author: McLaughlin, J.

text:
    In the Matter of the Estate of Annie E. Tinker, Deceased. Kate D. Bertolini, Appellant; Edward L. Tinker, Individually and as Administrator, et al., Respondents.
    Decedent’s estate — contract — construction of agreement for distribution of estate — • date of determination of value.
    Where an agreement for distribution of the estate of a testatrix, entered into between the parties interested in order to prevent a contest of her will, provides that the estate is to be divided equally between two persons named, defines the term “ net estate ” as what is left after certain deductions are made, clearly contemplates that there shall be an equal division between such persons and indicates that the parties intend that value should be determined as of the date of the death of testatrix, it is not just or equitable that the value of part of the property of the estate should be determined as of the date of the death and that the value of the remainder should be fixed and determined as of a different time. The value of all of the property should be determined as of one date, that of the death of testatrix.

      Matter of Tinker, 217 App. Div. 255, modified.
    (Argued November 15, 1926;
    decided December 31, 1926.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 25, 1926, which unanimously affirmed an order of the Suffolk County Surrogate’s Court construing an agreement providing for the settlement and division of the estate of Annie E. Tinker, deceased.

      Frank M. Avery and Earl A. Barr for appellant.
    The Appellate Division erred in the construction of the Paris agreement. (Wigand v. Bachmann-Bechtel Brewing Co., 222 N. Y. 272; People ex rel. N. Y. Central & Hudson River R. R. Co. v. Walsh, 211 N. Y. 90; 223 N. Y. 313; Schoellkopf v. Coatsworth, 166 N. Y. 77; Friedlander v. Argentor Holding Corporation, 214 App. Div. 242; Russell v, Allerton, 108 N. Y. 288; Wright v. Reusens, 133 N. Y. 298; Fleischman v. Fergueson, 223 N. Y. 235; Grossman v. Schenker, 206 N. Y. 466.)

      Robert P. Griffing and William H. P. Oliver for respond-
    ent.
    The plain language of the agreement supports the construction given by the courts below. (Cream of Wheat Co. v. Crist Co., 166 App. Div. 870; Mecca Realty Co. v. Kellogg Toasted Cornflakes Co., 160 App. Div. 74; Herst v. De Comeau, 31 N. Y. Super. Ct. 590; Lowber v. LeRoy, 4 N. Y. Super. Ct. 202.)
   McLaughlin, J.

Annie R. Tinker, a resident of Suffolk county, died on February 1, 1924. She left her surviving her mother, Louise Larocque Arnold, and her brother, Edward L. Tinker. She attempted to dispose of all of her property by a holographic will which was signed at Naples, Italy, on June 27, 1918.

In the alleged will she bequeathed all her property, both real and personal, for life to her friend Kate Darling Nelson (who has since married and who was referred to on the argument and is designated in the record and in this opinion as Madame Bertolini), with the provision that upon her death the property was to be donated to a benevolent home for “ ladies who have worked for a living.” This donation was to be called, according to the will, “ The Henry C. Tinker Bequest ” and the choice of the home receiving such bequest was to be left entirely to the judgment of Madame Bertolini.

The mother of Annie R. Tinker, Louise Larocque Arnold, and her brother, Edward L. Tinker, were not satisfied with the way in which the property was to be disposed of, or attempted to be disposed of, by the will. After more or less negotiation, in order to prevent a contest, they and Madame Bertolini entered into an agreement called the “ Paris agreement,” which was dated May 30, 1924. The first paragraph recites that the estate of Annie R. Tinker is to be divided equally between the party of the first part, Madame Bertolini, and Louise Larocque Arnold; that Madame Bertolini is to make provision for any charity she may designate and provide funds of not less than $150,000 for the same. There is also a provision that the designated administrators of the estate shall pay all taxes assessed against the estate.

Letters of administration, with the will annexed, were issued to the persons designated under the agreement. They entered upon the discharge of their duties as such and the estate has been so far administered that a final distribution and settlement may now be made.

Paragraph 1 of the agreement provides That the net estate as hereinafter defined of said Annie R. Tinker, deceased, shall be divided equally between the party of the first part and said Louise Larocque Arnold.”

Paragraph 4 of the agreement provides that “ the term net estate ’ as used in the agreement shall be interpreted to mean the residue of the estate after the deduction of all inheritance, income and other taxes, whether foreign, federal, state, county or municipal, and after deduction of all assessments and all expenses of administration and after payment of the debts of the estate.”

A question has arisen as of what time the value of the property of the estate for the purposes of a division shall be determined, whether as of the date of the death of Annie R„ Tinker or as of the time when distribution is made. This question arises from the provisions of paragraph 5 of the agreement and must be answered by the construction put upon that paragraph when construed with the other paragraphs of the agreement. Paragraph 5 reads:

That in making the division of the estate, the 500 shares of stock of the Tinker Realty Corporation which form a part of the estate of the decedent shall be allocated to the shares of Louise Larocque Arnold in so far as the value of the same shall not exceed the one-half of the net estate; and in case the 500 shares should exceed in value one-half of the net estate, the said Edward L. Tinker shall have option to purchase such of the shares as may have been allocated to said party of the first part at their, agreed or appraised value as hereinafter provided, said option to be exercised within six months after the giving of a written notice by any one of the administrators to said Edward L. Tinker that the estate is ready for distribution; and that any payment to the said party of the first part on account of her one-half interest in the estate shall be made in such manner as to include in her one-half interest the real estate and other property of said decedent at East Setauket, Long Island, in said county of Suffolk, in so far as the value of the same shall not exceed one-half of the net estate, the value of the said real estate and said property as well as the value of the said 500 shares for.the purposes of all payments and allocations to be determined as hereinafter provided.”

Paragraph 7 provides:

That in allocating to one or the other of the said Louise Larocque Arnold and said party of the first part, real or personal property in carrying out the terms of paragraph 1 hereof, such real estate or personal property shall be valued by mutual agreement of the said Louise Larocque Arnold and said party of the first part provided that if the said Louise Larocque Arnold and the said party of the first part are unable' promptly to agree upon such valuation then each of the said parties shall forthwith appoint one arbitrator whose determination as to . the value shall be final if they can agree, and in the event of their disagreement, the said two arbitrators shall forthwith appoint an umpire whose decision shall be final. The expense of such arbitration shall be considered an administration expense and the determination of value shall be as of the date of death.”

The surrogate held, and his order has been affirmed by the Appellate Division, as follows:

“ Ordered, that the value of 500 shares of stock of Tinker Realty Corporation, the value of the real estate in East Setauket, Long Island, of which decedent died seized, and the value of other property of the decedent at East Setauket, Long Island, are the only values of assets of this estate to be determined as of the date of the death of decedent.”

I am of the opinion that the way the value of the property of this estate is directed to be divided by the surrogate and approved by the Appellate Division is wrong. The so-called “ Paris agreement,” as above indicated, provides that the estate is to be divided equally between Louise Larocque Arnold and Madame Bertolini. The term net estate ” is defined as what is left of the property after certain deductions are made. The agreement clearly contemplates that there shall be an equal division between such persons.

The value of the stock of the Tinker Realty Corporation and of the property at East Setauket, Long Island, has apparently increased since the date of the death of Annie R. Tinker. For that reason it becomes important to determine whether the value is to be taken as of the date of the death or as of the time when the estate is divided. It does not seem just or equitable to me that the value of a part of the property of the estate should be determined as of the date of the death and that the value of the remainder should be fixed and determined as of a different time. The value of all the property should be determined as of one date — the date of the death of Annie R. Tinker. Paragraph 5 of the agreement, when read in connection with paragraph 7, indicates that the parties intended that the value should be determined as of that time. Paragraph 7 provides how the value is to be ascertained in case the parties cannot agree, and the final sentence of such paragraph declares that “ the determination of value shall be as of the date of death.”

The order of the surrogate and the order of the Appellate Division should, therefore, be modified by directing that the value of all the property of the estate shall be determined as of the date of the death of Annie R. Tinker, and the proceedings remitted to the Surrogate’s Court for action in accordance herewith, with costs to respondents.

His cock, Ch. J., Cabdozo, Pound, Crane, Andrews and Lehman, JJ., concur.

Ordered accordingly.


source: Caselaw Access Project

author: Cardozo, J.

license: Public Domain

text:
    The People of the State of New York ex rel. The Bank of America et al., Trustees under the Will of M. Bell Hazen, Deceased, Appellants, v. State Tax Commission et al., Respondents.
    Decedent’s estate • — ■ tax — income tax — constitutional law — provision of statute that where distribution of income is in discretion of fiduciary income tax shall be imposed upon estate or trust while otherwise it shall be imposed upon each beneficiary, valid — discretion of trustee need not be arbitrary to come within the statute — discretion to fix amount to be paid to one beneficiary affects shares applicable to others amongst whom is to be divided the remainder.
    1. Subdivision 4 of section 365 of the Tax Law (Cons. Laws, ch. 60, amd. Laws of 1922, ch. 466) providing if the distribution of income from an estate or trust is in the discretion of a fiduciary the income tax shall be imposed upon the estate or trust and paid by the fiduciary while in other cases it shall be imposed upon and paid by each beneficiary, is constitutional, and a contention that its effect is to deny to trustees and beneficiaries the equal protection of the law cannot be sustained. The distinction is not arbitrary but corresponds to diverse situations involving the propriety of diverse modes of treatment to insure finality in the determination of the revenues of the State. The Legislature finding an evil to be remedied was at liberty to correct it by classification reasonably adopted, in average result or tendency, to promote the end in view and did not exceed its power when it gave effect to the difference in the imposition of the tax.
    2. A contention that a trustee’s discretion, to come within the statute, must be a discretion to make apportionment at his arbitrary pleasure, cannot be sustained. The statute does not say and it cannot be read to say that the discretion must be such as to relieve the trustee from liability for any possible abuse. 3. Nor is there anything in the point that the discretion, even if it existed as to one beneficiary, did not exist as to others who were to get the income that was left. Discretion could not be exercised to cut down or to enlarge the share applicable to the first beneficiary without affecting at the same time the shares applicable to the others.

      People ex rel. Bank of America v. State Tax Comm., 217 App. Div. 705, affirmed.
    (Argued November 16, 1926;
    decided December 31, 1926.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 4,1926, which confirmed, on certiorari, a determination of the State Tax Commission assessing an income tax upon a testamentary trust.

      William A. Lockwood for appellants.
    Subdivision 4 of section 365 of the Tax Law applies only to trusts in which the discretion is absolute. (Ordway v. Wilcutts, 12 Fed. Rep. [2d] 105; Matter of Flood, 127 Misc. Rep. 797; 216 App. Div. 711; 243 N. Y. 598; 2 Perry on Trusts and Trustees [6th ed.],, 824.) If subdivision 4 of section 365 of the Tax Law be as interpreted by the Tax Commission, it is unconstitutional as imposing taxation which is not equal or uniform and which deprives the trust estate and the beneficiaries thereunder of property without due process of law. (Trew v. Bowers, 12 Fed. Rep. [2d] 625; People ex rel. Clark v. Gilchrist, 243 N. Y. 173; Schlesinger v. Wisconsin, 270 U. S. 230; People ex rel. Farrington v. Mensching, 187 N. Y. 8; State v. Hoboken, 41 N. J. L. 71; Knowlton v. Moore, 178 U. S. 41.)

      Albert Ottinger, Attorney-General (Henry S. Manley of counsel), for respondent.
    The trust is a discretionary trust within the meaning of the Tax Law, as amended by chapter 426 of the Laws of 1922, and its entire net income is taxable to the trustees. (Merchants L. & T. Co. v. Smietanka, 255 U. S. 509; Smietanka v. First Trust & Savings Bank, 257 U. S. 602.) Relators’ aversion to section 365 of the Tax Law, interpreted as above, was not anticipated by the due process clause of the Constitution. (Catherwood v. U. S., 280 Fed. Rep. 241; 291 Fed. Rep. 560; Hecht v. Malley, 265 U. S. 144; Baltzell v. Casey, 1 Fed. Rep. [2d] 29; 3 Fed. Rep. [2d] 428; Appeal of Harkness, 1 B. T. A. 127; Appeal of Ziegler, 1 B. T. A. 186; Burk-Waggoner Oil Assn. v. Hopkins, 269 U. S. 110; Matter of Tracy, 179 N. Y. 501.)
   Cardozo, J.

A testatrix gave the residue of an estate to trustees to apply the income to the support of a sister for life, with a direction that the trustees should have absolute discretion in the maintenance of any home or homes ” for the beneficiary of the trust, and with a direction also to “ provide for her in the most liberal manner, everything which may tend to add to her health, comfort or enjoyment.” “If in any year after the most liberal employment of the income of the trust estate a balance should remain,” it was to be divided in equal shares among three cousins who were named.

The tax returns by the trustees for the years 1923 and 1924 show payments of income for the benefit of the sister, and payments of a large balance to each of the three cousins. The sister, being an incompetent, did not need the whole income of the trust, however generous the exercise of discretion for her benefit. The cousins, who for all that appears are non-residents of the State, were entitled to what was left. Profits from investments earned in each year became accretions to the principal.

The question is whether the income is to be taxed as income of the trust considered as an entity, in which event, of course, the tax is to be paid by the trustees, or taxed as income of the beneficiaries, in which event it will be included as part of their returns, and will be subject to such deductions and exemptions as apply to income generally.

The determination of this question involves the validity and construction of section 365 of the Tax Law (Cons. Laws, ch. 60) and in particular of subdivision 4 of that section, as amended in 1922 (L.- 1922, ch. 426).

Section 365, in imposing a tax upon the income of estates or trusts, includes “ (a) income received by estates of deceased persons during the period of administration or settlement of the estate; (b) income accumulated in trust for the benefit of unborn or ascertained persons or persons with contingent interests; (c) income held for future distribution under the terms of the will or trust; (d) income which is to be distributed to the beneficiaries periodically, whether or not at regular intervals, and the income collected by a guardian of an infant to be held or distributed as the court may direct; and (e) income of an estate during the period of administration or settlement permitted by subdivision three to be deducted from the net income upon which the tax is to be paid by the fiduciary.”

Subdivision 2 of the same section provides that “ the fiduciary shall be responsible for making the return of income for the estate or trust for which he acts, whether such income be taxable to the estate or trust or to the beneficiaries thereof.” In the latter event it is a return for information only. In cases under d and e, “ the fiduciary shall include in the return a statement of each beneficiary’s distributive share of such net income, whether or not distributed before the close of the taxable year for which the return is made.”

Subdivision 3 provides that in cases under a, b and C the tax shall be imposed upon the estate or trust with respect to the net income of the estate or trust and shall be paid by the fiduciary,” subject to prescribed deductions.

Subdivision 4, as amended in 1922, provides as follows:

“ In cases under paragraphs d and e of subdivision one of this section, if the distribution' of income is in the discretion of the fiduciary, either as to the beneficiaries to whom payable or as to the amounts to which any beneficiary is entitled, the tax shall be imposed upon the estate or trust in the manner provided in subdivision three of this section, but without the deduction of any amounts of income paid or credited to any such beneficiary. In all other cases under paragraphs d and e of subdivision one of this section, the tax shall not be paid by the fiduciary, but there shall be included in computing the net income of each beneficiary his distributive share whether distributed or not, of the net income of the estate or trust for the taxable year, or, if his net income for such taxable year is computed upon the basis of a period different from that upon the basis of which the net income of the estafe or trust is computed, then his distributive share of the net income of the estate or trust for any accounting period of such estate or trust ending within the fiscal or calendar year upon the basis of which such beneficiary’s net income is computed. In such cases the income of a beneficiary not a resident, derived through such estate or trust, shall be taxable only to the extent provided in section three hundred and fifty-nine, subdivision three, for individuals other than residents.”

The appellants argue that the effect of this amendment is to deny to trustees and beneficiaries the equal protection of the law (Schlesinger v. Wisconsin, 270 U. S. 230). The statute, we are told, establishes a wholly arbitrary distinction between beneficiaries whose shares of income are determined by a will, and those whose shares vary according to the discretion of trustees. Beneficiaries of the former class take their income subject tó many exemptions and deductions; some may even be non-residents and taxable only upon income from sources within the State (§ 359, subd. 3). Those within the latter class take what is given them depleted by the payment of a tax assessed against the trust.

We think the distinction is not arbitrary, but corre-' spends to diverse situations, involving the propriety, as the Legislature might reasonably believe, of diverse modes of treatment. A report of the special joint committee on taxation and retrenchment, made to the Legislature in 1921, reveals the statutory scheme. Estates and trusts,” it is there stated, “ are subject to the same distinction made in the Federal law between income accruing to an individual beneficiary, and income not presently assignable to a definite beneficiary, and therefore regarded as income of the estate or trust as such.” Public policy demands that the State shall know the income upon which its taxes are to be based. If the determination of the shares is left to the discretion of the trustees, there may be an indefinite period during which the interests of the beneficiaries will be left in suspense. The result, so far as the taxing authorities are concerned, will be very nearly the same as if there were a trust for accumulation (Smietanka v. First Trust & Sav. Bk., 257 U. S. 602). There must be some finality in the determination of the revenues of the State ” (People ex rel. Kohlman & Co. v. Law, 239 N. Y. 346, 351). The return day arrives. The trustee has paid a certain proportion of the income to one of the beneficiaries. He has not yet made up his mind as to the needs of the others. The beneficiaries cannot be taxed until his determination is announced. The only way to reach the income in the interval' is to lay the tax upon the trust. In this particular case, the risk of delay or evasion may be slight, for here the trustees are directed to make their allotment annually. Even so, they might postpone the performance of their duty, and leave the basis of the tax uncertain. The validity of the tax does not depend, however, upon nice distinctions between the peculiarities of one will and another. The Legislature, finding an evil to be remedied, was at liberty to correct it by classification reasonably adapted, in average result or tendency, to promote the1 end in view (Purity Extract & Tonic Co. v. Lynch, 226 U. S. 192, 201; Jacob Ruppert, Inc., v. Caffey, 251 U. S. 264, 290; Village of Euclid v. Ambler Realty Co., 272 U. S. 365). “If it were true that the necessarily general form of the law embraced some innocent objects, that of itself would not be enough to invalidate it or to remove such an object from its grasp ” (Pierce Oil Corp. v. City of Hope, 248 U. S. 498, 500). Taken by and large, income presently appropriated to the use of beneficiaries is in a class separate and apart for purposes of taxation from income to be appropriated thereafter in the exercise of discretion. The Legislature did not exceed its power when it gave effect to the difference in the imposition of the tax.

The statute, being valid, controls the case at hand. The appellants would have us hold that a trustee’s discretion, to come within the statute, must be discretion to make apportionment at his arbitrary pleasure. The trustees under this will are told by the testatrix that they shall have “ absolute discretion ” in determining the sister’s need, yet an exercise of discretion so capricious as to leave the beneficiary in penury would be subject, it is said, to correction by the court. All this may "be assumed without excluding the trust from the operation of the statute. The statute does not say that the discretion must be such as. to relieve the trustees from liability for any possible abuse. It cannot be read as if it said so without ignoring the mischief, the risk of uncertainty or evasion, that led to its enactment. We see nothing in the point that the discretion, even if it existed as to the sister, did not exist as to the cousins, who were to get the income that was left. Discretion could not be exercised to cut down or to enlarge the share applicable to her without affecting at the same time the shares applicable to them.

The order should be affirmed with costs.

His cock, Ch. J., Pound, McLaughlin, Ceane, Andeews and Lehman, JJ., concur.

Order affirmed.


author: Crane, J.

text:
    In the Matter of the Probate of the Will of Frances J. Cook, Deceased. Rachel Barber et al., Appellants; Bank of America et al., as Executors, et al., Respondents.
    Surrogate’s Court ■ — • practice — decedent’s estate — heirs and next of kin may by assignment or release of their interests become as strangers to estate — agreement not to contest will in consideration of advanced payment amounts to agreement to make no further claim against estate — next of kin who take money under such an agreement have no interest to contest the will on any ground — agreement not against public policy — not entitled, as of right, to jury trial of question whether they are entitled to contest —• agreement cognizable only in equity and surrogate, in exercise of equitable jurisdiction, will determine question — separate hearing apart from probate proceedings proper.
    1. Only those interested in the estate, the heirs and next of Mn, are authorized to contest the probate of a will,, and even they may become as strangers to the estate by having assigned all their interests therein or having released all their rights or prospective interests to the person making the will. Equity recognizes the force of such agreements or releases and when fairly made for an adequate consideration gives them effect and validity.
    2. Letters and papers signed by relatives of a testatrix, wherein they state that they will not contest her will upon the receipt of advanced payments, in reality amount to agreements that they will make no further claim upon her estate. No form of words is necessary to make out such an agreement. The intention must be gathered from all the surrounding circumstances and the writings interpreted according to the purpose which the parties had in mind, and where they clearly indicate that the amounts to be advanced were in lieu of provisions which testatrix would otherwise have made for her relatives in her will, and they took the money, they must be held to their agreement and be deemed as strangers to the estate with no interest to contest the will on any ground. Such agreements are not against public policy.
    3. Next of kin, who have received advances under such agreements, are not entitled, as of right, to a jury trial of the question whethei they are entitled to contest the will. Such agreements are only cognizable in equity and the surrogate, who has equity jurisdiction under section 40 of the Surrogate’s Court Act, after hearing the parties and taking the proof will determine whether they have any legal or equitable standing in his court. The separate hearing of preliminary issues apart from the probate proceedings and before the main contest has been the uniform practice in the Surrogates’ Courts and is justified by subdivision 3 of section 443 'of the Civil Practice Act.

      Matter of Cook, 217 App. Div. 342, affirmed.
    (Argued November 22, 1926;
    decided December 31, 1926.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered July 9, 1926, which affirmed an order of the Washington County Surrogate’s Court directing a separate trial of issues raised upon a petition to strike out contestants’ answers and denying a jury trial.

      Walter A. Fullerton and Leo E. Pratt for appellants.
    The so-called agreements are against public policy. (.Matter of Kingsbury, 192 App. Div. 206; National Park Bank v. Billings, 144 App. Div. 536; 203 N. Y. 556; McClure v. Raben, 133 Ind. 507; Stevens v. Stevens, 181 Mich. 438; Warren v. Union Bank of Rochester, 157 N. Y. 259.) The Surrogate’s Court has not jurisdiction to pass upon the validity of the alleged agreements not to contest. (Matter of Walker, 136 N. Y. 20; Matter of Heinze, 179 App. Div. 453; 224 N. Y. 1; Adams v. Swift, 169 App. Div. 802; Hermann v. Ludwig, 186 App. Div. 287; Alfred University v. Frace, 193 App. Div. 279; Matter of Mondshain, 186 App. Div. 528; Matter of Hearne, 171 N. Y. Supp. 984; Isaacs v. Isaacs, 208 App. Div. 61; Matter of Mathewson, 210 App. Div. 572; Matter of Lolly, 210 App. Div. 757.) The validity of these alleged agreements should not be determined separate and apart from the main will contest. (Matter of Walker, 136 N. Y. 20; Matter of Hearne, 171 N. Y. Supp. 984; McGurty v. D., L. & W, R. R. Co., 172 App. Div. 46; City of Syracuse v.
      Hogan, 234 N. Y. 457; Matter of Boyle, 242 N. Y. 342; Kohlman v. Bremer, 216 App. Div. 552; Commercial Trust Co. v. Columbia Trust Co., 183 App. Div. 106; Insurance Co. of North America v. Whitlock, 207 App. Div. 319; Romanio v. Lamport & Holt, Ltd., 207 App. Div. 861; Woicianowicz v. P. & R. Coal & Iron Co., 232 N. Y. 256.)

      Lawrence B. McKelvey, John Ross Delafield, William S. Savage, Matthew C. Fleming and George N. Whittlesey for respondents.
    The agreements not to contest her will, made between the testatrix and her next of kin, are not against public policy. (Matter of Kiltz, 125 Misc. Rep. 475; Matter of Klein, 121 Misc. Rep. 568; Matter of Hagen, 119 Misc. Rep. 770; 206 App. Div. 682; Clark v. Lyons, 38 Misc. Rep. 516; 76 App. Div. 622; Kinyon v. Kinyon, 72 Hun, 452; Riordan v. First Presbyterian Church, 6 Misc. Rep. 84; Johnston v. Spicer, 107 N. Y. 185; Schouler on Wills [5th ed.], 811, § 605-a; Moss v. Cohen, 158 N. Y. 240.) The contestants are not entitled to a jury trial on the question of the validity of the alleged agreements not to contest. (Imperial Shale Brick Co. v. Jewett, 169 N. Y. 143; Moss v. Burnham, 50 App. Div. 302; O’Beirne v. Bullis, 158 N. Y. 466; Stono v. Weiller, 128 N. Y. 655; Van Rensselaer v. Van Rensselaer, 113 N. Y. 214; Untermyer v. Beinhauer, 105 N. Y. 524; Matter of Fox, 166 App. Div. 718; Vollkommer v. Frank, 107 App. Div. 594; Carroll v. Diemel, 95 N. Y. 255; Matter of Reinhardt, 92 Misc. Rep. 96.) The Surrogate’s Court has full and complete jurisdiction and power to determine all the issues of law and fact raised by the pleadings with respect to the agreements not to contest the will. (Matter of Hamilton, 76 Hun, 200; Matter of Peaslee, 73 Hun, 113; Matter of Comins, 9 App. Div. 492; Matter of Thompson, 41 Misc. Rep. 223; Matter of McGarren, 112 App. Div. 503; Matter of Garner, 59 Misc. Rep. 116; Matter of Fox,
      166 App. Div. 718; Matter of Reinhardt, 92 Misc. Rep. 96; Matter of Lord, 90 Misc. Rep. 222; Matter of Zimmerman, 104 Misc. Rep. 516; Matter of Goldmark, 186 App. Div. 447; Matter of Malcolmson, 188 App. Div. 600.)
   Crane, J.

Frances Julia Cook, an elderly widow of considerable wealth, desired to make a will disposing of her property to certain charities. She had no children, and her only heirs and next of kin were a sister, a niece and two nephews. These relatives were of mature years, and apparently not on terms of great intimacy with Mrs. Cook. At least the relationship apparently did not draw them together with any frequency.

In preparing for the disposition of her property, she wrote to her niece, Kathryn E. Russell, in January of 1924, as follows:

Dear Katherine:

In making my will, it was my intention to bequeath you something. After consideration, it occurred to me that it will give me greater pleasure to give it now, and you to receive it now, and in so doing I am asldng you if you would be willing to sign and receipt an agreement, agreeing that in consideration of this gift now, that you agree that you will not at any time contest or join with others in contesting my will. The same conditions apply to your two (2) brothers, who must also sign such an agreement.

“ * * * Kindly let me have full names and addresses of your brothers.”

Kathryn’s reply indicates that she knew very little of her aunt, or as she says, about my father’s people.” She is glad to receive the gift as her brothers and herself are trying to get a home for their respective families. Having failed to state, however, anything about contesting the will, another letter followed on February 8, 1924, written by G. E. Knowlton, on behalf of Mrs. Cook, wherein he states:

“ Dear Mrs. Russell:

“ Mrs. Robert H. Cook has handed, me your letter of January 21st in which you state that you would appreciate a gift from her, but you do not say that you will agree to refrain from contesting her will.

“ May I ask you to be good enough to advise Mrs. Cook as to your attitude in this matter.”

A few days afterwards Niece Kathryn ” replied:

Dear Aunt Julia:.

I am sorry that I omitted to state in my letter that I would agree to the agreements mentioned in your letter. I both appreciate and agree to those conditions.”

Thereafter Kathryn signed and sent to Mrs. Cook the following agreement:

Dated March 5, 1924.

Received from: Frances Julia Cook

......................Dollars

as a gift from her and in consideration of this gift, I agree that I will not at any time contest or join with others in contesting her Will.”

Kathryn Russell received from Mrs. Cook a check for $4,000, which she deposited and kept. She writes a long letter under date of March 18, 1924, expressing to her Aunt Julia her gratitude for the gift and telling her of the use which she is to make of the money in purchasing a farm. Similar correspondence was had with the nephews, each of whom received $4,000, and signed a like agreement. Mrs. Rachel Barber, the sister, living at Fair Haven, Vermont, received $5,000, and she also signed an agreement not to contest or join with others in contesting Mrs. Cook’s will. The other correspondence between the parties need not be mentioned.

By her last will and testament, dated the 14th day of February, 1924, Frances Julia Cook, describing herself as the widow of Robert H. Cook, of the town of Whitehall, New York State, gave $20,000 to The American Museum of Natural History of the city of New York and the remainder of her estate to the American Female Guardian Society and Home for the Friendless, located at Woody-crest avenue in the city of New York. The “testatrix died June 10, 1925, and her will has been offered for probate in the Surrogate’s Court of Washington county.

Having received the advances or gifts under the circumstances above detailed, can these heirs and next of kin of Mrs. Cook now contest her will? They have sought to do so, alleging that she was incompetent to make a will, and that the same was procured by fraud and undue influence.

None is authorized to contest the probate of a will except those interested in the estate, the heirs and next of kin. Even an heir or a next of kin may become as a stranger to the estate by having assigned all his interest therein or having released all his rights or prospective interests to the person making the will. At common law, a mere possibility could not be assigned. Equity, however, recognized the force of such agreements or releases, and when fairly made for an adequate consideration, gave them effect and validity. The release of an expectancy on the condition of an advance being made, was held to be binding and enforcible in Eissler v. Hoppel (158 Ind. 82). Likewise an agreement made on consideration never to assert any right, title or interest as heirs in certain property and not to contest in any manner or to any extent whatever the last will and testament, has been given force by the courts of California, in Matter of Garcelon (104 Cal. 570). To the same effect is Gore v. Howard (94 Tenn. 577). In Brands v. DeWitt (44 N. J. Eq. 545) it was held that an heir at law may for a sufficient consideration release to his father the share which he might have at the parent’s death in his estate real or personal so that he will be thereafter estopped from establishing any claim thereto as one of his heirs at law or next of kin. Agreements not to contest by reason of advances made or property turned over, may be regarded as agreements to make no claim to any share of the estate. (Havens v. Thompson, 26 N. J. Eq. 383; Quarles v. Quarles, 4 Mass. 679; Kenney & Ux. v. Tucker, 8 Mass. 142.) The only case I find in this State touching on this point is Kinyon v. Kinyon (72 Hun, 452).

There has never been any question about the agreements made between the heirs or next of kin and the representatives of an estate after the death of a testator regarding settlements and compromises. These have always been held to be good, when made in good faith, and not against public policy. (Moss v. Cohen, 158 N. Y. 240; Seaman v. Colley, 178 Mass. 478; Grochowski v. Grochowski, 77 Neb. 506; Hall v. Hall, 125 Ill. 95; 38 Amer. Law Rep. Annotated, 753.) This, however, is not such a case. We are not here dealing with agreements made after the death of the testator, but agreements made before the death of the testator regarding the future disposition to be made of an estate, and the claims of the parties thereto. Such agreements are akin to those implied in the taking of a legacy bequeathed upon the condition stated in the will that no contest shall be made. Such provisions have been recognized as good. (Bradford v. Bradford, 19 Ohio St. 546; 2 Jarman on Wills, *902; 2 Redfield on Wills, *298; Smithsonian Institution v. Meech, 169 U. S. 398; Moran v. Moran, 144 Iowa, 451. But see Matter of Arrowsmith, 162 App. Div. 623, and South Norwalk Trust Co. v. St. John, 92 Conn. 168.)

Do the letters and the papers signed by Mrs. Cook’s relatives, wherein they state that they will not contest her will upon the receipt of an advanced payment, in reality amount to agreements that they will make no further claim upon her estate? We think they do. No form of words is necessary to make out such an agreement. The intention must be gathered from all the surrounding circumstances and the writings interpreted according to the purpose which the parties had in mind. If, for instance, Kathryn Russell had agreed to take $4,000 in lieu of any interest which she might have as heir or next of kin in Mrs. Cook’s estate, and released all her expectancy therein, it cannot be doubted that in the light of the above authorities, such an agreement would bind her in equity. Every consideration of justice would demand that such an agreement, fairly and openly made while the testatrix was alive, and relied upon in disposing of her property, should be supported; The niece under such an agreement would become as a stranger to the estate; she would have no interest entitling her to contest the will. Whether it were a forgery or made under undue influence or through fraud, would be no concern of hers. These matters would be subjects of inquiry by the surrogate charged with the duty of only probating wills legally executed, or of contest by those who had a justiciable interest in the estate. Any party to the proceeding before filing objections may request the oral examination of the subscribing witnesses thereto (Sec. 141, Sur. Ct. Act) and the surrogate must be satisfied with the genuineness of the will and the validity of its execution before admitting it to probate. (Sec. 144.)

Such in effect is the agreement which the heirs and next of kin made with Mrs. Cook. She notified them that she was to make her will, and desired to leave them a legacy. She said, however, that it would give, perhaps, more satisfaction if she advanced the amount in cash while she was alive, and that she would do so if they agreed not to contest her will. The amount which she was to advance or give to them was in lieu of the provision which she otherwise would make for them in her will. The letters clearly indicate that the relatives were not to have the gift of money and also a provision in the will. They .could have the one or the other, but not both. They might elect to take the cash in advance, but if they did so, they were to receive nothing more, and have no further interest in Mrs. Cook’s estate. They took the money and must now be held to their agreement. They are as strangers to this estate, and have no interest whatever to contest the will on any ground.

This appeal comes to us on certified questions in a proceeding brought by the executors to obtain an order from the Surrogate’s Court striking out the objections filed by the next of kin to the probate of the will. In answer to the petition which alleged in full all the facts herein stated, the defendants pleaded that their agreements not to contest were obtained by fraud and deceit, and were not the acts of Mrs. Cook. The surrogate ordered — and it is the order appealed from — that the issues arising on the petition to strike out the objections be tried preliminary to and separate and apart from the probate proceedings. The demand of the proposed contestants for a jury trial was denied. This order having been unanimously affirmed by the Appellate Division, that court certified two questions for our review:

“ 1. Are the alleged agreements not to contest against public policy?

2. Are the contestants entitled to a jury trial on the question of the validity of the alleged agreements not to contest? ”

The first question we have already answered. The alleged agreements are not against public policy. The second question was -properly answered in the disposition made of this case below. The alleged contestants are not entitled to a jury trial upon this question as to whether or not they have a right to contest; that is, whether or not the agreements made by them are binding upon them and oust them from the probate proceeding. As we have above stated, such agreements are only cognizable in equity; they are enforced by a decree which enjoins or prevents a contracting party from proceeding contrary to the agreement. Equity molds the relief to fit the situation, to compel the party to keep his bargain. As the Surrogate’s Court, under section 40 of the Surrogate’s Court Act, now has equity jurisdiction, the surrogate after hearing the parties and taking the proof, will determine as would a court of equity whether these next of kin have any legal or equitable standing in his court. The surrogate must always determine on an application to probate a will who are the proper parties to be cited and who are entitled to contest. These questions are not for a jury as a matter of right, although section 68 authorizes a jury trial in the discretion of the surrogate. That these preliminary issues should be heard separate and apart from the probate proceedings and before the main contest, is not only justified by section 443, subdivision 3, of the Civil Practice Act, but apparently has been the uniform practice in the Surrogates’ Courts. (Matter of Fox, 166 App. Div. 718; Matter of Comins, 9 App. Div. 492; Matter of McGarren, 112 App. Div. 503; Matter of Hamilton, 76 Hun, 200; Matter of Peaslee, 73 Hun, 113; Matter of Zimmerman, 104 Misc. Rep. 516; Matter of Guilford’s Will, 185 N. Y. Supp. 248.) Such procedure would seem necessary in order to simplify the issues if the validity of a will is being tried out before a jury. Experience teaches that the issues for a jury should be as simple and as few as possible.

The order, therefore, should be affirmed, with costs, and both questions answered in the negative.

Pound, McLaughlin and Andrews, JJ., concur, with Crane, J.; Hiscock, Ch. J., Cardozo and Lehman, JJ., concur in result.

Ordered accordingly.


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    John S. Sorenson et al., Copartners under the Firm Name of Sorenson & Nielsen, Appellants, v. Keesey Hosiery Company, Inc., Respondent.
    Contract — sale — pleading — trial — remedy of purchaser on discovery of defects in goods sold — indefinite complaint which may be read as one for rescission or for breach of warranty and damages — failure of defendant to move to make complaint more definite and certain or to require plaintiffs to elect as to their cause of action — dismissal of complaint on ground of failure to give notice of rescission and return goods erroneous where trial had proceeded on theory action was for damages for breach of warranty and allegations. of complaint and evidence are sufficient to sustain such a cause of action — demand for wrong measure of damages not fatal.
    1. Purchasers of merchandise for export, who, immediately upon hearing from their customer that the goods were defective and of a lower grade than the sample, notified the seller, but failed to rescind the contract and, acting on the representations and persuasion of the seller’s agent, kept the goods and disposed of them at a loss, have a remedy in an action for damages on breach of warranty which, under section 130 of the Personal Property Law, survives acceptance, provided the seller was notified within a reasonable time.
    2. Where a complaint is neither clear nor definite and may be read either as one for rescission of a contract to purchase goods or as one for breach of warranty and for damages, and defendant failed to move to make the complaint more definite and certain or to require the plaintiff at the opening of the trial to elect or state his cause of action, but proceeded upon the trial, as did the plaintiffs, upon the assumption or theory that the action was for damages for breach of warranty and there are sufficient allegations in the complaint and proof upon the trial to sustain such an action, it is error for the trial court, at the close of the plaintiff’s case, to grant a motion to dismiss the complaint on the ground of failure to give notice of rescission and failure to return the goods. A demand for the wrong measure of damages in the prayer for judgment is not fatal, provided damage be shown and the cause of action otherwise sufficiently alleged.

      Sorenson v. Keesey Hosiery Co., 216 App. Div. 750, reversed.
    (Argued December 2, 1926;
    decided December 31, 1926.)

      Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 31, 1926, unanimously affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term.

      Herbert B. Limburg, Morse S. Hirsch and Louis B. Davidson for appellants.
    The cause of action pleaded was one for damages for breach of warranty and not to recovér the purchase price upon a rescission. (Swain v. Schieffelin, 134 N. Y. 471; Wharton v. Winchester, 140 N. Y. 287; 2 Sedgwick on Damages, § 655-a.) Irrespective of the pleadings the action as litigated was for damages for breach of warranty. Defects of pleading, if any existed, were, therefore, waived. (Kottler v. N. Y. Bargain House, Inc., 242 N. Y. 28; Winter v. American Aniline Products, 236 N. Y. 199; Kokomo v. Inman, 134 N. Y. 92; Ramsay v. Miller, 202 N. Y. 72.) Even assuming that plaintiffs had attempted to plead and prove a rescission and the proof failed to establish rescission, or even assuming that there had been an abandonment of an attempted rescission, nevertheless plaintiffs were entitled to go to the jury upon the cause of action actually proved for breach of warranty, and it was error to deny plaintiffs any relief. (Clark v. Kirby, 243 N. Y. 295; Sand v. Garfield Motor Truck Co., 204 App. Div. 70.)

      Charles J. Lane for respondent.
    Simple damages for breach of warranty was not the theory of action as alleged or tried and it is too late on appeal for appellants to change their theory of action. (Greene v. Barrett, 238 N. Y. 207; Joannes Bros. v. Lamborn, 237 N. Y. 207; Stork v. Dorn, 212 App. Div. 522; Franck v. Union Ry. Co., 123 Misc. Rep. 949; Gold v. City of Kingston, 210 App. Div. 523: Martin v. Herzog, 228 N. Y. 164; Stafford Mfg. Co. v. Jason Bldg. Co., 208 App. Div. 764; Gordon v. Anderson, 200 App. Div. 616; Deren Coat Co. v. Becker, 201 App. Div. 803.) Plaintiffs’ evidence failed to show that they had rescinded the contract and returned or offered to return the merchandise to defendant, as required by section 150 of the Personal Property Law and as alleged in their complaint. (Lowinson v. Newman, 201 App. Div. 266; 2 Williston on Sales [2d ed.], 1529; Little & Ives Co. v. Lamb Pub. Co., 108 Misc. Rep. 14; Posner v. Fink, 163 N.Y. Supp. 1082; Lapovsky v. Abramson, 181 N.Y. Supp. 798; Pers. Prop. Law, § 146; Celler v. Montfort, 190 App. Div. 914; Metallograph Corp. v. Arma, 205 App. Div. 100; Joanness Bros. v. Czarnikow Rionda Co., 201 N. Y. Supp. 409; 205 N. Y. Supp. 930; Brown v. Foster, 108 N. Y. 387. Chambers v. Lancaster, 160 N. Y. 342; Hospital Supply Co; v. O’ Neill, 10 Misc. Rep. 655; 155 N. Y. 634.)
   Crane, J.

In January of 1918 the defendant sold to the plaintiffs 5,000 dozen ladies’ mercerized hose, quality 62, at $2.60 per dozen. The goods were to be packed in strong new cases, iron strapped for export to the plaintiffs’ customer at Buenos Aires, Argentine Republic. The plaintiffs had made the purchase, relying upon samples displayed by the defendant. Shipments were made in the latter part of 1918 to the plaintiffs, and by the plaintiffs in the course of time to Buenos Aires. On arrival at the South American port, the goods were found to be defective, and were returned to the plaintiffs at New York. After the plaintiffs had received word from their customer that the goods would not be received, they notified the defendant of its breach, and thereafter various negotiations were had between the plaintiffs and the defendant’s agent regarding the use and disposition to be made of the hosiery. At one time the plaintiffs notified the defendant that they would return the goods, but they were persuaded from doing this by the defendant’s agent, who assured them that the goods could be disposed of on a rising market at a profit. Apparently relying upon the defendant’s statement, the plaintiffs wrote them, or rather their agent, The J. M. Given Co., * on July 23, 1920, as follows:

“ Confirming the conversation between your Mr. Given and our Mr. Sorenson, this afternoon by telephone, we hand you herewith a memorandum of the hosiery about which we had been treating with you lately. * * *

“We confirm the understanding arrived at between your Mr. Given and Mr. Sorenson, to the effect that you are authorized to make efforts to dispose of this hosiery for our account at .$4.75 per dozen. We are prepared to pay to you a brokerage of 5% should you effect the sale.”

Given & Co. failed to sell these goods and the plaintiffs thereafter disposed of them at a loss.

The plaintiffs did not rescind this contract of sale. Their offer to return was a mere statement made in the course of negotiations while the parties were determining what to do with the goods. Acting on the representations and persuasion of the defendant’s agent, the plaintiffs kept the goods and disposed of them. The plaintiffs’ remedy at law for this breach of warranty was not on the ground of rescission, as there had been no rescission, and subdivision 3 of paragraph (d) of section 150 of the Personal Property Law (Cons. Laws, ch. 41) had not been complied with. This reads: ‘ ‘ Where the goods have been delivered to the buyer, he cannot rescind the sale * * * if he fails to notify the seller within a reasonable time of the election to rescind, or if he fails to return or to offer to return the goods to the seller.” The plaintiffs did not notify the defendant within a reasonable time of their rescission of the contract, nor did they offer to return the goods in such a decisive way as to evidence an election to rescind. The offer to return was merely a tentative suggestion or statement made in the process of negotiation for a settlement of the difficulty, which culminated in the plaintiffs’ keeping the goods. If the offer were made, subsequent dealings indicated that it was withdrawn.

The plaintiffs did have a remedy, however, and this was an action for damages on breach of warranty, which under section 130 of the Personal Property Law survived acceptance, provided the seller was notified within a reasonable time. There is no question in this case about notice. The plaintiffs notified the defendant immediately upon hearing from their customer that the hosiery was defective and of a lower grade than the sample.

Whether this action is one in rescission or for damages upon breach of warranty has been somewhat difficult to determine. The complaint is by no means as clear and as definite as it should be. It contains allegations both ways, and might be read as it has been by the courts below, as one for rescission, or as one for breach of warranty and for damages, as we think it may be construed. While it is true that an action for rescission and an action for damages for breach of warranty are inconsistent and cannot be included in the same complaint as separate and distinct causes of action (Joannes Brothers Co. v. Lamborn, 237 N. Y. 207), yet where a defendant is in doubt whether the allegations of the complaint alleging one cause of action plead rescission, or action for damages, his remedy is to move to make the complaint more definite and certain, or else to require the plaintiff at the opening of the trial to elect or to state his ground of action. (Rules of Practice, 102-105.) In other words, a complaint may not be bad as failing to state any cause of action, and yet be so redundant, confused and obscure as to create doubt as to the remedy the plaintiff has chosen. The law provides a method whereby such doubt may be removed. The defendant in this case made no motion before trial to straighten out the complaint, and at the trial proceeded as did the plaintiffs, upon the assumption or theory that the action was for damages for breach of warranty. Much of the testimony which was introduced would have been entirely incompetent if this were not the remedy the court and lawyers had in mind. At the very opening of the trial, when ‘the plaintiffs introduced evidence as to the profits which under the special circumstances they would have made on a resale to their customer in Buenos Aires, the defendant’s counsel objected, making this statement: I object to that because this is not the measure of his damage under the law. The law is specific — section 150 of the Personal Property Law — as' to what his measure of damage is. It is the difference between the contract price and the market price.” The provision that counsel referred to is included in paragraphs 6 and 7 of section 150:

“ 6. The measure of damages for breach of warranty is the loss directly and naturally resulting, in the ordinary course of events, from the breach of warranty.

7. In the case of breach of warranty of quality, such loss, in the absence of special circumstances showing proximate damage of a greater amount, is the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had answered to the warranty.”

This is not the measure of damages in an action for rescission or on the ground of rescission. The property being returned to the defendant, or tendered back, the action is brought to recover the purchase price paid. (Personal Property Law, sect. 150, par. 4.) The plaintiffs, however, were permitted to prove the value of the hosiery at the time of delivery, if in accordance with sample, and its value as delivered. In fact, the defendant’s counsel cross-examined one of the plaintiffs’ witnesses regarding the market price of hosiery at the time and place of delivery, although nothing had been asked of this witness on direct examination regarding the market. This brief reference to the record indicates, I think, that the parties considered this as an action to recover damages for breach of warranty, or else there was some confusion as to the measure of damages which did apply. At one point, when ruling as to admission of evidence of damage, the court stated that he ruled so as to be in a position at the end of the case to pass on all the questions of law. At no point do I find that the defendant’s counsel objected to the plaintiffs’ evidence of market values, as being a wrong or improper measure of damage, or as attempting to prove a cause of action not alleged in the complaint. It is true that at one time he objected on the ground that such evidence was incompetent and irrelevant, but failed to state why it was incompetent. Most of the objections were to the incompetency of the witness as an expert. No claim was made that the proof in any way varied from the cause of action set forth in the complaint.

At the end of the plaintiffs’ case a motion was made to dismiss on the ground of failure to give notice of rescission and failure to offer to return the goods. The motion was granted.

The plaintiff concededly failed to prove a cause of action based upon rescission. As stated by me, the trial did not proceed upon this theory. The plaintiffs did prove sufficient to make out a cause of action for damages sustained through a breach of warranty. They proved the warranty, a breach, notice and damage. Even though the complaint were indefinite and uncertain as to what the plaintiffs were seeking to recover, the court might very well have considered at the end of the case that the complaint conformed to the proof showing a cause of action for damage on breach of warranty. It appears as if the defendant’s counsel had acquiesced in this view of the case and of the complaint. However that may be, and without so holding, an examination of the complaint we think shows sufficient allegations to sustain it as an action for damages for breach of warranty, especially when the parties have apparently tried the case upon that theory. The complaint, narrowed down, alleges a contract of sale, a breach of warranty, damages resulting from the breach, and demands judgment for a sum of money which is apparently the purchase price, and also damages for all other losses. The other losses alleged included the freight charges to Buenos Aires and back, insurance, carting, also loss of profits on the rejection of the goods by the plaintiffs’ South American customer. These items if within the contemplation of the parties might be recovered in an action for damages resulting from a breach of warranty (Swain v. Schieffelin, 134 N. Y. 471) but could not be a part of the recovery in an action of rescission, at least not all of them. (Personal Property Law, sect. 150; Williston on Contracts, vol. III, sect. 1464, p. 2609; Gerli & Co. v. Mistletoe Silk Mills, 80 N. J. Law, 128.) The party who rescinds can claim nothing beyond restitution.

While it is not necessary that the word rescission ” should be used, yet this complaint nowhere states that the contract of sale was rescinded, or that the plaintiffs ever gave notice of rescission, or claimed rescission. That it is a poorly drawn complaint must be conceded, yet a cause of action for damages for breach of warranty may be spelled out of it. A demand" for the wrong measure of damages in the prayer for judgment is not fatal, provided damage be shown and the cause of action otherwise sufficiently alleged. The prayer for relief sometimes is helpful, but is not always conclusive in determining the nature of the cause of action attempted to be stated. As an action for rescission, or based upon rescission, and for the recovery of the purchase price, the complaint fails to state that the plaintiffs gave notice of their election to rescind.

Taking into consideration all the matters which I have here stated and the uncertainty which even counsel appeared to be in at the time of the trial as to the proper measure of damage to be applied under the complaint, we think that the dismissal of the action at the end of the plaintiffs’ proof cannot be sustained. Therefore, the judgments should be reversed and a new trial granted, with costs to abide the event.

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

Judgments reversed, etc.


text:
    Martin Connelly, Jr., an Infant, by Martin Connelly, His Guardian ad Litem, Respondent, v. John Carrig, Appellant. Martin Connelly, Respondent, v. John Carrig, Appellant.
    Negligence — machinery — injury to child through his inserting a finger in spout of coffee grinder — insufficiency of evidence to warrant direction of verdicts for damages — burden upon plaintiffs to show grinder required guard and its absence was proximate cause of injury.
    Evidence that an infant ten years of age entered defendant’s grocery store to make purchases and, hearing the noise of a coffee grinder, the manner of operation of which was familiar to him, went to the place where it was located and, inserting his index finger in the spout, had the end thereof taken off, is insufficient to warrant the direction of a verdict for plaintiffs in actions to recover for the injury and for loss of services and expenses, there being no claim that the machine was of unusual construction or that its appearance was such as to naturally attract a child and no proof that any usual or customary guards were omitted. The burden was upon the plaintiffs to prove that the grinder required a guard and that the failure to have it was the proximate cause of the injury.

      Connelly v. Carrig, 215 App. Div. 832 (2 cases), reversed.
    (Argued November 24, 1926;
    decided December 31, 1926.)
    Appeal, in each of the above-entitled actions, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered March 20, 1926, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court.

      Everett W. Bovard and Norman G. Hewitt for appellant.
    No negligence was established against the defendant nor was any cause of action in nuisance proved, and plaintiff’s own heedlessness was the sole cause of his injuries. (Holbrook v. Aldrich, 168 Mass. 15; Roche v. N. Y. Edison Co., 84 Misc. Rep. 427.)

      John H. W. Krogmann for respondent.
    One maintaining a machine which is of such a nature that he knew or should have known its dangers, is responsible in damages for injuries caused to one lawfully upon the premises as an invitee. (Sarapin v. Corrugated Paper Mills Co., 209 App. Div. 377; Schmidt v. Cook, 23 N. Y. Supp. 799; Wittleder v. Electric Co., 47 App. Div. 410; Caruso v. Troy Gas Co., 153 App. Div. 131; Lee v. Bill Poster Co., 190 App. Div. 742; Jonnasch v. Standard Gas Light Co., 4 N. Y. Supp. 542; Gumbrel v. Flannegan Brewery Co., 199 App. Div. 778; Dorsey v. Chautauqua, 203 App. Div. 251.)
   McLaughlin, J.

Two actions — one by an infant to recover damages for personal injuries on the ground that the same were caused by defendant’s negligence; the other by the father of the infant to recover damages for the loss of services and for expenses of medical treatment in caring for the injury. The answer in each action denied the allegations of negligence set out in each complaint. The actions were tried together.

At the trial it appeared that the defendant had a small grocery store in which was a coffee grinder operated by electricity. The infant plaintiff testified that at the time of the accident he was about ten years old; that he entered the store of the defendant on the 15th of December, 1923, for the purpose of making some purchases; that when he entered the store he heard the noise of the coffee grinder and went over to the place where it was located; that he had frequently seen the coffee grinder prior to that time and knew it was operated by electricity and when the current was on and off, and that the grinder would continue to run for a few seconds after the current was turned off. The infant plaintiff, when he reached the coffee grinder, inserted his index finger in the spout out of which the ground coffee came with the result that the fleshy part of the end of the finger and a portion of the nail were taken off; the finger was not otherwise injured.

At the conclusion of the evidence both sides in each action moved for the direction of a verdict. The jury was thereupon discharged and the court subsequently granted plaintiff’s motion in each action and directed a verdict in favor of the infant plaintiff for $600 and a verdict in favor of the father for $100. Judgments to this effect were entered from which defendant appealed. The Appellate Division affirmed, one of the justices dissenting, the judgment in each action. Defendant then appealed to this court. On the appeal both actions were argued together and from the same record.

I am of the opinion that the judgment in each action should be reversed and the complaint dismissed. The evidence is to the effect that tins was an ordinary coffee grinding machine — one commonly used in small grocery stores. There was no claim that it was of unusual construction or that its appearance was such that it would naturally attract a child of the age of the plaintiff. There was no proof that any usual or customary guards were omitted. The burden was upon the plaintiffs to prove that the grinder required a guard and that the failure to have such guard was the proximate cause of the injury to the infant. The accident did not occur by the infant inadvertently slipping or faffing against the grinder. On the contrary, he deliberately and intentionally, according to his own testimony, inserted his finger in the spout from which the ground coffee came. He did this for the purpose of getting, if he could, some of the unground coffee.

I am unable to see, upon the foregoing statement of facts, upon what principle defendant could be held liable. He had a right to have the coffee grinder in his store, and he had a right to use it in connection with the business conducted therein. There was nothing to indicate that it was not adequately protected or that any protection was necessary. The citation of authorities is unnecessary to show that the plaintiff in each action failed to establish a cause of action.

It follows that the judgment in each action should. . be reversed and the complaint dismissed, with costs in all courts.

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

Judgments reversed, etc.