equal parts, and in no contingency provided for in said trust provisions does the said trust or any part thereof continue for a longer term than for two lives in being at the date of the death of the testatrix, and, therefore, the trust is valid in toto. (Schermerhorn v. Cotting, 131 N. Y. 48; Wells v. Wells, 88 N. Y. 323; Post v. Bruere, 127 App. Div. 250; Leach v. Godwin, 198 N. Y. 35; Vanderpoel v. Loew, 112 N. Y. 167; Matter of Horner, 237 N. Y. 489; Meeks v. Meeks, 161 N. Y. 66; Lewis v. Howe, 174 N. Y. 340; Matter of Ossman v. Von Roemer, 221 N. Y. 381; Matter of Allen, 111 Misc. Rep. 93; 202 App. Div. 810; 236 N. Y. 503.)

      Arthur I. Strang for respondent.
    The order of the Appellate Division should be affirmed. (Matter of Buechner, 226 N. Y. 440; Union Trust Company v. Cole, 198 App. Div. 539; Matter of Union Trust Company, 219 N. Y. 537.)
   Andrews, J.

Henry O. Buttner, as her sole heir at law and next of kin, brings this proceeding to obtain a determination as to the construction, validity and effect of the will of his mother. The testatrix gave and devised the remainder of her estate to trustees in trust to collect the rents, income and profits thereof and after the payment of debts and expenses, to administer and distribute such remainder by first paying a legacy of $500 and then by investing the balance and paying over one-third of the net income thereof to Bertha Scbroeder, Henry 0. Buttner and Emma N. Johnson respectively during their several lives. Should any of these three die before the testatrix or upon the death of either of them after her, the income was to be paid equally to the survivors, each receiving consequently one-half thereof. Upon the death of the second of the three “ I direct my said trustees to divide the residue of my said estate then remaining into two equal parts and to distribute and pay over one of said parts equally to certain persons named and to any issue of certain nephews share and share alike. If any of such beneficiaries “ predecease leaving them issue surviving at the time of such distribution such issue are to take the share their parents would have taken if living. The income from the other one-half is to be paid to the survivor of the three original life tenants and upon his or her death the principal to the remaindermen above referred to in the same proportion, shares and manner as above provided. The same disposition is to be made of any bequests or devises which lapse either because of the death of any of the person or persons entitled to take under the will or for any other reason without a proper direction contained in the will as to how the same should pass.

The petitioner claimed (except for the $500 legacy) that the entire trust provision is void and that as to the residuary estate Mrs. Buttner died intestate. If not, at least she died intestate as to the half of the estate, the income of which was to be paid to the survivor of the three life beneficiaries. If the entire trust fund is to be held as a unit and the income only divided first into thirds while the three fife tenants survive, then into halves while the remaining two survive; if only then is the fund to be divided and one-half of the principal to be held in trust for the fife of the third survivor, doubtless as to that half at least there is an illegal suspension of the power of alienation. It may be also that such a result would so disrupt the entire scheme of the testatrix that all the trust provisions should be construed together and all must fall. The surrogate, however, held otherwise. Under his construction of the will three independent and separate trusts were created, the principals of all of which were simply held together for purposes of investment. Upon - the death of one of the life tenants the trusts of the two survivors were increased from one-third to one-half of the estate. Upon the death of the second fife tenant the trust in favor of the survivor continued until his or her death. The trust in favor of the one dying was then to be distributed. The trust in favor of the surviving fife tenant upon his or her death is to be likewise distributed.

Upon appeal by petitioner to the Appellate Division this result was modified. That court held that the trust was a unit; that as to the portion to be held for the third surviving fife tenant there was an illegal suspension of the power of alienation. The provision in this regard, however, was separable from the other provisions of the ‘ will which might consequently be sustained. As to the half of the estate as to which the trust was continued after the death of two of the three fife tenants, the testatrix did not die intestate; but under the provision as to lapsed legacies and as to portions of the estate as to which no proper disposition was made, that half should.when two of the fife tenants had died be distributed among the remaindermen mentioned in the earlier portions of the will. This result was less favorable to the petitioner than was the original decree. Should he chance to survive the other two life tenants, the trust in his favor would end. He again appeals.

While the question is a close one and the will is more or less ambiguous, in our opinion the decree of the surrogate was correct. So far as possible we must follow what was plainly the intention of the testatrix. After the death of the first life tenant the other two shared equally in the income of the estate. After the death of the second the survivor received no more and no less. It is true that nothing is said explicitly about the division of the estate into separate trusts until after the second death. Naturally then a division of the principal must take place because one-half of the estate is to go to the remaindermen, and the mind of the testatrix would be sharply directed to the need of a physical division. Until that time she might have in mind the benefit of holding together the estate for convenience of investment. As indicating that such was her intention is the provision that the trustees shall administer and distribute the rest and residue then remaining ” of her estate after the payment of debts and expenses in the manner specified.

Taking, as we do, this construction of the will, the surrogate was also right as to the disposition of one-half of the estate upon the death of the second life tenant and of the remaining one-half upon the death of the third.

The order of the Appellate Division should be modified as herein indicated and as so modified affirmed, with costs to the respondents filing briefs on this appeal, payable out of the estate.

His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane and Lehman, JJ., concur.

Ordered accordingly.


author: Pound, J.

text:
    In the Matter of Proving the Will of Sarah A. Delmar, Deceased. Henry F. Barnes et al., Appellants; The National City Bank of New York et al., Respondents.
    Will — probate denied for testamentary incapacity — where evidence is conflicting Appellate Division should not reverse and direct probate but should grant new trial — meaning of phrase “ sound and disposing mind and memory ” — will should not, as matter of law, be admitted to probate where undisputed facts tend to show that testatrix did not understand situation of her property or general effect of instrument — evidence requiring submission to jury.
    1. Where the evidence on the trial of objections to the probate of an instrument, offered as the last will of a deceased testatrix, permits the triers of fact to draw conflicting inferences as to her testamentary capacity, the Appellate Division should not reverse on the law a decree of the Surrogate’s Court denying probate, and direct probate of the will, but should send the ease back for a new trial.
    2. By “ sound and disposing mind and memory ” is meant that the mind of testatrix as to its thinking and judging powers, at the time of executing her last will, must be clear enough to be capable of interfering with the disposition of the estate by a prior will with some degree of judgment and discretion. The testatrix must retain sufficient active memory to collect in her mind without prompting the necessary elements of the business to be transacted and to hold them a sufficient length of time to understand their relations to each other and to form some rational judgment in relation to them.
    3. The law jealously guards the right of a person to dispose of his property by will, whatever his condition of health may be, but there comes a time when the ordinary death-bed will must be submitted to careful scrutiny to determine whether it meets the tests of testamentary capacity, and, where the undisputed facts tend to establish that by reason of failing memory testatrix did not understand the situation of her property or the general effect of the instrument executed by her, the will in question should not, as matter of law, be admitted to probate.
    4. Evidence that presents a picture of a dying woman unable to recall the disposition she had made of her property by a prior will and unable to form and express her will as to the disposition of her residuary estate does not necessarily or by reasonable inference lead to the conclusion that her testamentary intention was that she should die intestate as to a considerable portion of her estate, and where such was the effect of the instrument executed by her, the evidence should be submitted to the decision of a jury.
    (Argued May 3, 1926;
    decided May 25, 1926.)

      Matter of Delmar, 214 App. Div. 500, modified.
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 18, 1925, which reversed a decree of the New York County Surrogate’s Court, entered upon a verdict, denying probate of a paper propounded as the last will of Sarah A. Delmar, deceased, and remitted the matter to the Surrogate’s Court with a direction for probate.

      George Gordon Battle for appellants.
    If the reversal of the Appellate Division was actually upon questions of fact the failure to grant a new trial to contestants was error in law. (Weigand v. United Traction Co., 221 N. Y. 34; Gregonis v. Philadelphia & Reading Coal & Iron Co., 235 N. Y. 152; Gressing v. Musical Instrument Sales Co., 222 N. Y. 215; Marks v. Cowdin, 226 N. Y. 138; Gilhooley v. Burghard, 225 N. Y. 445; Meisle v. N. Y. C. & H. R. R. R. Co., 219 N. Y. 317; Middleton v. Whitridge, 213 N. Y. 499; Constantino v. Watson, 219 N. Y. 443; Junkermann v. Tilyou, 213 N. Y. 404; Maguire v. Barrett, 223 N. Y. 49; Queeney v. Willi, 225 N. Y. 374.) The opinion of the Appellate Division is not justified by the evidence. (Matter of Seagrist, 1 App. Div. 615; Hagan v. Sone, 174 N. Y. 317.) A death-bed will should be carefully scrutinized. (Kingsley v. Blanchard, 66 Barb. 325; Matter of King, 89 Misc. Rep. 641; Barley v. Barley, 3 Bradf. 49; Matter of Murphy, 48 App. Div. 216; Matter of Lewis, 81 Hun, 213; Matter of Wheeler, 5 Misc. Rep. 279; Matter of Williams, 141 N. Y. 572; Matter of Mooney, 73 Misc. Rep. 318; Matter of Elster, 39 Misc. Rep. 70; Matter of

      Eysaman, 113 N. Y. 62; Matter of Bowles, 37 Misc. Rep. 566; Matter of Goodwin, 95 App. Div. 186.)

      Robert McLeod Jackson and H. Victor Crawford for respondent.
    The question before this court is whether or not there was more than a mere scintilla of evidence tending to show .that Sarah A. Delmar was incompetent to make her will. (Matter of Barney, 185 App. Div. 782; Matter of Wolf, 196 App. Div. 722; Matter of Eno, 196 App. Div. 131.) The true criterion is ability to understand the will in question. (Stewart’s Executor v. Lispenard, 26 Wend. 255; Matter of Foreman, 54 Barb. 287; Martin v. Martin, 15 Grant’s Ch. [U. C.] 586; Matter of Mabie, 5 Misc. Rep. 179; Matter of Carpenter, 145 N. Y. Supp. 365; Children’s Aid Society v. Loveridge, 70 N. Y. 387; McLaughlin v. McLaughlin, 26 Can. S. C. 646; Menzies v. White, 9 Grant’s Ch. [U. C.] 574; Thomson v. Torrance, 28 Grant’s Ch. [U. C.] 253; Watts v. Bullock, 11 Ky. 252; Matter of McClear, 214 App. Div. 682; Matter of Seagrist, 1 App. Div. 615; 153 N. Y. 682; Matter of McGraw, 9 App. Div. 372; Matter of Knight, 87 Misc. 577.)

      Robert S. Conklin for Fanny P. Evans, respondent.
    The testatrix, at the time of the execution of the will, was possessed, of testamentary capacity, and there is no evidence to the contrary. (Matter of McClear, 214 App. Div. 682.) The events attendant upon the drafting of the will and the conditions described are insufficient to establish testamentary incapacity. (McLaughlin v. McLaughlin, 26 Can. S. C. 646; Watts v. Bullock, 11 Ky. 252; Matter of Burnham, 201 App. Div. 621; 234 N. Y. 475; Dobie v. Armstrong, 27 App. Div. 520; 160 N. Y. 584; Matter of Eno, 196 App. Div. 131; Matter of Loehr, 187 App. Div. 957; Pettit v. Pettit, 149 App. Div. 485; Delafield v. Parish, 25 N. Y. 9; Matter of Dunn, 184 App. Div. 386; Matter of Snelling, 136 App. Div. 515;
      Matter of Heaton, 224 N. Y. 22; Calligan v. Haskell, 143 App. Div. 574; Matter of Clapp, 97 Misc, Rep. 576.)
   Pound, J.

The contest rests solely on the testamentary capacity of testatrix. If the evidence, which is not conflicting except for the opinion of an expert witness who never saw the deceased, permits the triers of fact to draw conflicting inferences on this point, the Appellate Division should not have reversed on the law and directed the probate of the will but should have sent the case back for a new trial. (Hagan v. Sone, 174 N. Y. 317; Middleton v. Whitridge, 213 N. Y. 499, 503; Matter of Burnham, 234 N. Y. 475. And see Matter of Eno, 196 App. Div. 131, 155.) The question for us is, therefore, whether the undisputed evidence establishes as matter of law that testatrix was of sound and disposing mind and memory when she executed the instrument now offered for probate.

Testatrix was a woman of about seventy-five years of age. She had property of the value of upwards of $152,000. She had been active in the management of her own affairs and was normally possessed of a sound and vigorous mind. At the time of the execution of the will in question she was in the last stages of Bright’s disease and chronic myocardial degeneration. She died two days thereafter. Unquestionably she was to some degree capable of forming and expressing .wishes as to the disposition of a portion of her property. Unquestionably her mental and physical faculties were greatly impaired. She was “ on the borderland between consciousness and insensibility.” (Matter of Eysaman, 113 N. Y. 62, 70.) She was unable to fix her attention continuously on the business of making the will and as a result the will disposed of less than one-half her property although by a prior will, which the present revoked, she had fully disposed of it. The law jealously guards the right of a person to dispose of his property by will, whatever his condition of health may be, but there comes a time when the ordinary death-bed will, prepared when the testator is sinking slowly but surely to his end, must be submitted to careful scrutiny to determine whether it indeed meets the tests of testamentary capacity. Submitted to such tests, it seems clear that the will in question should not ■ as matter of law have been admitted to probate.

The following undisputed facts tend to establish that by reason of failing memory she did not understand the situation of her property or the general effect of the instrument executed by her.

When the lawyer who came to draw her will at the request of one of her friends and who was also a subscribing witness, asked if she was willing to make her will she said “ yes ” but she also said: It is not necessary. I have a will already made.” This was a fact. A prior will had been executed by her on November 22, 1906, which disposed of her entire estate. She undertook to tell that the will would be found in a trunk but a search revealed only a blank form of will. She said: Oh, it is not filled,” and added how stupid of me.” She then went on to give her instructions, largely in response to questions asked her by the lawyer. She thereupon indicated her desire to give two annuities of $50 per week, one to a sister and one to a nephew, for life, and several bequests amounting in the aggregate to $45,000. While giving these instructions she would drop into periods of deep sleep from which she would be aroused with some difficulty.

When it came to the disposition of her residuary estate the lawyer testified as follows:

Q. When you mentioned to her about the residuary clause, that is the clause which provides for the rest of the estate, is it not? A. Yes.
“ Q. That is a clause that is put in a will by every careful lawyer to provide for the balance of the estate that is not covered by the will? A. Yes.
Q. And you asked her what she was going to do about that? A. Yes.
“ Q. Tell us the language that you used, please? A. I said Mrs. Delmar, what do you want done with the money that is left over after these annuities have been satisfied, something like that. I cannot tell you the exact words. And she said there wont be any money left over. Well, I said, yes there will, because they get this money for life and when they are finished with the annuities there will be the principal. Well, she said, they are to have $50 a week for life and it will be used up, and I said to her, if you want it that way then you must say how long; no, she did not say how long, but they would have $50 a week until used up, and then I said, you must say how long they are to have the $50, unless there is to be a residue, and she said it is for fife, and she was tired.
“ Q. She was tired? A. Yes, she was tired, and I think it was her fatigue that kept her from understanding it.
“ Q.. Did you say anything further to her? A. I said it to her twice and the Doctor tried and the Doctor said, you cannot get this across.”

And the doctor, who was in attendance and was also a subscribing witness, testified as follows:'

“ Q. Doctor, what do you remember about the attempt on Mr. Jackson’s part to provide for the residuary, to get instructions on the residuary clause from her? A. He said, Mrs. Delmar, what is to become of the remainder of your estate, the residual estate, and she looked at him. She was awake, and then she looked at me as though she were mystified and he repeated the question two or three times, and thinking that she heard me better and was more used to me, I repeated the question to her and she would shrug her shoulders this way as if, I do not comprehend or it does not matter or something like that. At any rate, he was not able to get over to her what was intended; at least, she did not respond.

And on cross-examination he testified:

“ Q. When it came down to what is known as the residuary clause, the clause disposing of her remainder of her estate, tell us what she said about that? A. He brought up that question. He said, Mrs. Delmar, what is to become of the residuary part of your estate. She looked at him blankly and he repeated the question two or three times and waited a little bit, and then I repeated the question for him and she could understand me better perhaps. She looked at me and threw out her hands as though she did not comprehend or did not care or what not. She was apparently not able to take in the thing or else she did not want to.
“ Q. Mr. Jackson testified that he tried to explain to her the principal from which these incomes, these two annuities would be derived, and that principal would have to be disposed of as part of her residuary estate. Do you remember his talking to her about that? A. Not in so many words.
“ Q. Nothing said? A. No, I do not. I remember though as a matter of fact, we lost a good deal of time trying to make her see this.
“ Q. Apparently he could not get it across to her? A. No.
Q. And that was your opinion at that time that he could not get it across? A. Yes, I think at the end of it I said I did not believe you will make her understand this tonight.
“ Q. You told him that? A. I think she is too tired, I told him. I think she needs rest right now.
“ Q. And it was after that that her signature was put on the will, is that right? A. After what?
“ Q. After that incident about the remainder of the estate? A. After she could not comprehend what he said to her.”

We thus have a picture of a dying woman unable to recall the disposition she had made of her property by a prior will and unable to form and express her will as to the disposition of her residuary estate.

"Clearly this evidence does not necessarily or by reasonable inference lead to the conclusion that the testamentary intention of the testatrix was that she should die intestate as to a considerable portion of her estate and that such was the effect of the instrument executed by her. Assuming that she had no debts, the interest on the residuary estate would probably be adequate to pay the annuities so that the undisposed of residue was approximately $100,000. Her mind was a blank in regard thereto and to the disposition thereof. It is not a question of some evidence merely. (Dobie v. Armstrong, 160 N. Y. 584.) It was evidence which should have been submitted to the decision of a jury.

What is meant by “ sound and disposing mind and memory? ” The answer has been frequently given. The mind of testatrix as to its thinking and judging powers at the time of executing the instrument proposed for probate must be clear enough to be capable of interfering with the disposition of the estate by a prior will with • some degree of judgment and discretion. The testatrix must retain sufficient active memory to collect in her mind without prompting the necessary elements of the business to be transacted and to hold them a sufficient length of time to understand their relations to each other and to form some rational judgment in relation to them. (Delafield v. Parish, 25 N. Y. 9, 44; Matter of Will of Snelling, 136 N. Y. 515; Matter of Heaton, 224 N. Y. 22, 29.)

Judged by this test the evidence is not conclusive from which it may be inferred that she had “ a fixed wish and judgment in the disposition of her property ” or had any clear idea of the amount of her residuary estate or the effect thereon of the execution of the will and the prior disposition of it. Obviously she had had in mind some changes to be made in the legatees and in the amounts of their legacies. As a codicil the instrument might have been efficacious, but that testatrix for an instant contemplated that more than one-half of her estate should go to her heirs at law or next of kin nowhere appears with sufficient probative force to be established as matter of law by any test as to the sufficiency of evidence that might be applied.

The order of the Appellate Division should be modified so as to grant a new trial, with costs to abide the event.

His cock, Ch. J., Cardozo, McLaughlin, Crane and Lehman, JJ., concur; Andrews, J., absent.


text:
    Pauchogue Land Corporation, Respondent, v. Long Island State Park Commission et al., Appellants.
    Eminent domain — real property — constitutional law — State — pleading — appropriation of private property to public use — right of owner to just compensation — pledge of faith of State may be sufficient — State Park Commission without authority to appropriate lands for park purposes in default of appropriation therefor — title of State to land may not be tested in action brought against it or its officers without its consent but legality of acts of officers may be tested and they held responsible for illegal acts — no cause of action stated against Commission or its members as such — cause of action stated against members individually to restrain acts without warrant of law and to recover damages occasioned thereby.
    1. The power of the State to appropriate private property for public use can be held subject to no further limitation than that the statute under which the property is taken shall recognize, on the taking of the property, the absolute right of the owner to just compensation and make provision for the prompt determination and payment of such compensation from the public funds, and it may be assumed that compensation need not be specifically provided by an appropriation of moneys therefor before the property is appropriated. The faith of the State may be ample security if it opens the door to the claimant to obtain the obligation of the State to pay.

      (Argued May 4, 1926;
    decided May 25, 1926.)
    2. The defendant, Long Island State Park Commission, therefore, might have been authorized to appropriate lands for park purposes and the claimant relegated to the Court of Claims for its compensation, but in this action to have adjudged void and to cancel and annul a seizure by the Commission of plaintiff’s land and to enjoin further interference therewith, a contention that such power had been expressly conferred on it by sections 16 to 19 of chapter 112 of the Laws of 1924 and by section 59 of the Conservation Law cannot be sustained. An examination of those and other statutory and constitutional provisions applicable, shows that the power to appropriate land as well as to agree on compensation depends on an appropriation of money measurably adequate to justify the Commission in proceeding summarily; that the construction of the act of 1924 urged by the defendants is untenable; and that section 16 and following of that act and section 59 of the Conservation Law are connected with and limited by and dependent on section 8 of the act of 1924 which defines the general powers of the Commission and provides that it may acquire real estate for park purposes “ from moneys or property on hand or appropriated for its use.” This is at once a grant of power and a limitation on the exercise of such power.
    3. The title of the State cannot be tested but the legality of the acts of the State’s agents may be tested. The complaint, therefore, which demands judgment that the acts of the defendants be adjudged void and in violation of the rights of the plaintiff under the laws and Constitutions of the State and of the United States; that the action of the defendants be judicially canceled and annulled; that the defendants be enjoined from further interference with the property and plaintiff’s right thereto; and that the plaintiff have judgment for the damages which it has sustained does not state a cause of action against the Long Island State Park Commission nor against the members thereof as such. As against them the suit is against the State itself and cannot be maintained. It states a cause of action against the individual defendants. The appropriation of and entry on the lands were illega when made and, so far as the individual defendants seek to justify their acts by such appropriation and entry, they acted without warrant of law. They may, therefore, be restrained from further waste of the lands in question and held liable for the damages, if any, sustained by the plaintiff by their acts in taking and withholding possession. But if an appropriation of money is made available a lawful reappropriation of the lands will terminate their illegal acts and the action will be one for damages only.
    . Pauchogue Land Corp. v. Long Island State Park Comm., 215 App. Div. 816, modified.

      Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 22, 1926, which affirmed an order of Special Term denying a motion by defendants for judgment on the pleadings.
    The following questions were certified: “ 1. Does it appear from the face of the amended complaint herein that the Supreme Court has jurisdiction of the subject of the action? 2. Does the amended complaint herein state facts sufficient to constitute a cause of action? ”

      Walter H. Pollak, Carl S. Stern, George D. Carrington and G. Frank Dougherty for appellants.
    Plaintiff’s contention that for a valid taking there must be an existing appropriation involves a plain misconception of settled constitutional principles. (Crozier v. Krupp, 224 U. S. 290; Jerome v. Ross, 7 Johns. Ch. 315; Matter of Mayor, etc., 99 N. Y. 569; Van Etten v. City of New York, 226 N. Y. 483; Talbot v. Hudson, 82 Mass. 417; Polly v. Saratoga, etc., R. R. Co., 9 Barb. 448; U. S. v. North American Co., 253 U. S. 331; Klein v. Maravelas, 219 N. Y. 383; Kahlen v. State of N. Y., 223 N. Y. 383.) Section 8 of the Long Island Park Act has no application to the acquisition of title. (People v. Adirondack Railway Co., 160 N. Y. 241; Matter of Commissioners State Reservartion, 37 Hun, 537; Alexander v. Alexander, 85 Va. 353; Sage v. Brooklyn, 89 N. Y. 189.) The fiscal provisions of the State Constitution and section 35 of the Finance Law afford no support to plaintiff’s case. (Kirby v. State of N. Y., 68 Misc. Rep. 626.) The courts are without jurisdiction to give relief, and it is immaterial that the suit in form is not against the State but against the officers. (Sanders v. Saxton, 182 N. Y. 477; Belknap v. Schild, 161 U. S. 10; Switzer v. Commissioners, 134 App. Div. 487; Saranac T. & L. Co. v. Roberts, 195 N. Y. 303; Jacobus v. Colgate, 217 N. Y. 235; Matter of Berkovitz, 230 N. Y. 261; Red Cross Line v. Atlantic Fruit Co., 264 U. S. 109; Howarth v. Howarth, 67 App. Div. 354; People v. Inman, 197 N. Y. 201; People v. Ladew, 237 N. Y. 413; Governor of Georgia v. Madrazzo, 1 Pet. 110; Ex parte Madrazzo, 7 Pet. 627; Hopkins v. Clemson College, 221 U. S. 636.)

      Charles H. Tuttle, Joseph S. Auerbach, William H. Robbins and Martin A. Schenck for respondent.
    The question presented by this complaint is not as to the jurisdiction of the court but as to the jurisdiction of the defendants. Their acts, if done by private individuals, would manifestly be void in law and actionable. Hence, unless their mere claim to have acted in an official capacity places them above the law and beyond its reach, the Supreme Court as a constitutional court has the right to determine whether the statutes which they cite gave them power and jurisdiction to do the acts alleged in the complaint. This action is not against the State but against these defendants. It seeks as against them redress for injurious acts which were illegal and in excess of power. (Hover v. Barkhoof, 44 N. Y. 113; Willy v. Mulledy, 78 N. Y. 310; United States v. Lee, 106 U. S. 196; Matter of Continental G. Corp. v. Craig, 240 N. Y. 354; People ex rel. Rand v. Craig, 231 N. Y. 216; Bastian v. State, 18 N. Y. Ct. of Cl. Rep. 131; Litchfield v. Bond, 186 N. Y. 66; Halfmoon Bridge Co. v. Canal Board, 213 N. Y. 160; Town of Easton v. Canal Board, 216 N. Y. 486; Rockaway Pacific Corp. v. Stotesbury, 255 Fed. Rep. 345; Hopkins v. Clemson College, 221 U. S. 636; Pennoyer v. McConnaughy, 140 U. S. 1; Philadelphia Co. v. Stimson, 223 U. S. 605; Sloan Shipyards v. U. S. Fleet Corp., 258 U. S. 549; Herr v. Central Kentucky Lunatic Asylum, 28 L. R. A. 394; Joos v. Illinois National Guard, 257 Ill. 138; Kirwan v. Murphy, 83 Fed. Rep. 275; Welsh v. Fisk, 139 Ind. 637; 2 High on Injunctions, § 1309; Loony v. Craig, 245 U. S. 178.) The acts of the defendants in seizing land of a value of upwards of $800,000 were in excess of their jurisdiction and actionable, because violative of subdivision 7 of section 1 of chapter 603 of the Laws of 1924, which placed a limit of $200,000 as the sum available to the Long Island State Park Commission “ for the acquisition of lands.” Moreover, at the time of the seizure of the Taylor estate, even this appropriation of $200,000 had been almost exhausted in acquiring other properties. (Matter of City of Rochester, 102 App. Div. 181.) The acts of the defendants were without jurisdiction and actionable, because in violation of the very act which created them. (Laws of 1924, chap. 112.) That act confined the defendants to their appropriations, and expressly limited their power of acquiring property to its acquisition “ from moneys or property on hand or appropriated for its use.” (§ 8.) The defendants had"neither. (People ex rel. Rand v. Craig, 231 N. Y. 216; Matter of Continental G. Corp. v. Craig, 240 N. Y. 354, 362.) The acts of the defendants were also without jurisdiction and actionable, because in violation of section 35 of the State Finance Law (as amended and re-enacted by chapter 613 of the Laws of 1920). This section, as part of a general law of the State governing all boards and commissions, was as much applicable to the Long Island Park Commission as if expressly incorporated in the act creating the Commission. (County of Orange v. Ellsworth, 98 App. Div. 275; County of Orange v. Storm King Stone Co., 180 App. Div. 208; People ex rel. Rand v. Craig, 231 N. Y. 216.) The acts of the defendants were without jurisdiction and actionable, because in violation of section 21 of article III of the State Constitution. (People ex rel. Western Union Tel. Co. v. Roberts, 30 App. Div. 78; 156 N. Y. 693; People ex rel. Hopkins v. Board of Supervisors, 52 N. Y. 556; Rockaway Pacific Corporation v. Stotesbury, 255 Fed. Rep. [C. C. A.] 345.) The acts of the defendants were without jurisdiction and actionable, because in violation of sections 2 and 4 of article VII of the State Constitution. These sections forbid the creation of obligations of the State which require action by future Legislatures-to provide for payment thereof. (People ex

      rel. Hopkins v. Board of Supervisors, 52 N. Y. 556.) The acts of the defendants were also without jurisdiction and actionable, because in violation of the “ just compensation ” and “ due process ” clauses of the Federal and State Constitutions. (Bloodgood v. Mohawk & Hudson R. R. Co., 18 Wend. 9; Jerome v. Ross, 7 Johns. Ch. 315; Western Union Tel. Co. v. Penn. R. R. Co., 195 U. S. 540; Sweet v. Rechel, 159 U. S. 380; Traction Co. v. Mining Co., 196 U. S. 239; Rockaway Pacific Corp. v. Stotesbury, 255 Fed. Rep. 345; Litchfield v. Bond, 186 N. Y. 66; Sage v. Brooklyn, 89 N. Y. 189; Matter of Mayor, etc., of City of New York, 99 N. Y. 569; State Water Supply Comm. v. Curtis, 192 N. Y. 319; People ex rel. N. Y. C. & H. R. R. R. Co., 206 N. Y. 274.) The acts of the defendants were also without jurisdiction and actionable, because they failed to comply with the requirement of section 18 of the act creating the Long Island State Park Commission (Laws of 1924, chap. 112), that before acquisition by condemnation or appropriation the commissioners shall attempt to reach an agreement with the owners as to the property to be acquired and the compensation to be paid therefor. (City of Long Beach v. Long Beach Water Co., 209 App. Div. 902; Dyckman v. Mayor, etc., of N. Y., 5 N. Y. 434; Matter of City of Rochester, 82 Misc. Rep. 598; Matter of Bronx Parkway Commission, 176 App. Div. 717.) The defendants’ claim that section 59 of the Conservation Law constitutes a general authority to utilize the general funds of the State and to contract indebtedness on behalf of the State to any extent the particular commission may see fit, is wholly indefensible. (People ex rel. Rand v. Craig, 231 N. Y. 216; County of Orange v. Ellsworth, 98 App. Div. 275; Matter of Continental G. Corp. v. Craig, 240 N. Y. 354.)
   Pound, J.

The following is a summary of the complaint: On December 4, 1924, the plaintiff owned in fee and possessed 1,500 acres (with the buildings thereon) in the town of Islip, Suffolk county, and known as the Taylor estate. The property was worth in excess of $800,000. On that day the defendants, claiming to act as the Long Island State Park Commission, undertook by ex parte action to seize forthwith both the title to and the possession of this land. The title they claimed to expropriate by their own ex parte act in filing in the Secretary of State’s office a so-called notice of appropriation directed to- the plaintiff and asserting that the land is appropriated by the People of the State of New 'York for public and State park purposes pursuant to Chapter 112 of the Laws of 1924 and Section 59 of the Conservation Law.” The possession they seized by immediately sending State troopers, who by force put the plaintiff off the property and have maintained exclusive possession ever since.

At the time of these ex parte acts, the defendants did not have the means to pay the fair market value of the property, and did not have on hand or appropriated to their use moneys or property to pay its worth. On the contrary, the legislative appropriation of $200,000 to their use for the acquisition of land had theretofore been almost exhausted, and they had received nothing from any other source. No such expenditure had been authorized in the annual budget. Defendants had no means wherewith to make an offer of purchase.

The defendants forthwith exercised acts of dominion over the property; began changing its nature and destroying portions thereof; and they intend and are about to raze the buildings, cut timber and convert the place into a park, to the plaintiff’s irreparable injury. Their adverse possession of the property depreciates it in value and renders it unmarketable.

The defendants seized the property with knowledge and notice that their action was illegal and that they were destroying the lawful rights of the owner.

The complaint demands judgment that the acts .of the defendants be adjudged void and in violation of the rights of the plaintiff under the laws and Constitutions of the State and of the United States; that the action of the defendants be judicially canceled and annulled; that the defendants be enjoined from further interference with the property and plaintiff’s right thereto; and that the plaintiff have judgment for the damages which it has sustained.

The defendants maintain (a) that their acts were the acts of the State of New York and that they are immune from suit by reason thereof, and (b) that they proceeded within the limits of the act creating the Long Island State Park Commission (L. 1924, ch. 112) in acquiring the lands in question for park purposes and that they might enter upon and take title to the lands in question although no appropriation of moneys to pay therefor had been made by the Legislature. The sections under which they purport to; act are sections 16-18 and section 21 of the Long Island Park Act and section 59 of the Conservation Law (Cons. Laws, ch. 65) which contain a plan for acquiring lands by giving jurisdiction to the Court of Claims to hear claims for the value of lands taken and render judgment therefor. It is thereby provided: Upon filing in the office of said commission, and in the office of the comptroller, a certified copy of the judgment of the court of claims, and a certificate of the attorney-general that no appeal from such judgment has been, or will be taken, by the State, or if an appeal has.been taken, a certified copy of the final judgment of the appellate court affirming in whole or in part the judgment of the court of claims, the comptroller shall issue his warrant for the payment of the amount due the claimant by such judgment, with interest from the date of the judgment until the thirtieth day after the entry of such final judgment, and such amount shall be paid by the treasurer.”

The first question that is presented is as to the jurisdiction of the court over the subject of the action. So far as the purpose of the action is to try the title of the State, the State may not be sued without its consent and so far as the action is an action against the State for that purpose, an action against the State Park Commission cannot be maintained. (Sanders v. Saxton, 182 N. Y. 477; Saranac Land & Timber Co. v. Roberts, 195 N. Y. 303, 321.) “ But though the State cannot be subjected to hostile litigation at the instance of the individual, that immunity is not possessed by its officers, who can be held responsible for illegal trespasses or torts on the rights of an individual, even though they act or assume to act under the authority and pursuant to the directions of the State.” (Sanders v. Saxton, supra.) In that case it was held that an action to quiet title will not he against the State or its grantee on a tax sale at the suit of one in possession of the real property. But it was pointed out that actions to restrain the commission of unlawful acts by the State or government officers for which the command of their principal was no justification or to recover property held equally without warrant of right were clearly to be distinguished from the action before the court. If the plaintiff in the Sanders case had been ejected from possession by the State or its grantee he might have indirectly tested the title of the State by actions in the courts against the individuals claiming to act under authority of the State. So here the individual defendants are subject to suit to restrain them from wasting plaintiff’s lands under claim of authority from the State. The validity of their acts may thus be tested. The defendants say: The State is the sovereign and the sovereign can do no wrong.” But the sovereign’s agents are not above the law. The illegality of the official’s act does not place him under the immunity of the sovereign. He must justify himself by showing that he acted rightfully as a public officer. (Litchfield v. Bond, 186 N. Y. 66; Saratoga State Waters Corp. v. Pratt, 227 N. Y. 429, 447; Tindal v. Wesley, 167 U. S. 204; U. S. v. Lee, 106 U. S. 196.) So far as the complaint states a cause of action against the individual defendants who are the members of the State Park Commission, the law creating the Commission furnishes no shield except for acts done in conformity with the law. So far as the action is against the State, the Commission and its members as such, it will not he. The title of the State cannot be tested but the legality of the acts of the State’s agents may be tested.

The power of the State to appropriate private property for public use can be held subject to no further limitation than that the statute under which the property is taken shah recognize on the taking of the property the absolute right of the owner to just compensation and make provision for the prompt determination and payment of such compensation from the public funds. (Kahlen v. New York, 223 N. Y. 383, 389.) We may assume that compensation need not be specifically provided by an appropriation of moneys therefor before the property is appropriated. The faith of the State may be ample security if it opens the door to the claimant to obtain the obligation of the State to pay. It may be assumed that it will faithfully meet its obligations thus established. A judgment of the Court of Claims assessing damages on which the Comptroller shall issue his warrant for payment of the amount due the claimant with interest to be paid by the Treasurer may sufficiently guarantee the constitutional right to just compensation. Otherwise, the State might not be able to act in an emergency to take property for purposes of public defense or health or other great public needs. No needless limitations should be placed on the power of the State. The Long Island State Park Commission might have been authorized to appropriate lands for park purposes in the name of the People of the State of New York, and the claimant might have been relegated to the Court of Claims and to the judgment of that court and the warrant of the Comptroller issued thereon for his just compensation. The defendant j contend that this power has been expressly conferred on it by the act, sections 16-19, and the Conservation Law, section 59. The question is whether this unqualified grant of power is found within the four corners of the act in question.

No great emergency existed for the taking of the lands and we need have no hesitation in restraining the Commission from precipitate action. The taking might well have been deferred until the State had actually made some provision for the payment of the compensation therefor, had given some indication of the limit of authority vested in the Park Commission. If its contention is tenable, the conclusion logically follows that it has a “ charter wide as the wind withal ” and it might seize for park purposes all the lands in Suffolk and Nassau counties, and send the claimants to the Court of Claims to establish their damages.

The Park Bond Issue Act (L. 1924, ch. 602) was in effect by the vote of the People before the land in question was seized. By its terms $1,000,000 was to be available for the development of a State Park system in Long Island but only after appropriation or appropriations therefor from the Legislature.” No mandate to the Legislature to appropriate appears, but only a grant of power to appropriate. Article III, section 21, of the State Constitution expressly provides: No money shall ever be paid out of the treasury of this State or any of its funds, or any of the funds under its management, except in pursuance of an appropriation by law.” No appropriation was made and no funds were available until after the taking of the lands in question the sum .of $1,000,000 was appropriated by Laws of 1926, chapter 16. It follows that no appropriation was available for the acquisition of the lands in question at the time the Commission attempted to acquire title thereto.

We come next to a question of statutory construction rather than one of constitutional law. Section 8, Laws of 1924, chapter 112, defines the general powers of the Commission. It shall have power from moneys or property on hand or appropriated for its use to acquire and make available for use as public parks or parkways all such real estate as is or may come under its jurisdiction.” This is at once a grant of power and a limitation on the exercise of such power. It may acquire real estate for park purposes from money on hand or appropriated for its use. No other grant of general power is contained in the act. Section 16 defines how lands may be acquired, i. e. “ by gift, agreement, condemnation or entry.” This is not a distinct and specific grant of power but merely a statement of the manner in which powers granted shall be exercised. Section 17 provides specifically that when acquisition is by agreement the compensation agreed on shall be paid “ out of the moneys made available as in this act provided,” i. e., bymoneys on hand or appropriated for its use. Property may be acquired by appropriation but only subject to a significant limitation contained in section 18 of the act which provides: If the said commission shall be unable to agree with the owners of or other persons having an interest in said real estate, or if by reason of legal incapacity, or absence of such owners or persons interested as aforesaid, or if for any other reason, no agreement can be made for the purchase of said real estate, the same may be from time to time acquired by the commission by condemnation proceedings or by appropriation in the name of the state, * * *.”

When the parties are competent to agree, the power to acquire by agreement is plainly predicated on negotiations as to the compensation and moneys available to pay such compensation are the limit of the Commission’s power to negotiate. The right to acquire by appropriation exists only where the Commission is unable to agree with the owners or for some other reason no agreement can be made for the purchase of the real estate. The only basis of the right of appropriation is the inability to agree as to the purchase price when the Commission has funds to pay if the compensation were agreed on. No funds, no negotiations; no negotiations, no appropriation. Such is the scheme outlined in the statute. Patently it may not in reason be said that the power to acquire lands by. purchase is less than the power to acquire by appropriation when the two are thus inseparably linked together. It follows inevitably that the power to appropriate land as well as to agree on compensation depends on an appropriation of money measurably adequate to justify the Commission in proceeding summarily; that the construction of the act urged by the defendants is untenable; and that section 16 and following of the act and section 59 of the Conservation Law are connected with and limited by and dependent on section 8 of the act.

It by no means follows that if the amount of money appropriated by the Legislature is inadequate fully to pay the judgment of the Court of Claims, compensation is not sufficiently provided for to meet constitutional demands and that an act of appropriation of lands is, therefore, ultra vires and . void. The amount appropriated is a qualified limitation upon the power to act. Public officials are presumed to act within their authority and if they in good faith and with authority of law appropriate lands found by the Court of Claims to be of greater value than the amount actually appropriated therefor, the credit of the State may be pledged to meet the deficiency. Otherwise the whole plan of appropriation by entry or condemnation would be dependent on the infallibility of the public officials in estimating the true value of property taken by them for State purposes.

The appropriation of and entry on the lands was illegal when made. So far as the individual defendants seek to justify their acts by such appropriation and entry, it must be held that they acted without warrant of law. They may, therefore, be restrained from further waste of the lands in question and held hable for the damages, if any, sustained by the plaintiff by their acts in taking and withholding possession. But if an appropriation of money is made available a lawful reappropriation of the lands will terminate their illegal acts and the action will be one for damages only.

The complaint does not state a cause of action against the Long Island State Park Commission nor against the members thereof as such. As against them the suit is against the State itself and cannot be maintained. (Saranac Land & Timber Co. v. Roberts, supra.) It states a cause of action against the individual defendants and to that extent both questions should be answered in the affirmative.

The orders should be modified by dismissing the complaint as against theLonglsland State Park Commission and its members as such, and otherwise affirmed, without costs.

Hiscock, Ch. J., Cardozo, McLaughlin, Crane and Lehman, JJ., concur; Andrews, J., absent.

Ordered accordingly.


text:
    Fred Brooks et al., Respondents, v. Robert Wheeler, Appellant.
    Real property — easements — ejectment — appeal — equity— incorporeal hereditament may not be recovered in ejectment — remedy against one who bars right of way is in equity — complaint sufficiently stating cause of action in equity — case tried as action at law must remain so for purpose of appeal — complaint not dismissed nor judgment entered in favor of plaintiff but new trial granted — recitals in deeds of right of way without proof that first grantor had received grant thereof, leaves title questionable — title sufficient against one who asserts no title in himself — award of exclusive right of way proper where no other is shown — owner of fee not excluded from use.
    1. An incorporeal hereditament may not be recovered in ejectment, the proper remedy against one who bars another from possessing and exercising Ms incorporeal rights being in equity, and the point is sufficiently raised, in an action of ejectment, by a motion to dismiss on the ground that the plaintiffs have not shown title to the land. (City of Syracuse v. Hogan, 234 N. Y. 457, explained.)
    (Argued May 10, 1926;
    decided May 25, 1926.)
    2. A complaint alleging that defendant has erected encroachments on plaintiffs’ right of way and asking that he be required to remove them and that plaintiffs have such other and further relief as may be just, is sufficiently broad to sustain an action in equity, but where the method of trial and the practice followed throughout the Mstory of the case placed it on the law side of the court, for the purposes of appeal it must remain there. The theory of the action, however, may be gathered from the complaint and plaintiffs should not be dismissed as they might be if the complaint was drawn as a pleading in a strict action of law. The law may permit a party to abandon the theory on wMch a proceeding has been prosecuted and to return to the theory on which it was commenced. But judgment in favor of plaintiff should not be entered on the evidence herein. On a new trial of the action as one in eqMty defendant may have evidence to meet the issue then presented.
    3. Recitals in deeds going back to the year 1852, purporting to convey a right of way, without proof that the first grantor ever obtained a grant of the easement, leave some question as to plaintiffs’ title, but they have at least color of title sufficient to give them the right to claim ownersMp against defendant who did not show Ms own title or claim adversely to the plaintiffs. . The rule that a plaintiff must recover upon the strength of Ms own title may be even less strictly applied in equity; a weak title may be good as against no title whatever, and it may be held that evidence of a paper title extending back upwards of seventy-five years, together with physical conditions, showing the existence of a lane leading from plaintiffs’ land to the Mghway, is sufficient as against one who asserts no title in himself.
    4. An award to plaintiffs of an exclusive right of way is not a subject of complaint where no other right of way is shown. The owner of the fee is not excluded from the use of the lands in question so long as the right of way is left free and unobstructed.

      Brooks v. Wheeler, 214 App. Div. 147, modified.
    Appeal from a judgment, entered December 8, 1925, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of defendant entered upon a verdict directed by the court and directing judgment in favor of plaintiff.

      Joseph A. McCabe and John E. Mack for appellant.
    The action is in ejectment. A right of way or easement cannot be recovered in such an action. (Child v. Chappell, 9 N. Y. 246; Trustees of South Hampton v. Belts, 163 N. Y. 460; Chism v. Smith, 138 App. Div. 715; Northern Turnpike Road Co. v. Smith, 15 Barb. 355; Wilklow v. Lane, 37 Barb. 244; Stephens v. Meriden, etc., Co., 160 N. Y. 178; Hicks v. British-Am. As. Co., 162 N. Y. 289; Butler v. Frontier Tel. Co., 186 N. Y. 486.) There is no proof of an easement by grant. An easement presupposes a dominant and servient estate and, therefore, an easement cannot be created merely by recitals in the deeds conveying the so-called dominant estate and without proof of a grant from the owner of the servient tenement. (Mayor, etc., v. Law, 125 N. Y. 392; Nellis v. Munson, 108 N. Y. 459; Aubuchon v. N. Y., N. H. & H. R. R. Co., 137 App. Div. 834; Roberts v. Baumgarten, 110 N. Y. 380; People v. State Tax Comrs., 67 Misc. Rep. 509.)

      Elijah T. Russell for respondents.
    The distinction between actions in equity and at law and the forms thereof has been abolished. (Chism v. Smith, 138 App. Div. 715; City of Syracuse v. Hogan, 234 N. Y. 457.) Where the defendant asserts no title it is not necessary for the plaintiff to establish a title with the precision that would be necessary if asserting title against one offered by the defendant. (People v. Tuthill, 176 App. Div. 631; Deering v. Reilly, 167 N. Y. 190; Barson v. Mulligan, 191 N. Y. 306; Dunham v. Townshend, 118 N. Y. 281.)
   Pound, J.

The controversy is over a right of way claimed by plaintiffs solely by virtue of a paper title as appurtenant to their farm of fifty-six acres in the town of North East, Dutchess county, New York. The complaint alleges that defendant has erected encroachments on the right of way and asks that he be required to remove them and that plaintiffs have such other and further relief as may be just. The right of way claimed extends from plaintiffs’ lands to a highway. Defendant put in issue the existence of the right of way.

When the case came on for trial it was tried by jury as an action in ejectment. Plaintiffs offered evidence of their chain of title. Defendant offered no evidence and moved for a dismissal of the complaint on the ground that he has not shown any title to this piece of land.” Decision was reserved. It was understood that both parties asked for the direction of a verdict and it was stipulated that whatever verdict the court will direct will be the same as at the close of the trial. The learned trial justice held that the conveyance whereby plaintiffs claimed title did not describe the right of way and directed a verdict for defendant. Judgment was entered thereon which recited that the action was for ejectment. The Appellate Division held that the descriptions in the deeds are sufficient and must be construed as conveying an easement from plaintiff’s property to the highway over the right of way in question and directed judgment in favor of the plaintiffs.

On this appeal the appellant claims: 1. That this action is one in ejectment and that an incorporeal hereditament such as a right of way or easement cannot be recovered in such an action. 2. That irrespective of the form of the action there is no proof of an easement by grant; that an easement presupposes two distinct tenements, the dominant, to which the right belongs, and the servient, upon which the obligation is imposed, and that, therefore, an easement cannot be created merely by recitals in the deeds conveying the so-called dominant estate and without proof of a grant from the owner of the servient estate.

The rule is elementary that an incorporeal hereditament may not be recovered in ejectment. Plaintiffs were not wrongfully disseized of an actual possession of corporeal property. (Saratoga State Waters Corp. v. Pratt, 227 N. Y. 429, 446.) Defendant’s motion to dismiss on the ground that plaintiffs had not shown title to the land was sufficient to raise the point. The proper remedy against one who bars another from possessing and exercising his incorporeal rights is in equity. City of Syracuse v. Hogan (234 N. Y. 457) does not modify this rule. It was there held that where the title to land is in question defendant has a right to a jury trial.

The complaint is sufficiently broad to sustain an action in equity. The method of trial and the practice followed throughout the history of the case placed it on the law side of the court. For the purposes of this appeal it must remain there. But the theory of the action may be gathered from the complaint and plaintiffs should not be dismissed as they might be if the complaint was drawn as a pleading in a strict action of law. (Stephens v. Meriden Britannia Co., 160 N. Y. 178, 185; Matter of Whitman, 225 N. Y. 1, 12.) The law may permit a party to abandon the theory on which a proceeding has been prosecuted and to return to the theory on which it was commenced. But judgment should not be entered on the evidence herein. Defendant rested on his point of law. On the trial of the action as one in equity he may have evidence to meet the issue then presented.

The question as to the burden of proof must be considered. Plaintiffs did not go back to a common source of title and establish a grant of the right of way from the owner of the land over which the right of way is claimed. They rest on recitals in the deeds forming their chain of title going back to the year 1852, purporting to convey the right of way in question. But there is nothing to show that the first grantor ever obtained a grant of the easement in question. Obviously I may not give title to a right of way over my neighbor’s land merely by conveying it to my grantee. But defendant does not show his own title nor claim adversely to plaintiffs’ title. For all that appears he is a mere intruder. Although there may be some question as to plaintiffs’ title, they had at least color of title. A weak title may be good as against no title whatever. Their title, such as it was, gave them the right to claim ownership. As was stated by Judge Gray in Deering v. Reilly (167 N. Y. 190): ' The rule that a plaintiff in ejectment must recover upon the strength of his own title and not on the weakness of his adversary’s, has its proper application where title is asserted against title; but not to a case where the defendants, making no claim of title, object that the plaintiff has not proved a perfect title against those who might claim adversely.’ ” (Barson v. Mulligan, 191 N. Y. 306, 325.)

The rule may be even less strictly applied in equity and it may be held that evidence of a paper title extending back upwards of seventy-five years, together with physical conditions as here, showing the existence of a lane leading from plaintiffs’ land to the highway, is sufficient as against one who asserts no title in himself.

Appellant makes no point on this appeal that plaintiffs’ deeds do not refer to the strip in question. He assumes for the sake of the argument only ” that the language of the grant does refer thereto. The Appellate Division properly construed the deeds.

Complaint is. made that the plaintiffs are awarded an exclusive right of way. No other right of way is shown and, of course, the owner of the fee is not excluded from the use of the lands in question so long as the right of way is left free and unobstructed.

The judgment should be modified so as to grant a new trial, with costs to abide the event.

His cock, Ch. J., Cardozo, McLaughlin, Crane and Lehman, JJ., concur; Andrews, J., absent.

Judgment accordingly.