author: Lehman, J. McLaughlin, J.

text:
    Francis Dean, Appellant, v. Emily Halliburton, as Administratrix with the Will Annexed of the Estate of William S. Halliburton, Deceased, Respondent.
    Incompetent persons — practice •—• trial — evidence — executors and administrators—action which will affect property of non-resident incompetent, a committee of which has been appointed in this State, cannot be brought without consent of court — committee, at its request, may be substituted as defendant — order tantamount to permission to begin action — committee has full power to conduct defense — may waive protection of section 347 of Civil Practice Act and consent that plaintiff testify to what passed between him and incompetent —after death of lunatic administratrix may object to such testimony of plaintiff at new trial — testimony, however, taken at former trial may be read in evidence — administratrix bound by stipulation of committee to the extent of precluding her from objecting to reading of testimony.
    1. Where a resident of a foreign State has been adjudged an incompetent in the place of Ms domicile and a committee of Ms property has been appointed in tMs State, an action wMch will affect Ms property here cannot lawfully be brought without the consent of' the court.
    2. Though the court is bound to dismiss an action brought without such permission, if the committee asks to be substituted as defendant because the interests of the incompetent will be promoted by prompt litigation of the claim against Mm, the court in the exercise of a sound discretion has power to order such substitution wMch order is tantamount to permission to begin the action against the committee.
    3. A committee properly substituted as defendant has full power to conduct the defense in such manner as in its opimon will best serve the interest of the incompetent, and, where a situation arises in which possible benefit to be derived from insistence upon a general rule enacted for the protection of the estate of an incompetent is outweighed by detriment which under the special circumstances may result, the committee has power to abandon the advantage created by law in order to obtain a greater advantage.
    4. A committee, therefore, who under advice of counsel believes that opportumty to cross-examine the plaintiff will be of advantage to the incompetent, may with permission of the court, enter into a stipulation waiving the provisions of section 347 of the Civil Practice Act and consenting that the plaintiff may testify to what passed between him and the incompetent.
    5. After the death of the lunatic, however, and upon a subsequent trial, his administratrix, who has been substituted as defendant, may object to the testimony of the plaintiff upon ground which did not exist at the first trial and which the stipulation did not, by fair intendment, cover, viz., that his testimony is incompetent because offered against the administratrix of the decedent.
    6. But, even though by such objection the administratrix can bar the examination of the plaintiff upon the new trial, yet by the provisions of section 348 of the Civil Practice Act, the testimony of the plaintiff taken at the former trial may be read in evidence subject to “ any other legal objection to the competency of the witness.” The present defendant is bound by the stipulation made by the committee to the extent that it precludes an objection to the reading of the testimony given by the plaintiff upon a former trial, on the ground that plaintiff was not competent to testify concerning personal transactions with a lunatic.

      Dean v. Halliburton, 213 App. Div. 831, reversed.
    (Argued October 5, 1925;
    decided December 1, 1925.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 5, 1925, which affirmed an order of Special Term granting a motion to vacate a stipulation in the action.
    The questions certified are stated in the opinion.

      Guy 0. Walser for appellant.
    The committee had power to make the stipulation in question. (Dunham v. Fitch, 48 App. Div. 321; McKernan v. Robinson, 84 N. Y. 105; Matter of Mele, 94 Misc. Rep. 555; Austin v. Dunham, 65 Maine, 533; Scribner v. Young, 111 App. Div. 814; Matter of Otis, 101 N. Y. 580; Pharis v. Gere, 110 N. Y. 336; Hine v. N. Y. Elev. R. R. Co., 3 Misc. Rep. 462; McAuliffe v. N. Y. C. & H. R. R. R. Co., 172 App. Div. 597; Zeiser v. Cohn, 207 N. Y. 407; Matter of Del Genovese, 183 App. Div. 200; Matter of Reynolds, 97 Misc. Rep. 555.) The present defendant is bound by the stipulation made by the committee. (Austin v. Dunbar, 65 Maine, 533.) The institution of the action against Halliburton was not inhibited. (Allison v. Campbell, 21 N. C. 152; Clark v. Dada, 183 Ápp. Div. 253; N. Y. Eve. Post v. Chaloner, 265 Fed. Rep. 204, 216; Barker v. Washburn, 200 N. Y. 280; Chanler v. Sherman, 162 Fed. Rep. 19; Wharton on Confl. of Laws, §§ 122, 669; Carter v. Burrell, 80 App. Div. 395; McKernan v. Robinson, 84 N. Y. 105; Dunham v. Fitch, 48 App. Div. 321; Kent v. West, 16 App. Div. 496; Smith v. Keteltas, 27 App. Div. 279.) The trial court had power to substitute the committee. (Carter v. Burrell, 80 App. Div. 395; Kent v. West, 16 App. Div. 496; Dunham v. Fitch, 48 App. Div. 321; Grant v. Humbert, 114 App. Div. 462; McKernan v. Robinson, 84 N. Y. 105; Goldstein v. Schlaefer, 209 App. Div. 899; Feizi v. Second Russ. Ins. Co., 199 App. Div. 775; Matter of P. S. v. Bklyn. H. R. R. Co., 105 Misc. Rep. 254; People ex rel. Newton v. Sp. T. Pt. I, 193 App. Div. 463; People ex rel. City of N. Y. v. Nichols, 79 N. Y. 582.)

      John G. Jackson and Stephen P. Nash• for respondent.
    The plaintiff could not lawfully sue -Halliburton in New York, after he had been judicially declared insane in North Carolina and his committee had been appointed in New York, without consent of court. (Pharis v. Gere, 110 N. Y. 336; Matter of Otis, 101 N. Y. 580; Carter v. Beckwith, 128 N. Y. 312; People ex rel. Smith v. Commissioners, 100 N. Y. 215; Grant v. Humbert, 114 App. Div. 462; Pogue v. Todd, 111 Misc. Rep. 296; Matter of Hopper, 5 Paige, 489; Matter of Heller, 3 Paige, 199; Smith v. Keteleas, 27 App. Div. 279; Williams v. Estate of Cameron, 26 Barb. 172.) The trial court had power to substitute the committee upon the trial. Nor was such substitution tantamount to permission to begin the action against the committee. (Matter of Hopper, 5 Paige, 489; Matter of Heller, 3 Paige, 199; Carter v. Beckwith, 128 N. Y. 312; Grant v. Humbert, 114 App. Div. 462; Pogue v. Todd, 111 Misc. Rep. 296; Smith v. Keteltas, 27 App. Div. 279; Williams v. Estate of Cameron, 26 Barb. 172; Carter v. Burrell, 80 App. Div., 395; Prentiss v. Cornell, 31 Hun, 168.) The committee had no power to make the stipulation in question. (Pharis v. Gere, 110 N. Y. 336; Matter of Otis, 101 N. Y. 580; Carter v. Beckwith, 128 N. Y. 312; People ex rel. Smith v. Commissioners, 100 N. Y. 215; Grant v. Humbert, 114 App. Div. 462; Scribner v. Young, 111 App. Div. 814; Pogue v. Todd, 111 Misc. Rep. 296; Matter of Hopper, 5 Paige, 489, 490; Cochran v. Cochran, 277 Ill. 244; Cartwright v. Wise, 14 Ill. 417.) The present defendant administratrix is not bound by the stipulation made by the committee. (Grattan v. Met. L. Ins. Co., 92 N. Y. 274; Murphy v. McMahon, 179 App. Div. 837; Stemmler v. Mayor, etc., of New York, 179 N. Y. 473; People v. Bloom, 193 N. Y. 1.)
   Lehman, J.

In May, 1922, the plaintiff attempted to begin this action against William S. Halliburton. The record before us indicates, though not very clearly, that Halliburton had previously been adjudged an incompetent by a court in the State of North Carolina where he resided, and in January, 1921, the Supreme Court of the State of New York appointed .Emily Halliburton and the Farmers Loan and Trust Company as committee of the property of Halliburton in this State. No leave of the court was granted to this plaintiff before bringing this action and apparently the plaintiff either did not know that a committee had been appointed of Halliburton’s property or chose to ignore that fact. An answer in behalf of Halliburton was interposed by attorneys of standing and the answer contains no suggestion that he had been adjudged an incompetent.

The issues raised by the pleadings were brought to trial in January, 1923. At the close of the plaintiff’s case, when it appeared that Halliburton had been adjudged incompetent and a committee of his property had been appointed, the trial judge was about- to dismiss the complaint but the committee then offered to appear and consented to amendment of process and pleading so that it might be substituted as defendant in place of Halliburton. The trial judge permitted the substitution and directed that the action proceed against the substituted defendant.

To establish his cause'of action the plaintiff had testified to personal transactions with Halliburton. That testimony was incompetent under the provisions of section 347 of the Civil Practice Act in an action against Halliburton’s committee and was for that reason stricken out. The committee thereafter stated to the trial judge that it desired to examine the plaintiff and that the “ ends of justice would be served” if the trial .judge would permit them to waive the provisions of section 347 of the Civil Practice Act and recall the plaintiff for cross-examination. After some discussion the trial judge agreed to permit the committee to waive the provisions of the Civil Practice Act if such waiver was given by the committee personally in open court or by execution of formal written instrument. On the following day a formal written waiver which stated that the committee do here and now waive the provisions of section 347 of the Civil Practice Act; they agree that the plaintiff may testify to what passed between him and William S. Halliburton; they agree that in no form and in no forum will they question the competency of said evidence and appear now in open court to make this waiver on condition that the plaintiff may be cross-examined and the committee consent to the withdrawal of objection heretofore made to the admissibility of the evidence.”

The parties acted upon this stipulation. The plaintiff was cross-examined and the issues submitted to the jury but the jury disagreed. There have been two subsequent trials resulting in judgments for the plaintiff which have successively been reversed. At both the subsequent trials the waiver was introduced as an exhibit and relied upon by all parties. After the last trial Halliburton died and Emily S. Halliburton, who had been one of his committee, was appointed administratrix c. t. a. of his goods, chattels and credits and substituted for the committee as defendant in the action. As such administratrix she moved to vacate and set aside the stipulation in which she had joined as one of the committee, alleging that it was “ improvidently made.” Her motion was granted and the order vacating the stipulation was affirmed by the Appellate Division upon the law and not in the exercise of discretion.”

The Appellate Division has granted leave to appeal, certifying five questions to us:

“ 1. Did the committee have power to make the stipulation in question?

“ 2. Is the present defendant administratrix c. t. a, bound by the stipulation made by the committee?

“ 3. Could the plaintiff lawfully sue Halliburton in New York after he had been judicially declared insane in North Carolina and his committee had been appointed in New York, without consent of court?

“ 4. Halliburton having been sued under the circumstances stated in the last question, did the trial court have power to substitute his committee upon the trial?

“5. Was such substitution tantamount to permission to begin the action against the committee? ”

We will consider the third, fourth and fifth questions first, since our answers to these questions must to some extent influence our decision of the other questions. We are agreed that after Halliburton had been adjudged an incompetent in North Carolina and a committee of his property had been appointed in New York, an action which would affect his property here could not lawfully be brought without the consent of the court. The third question must, therefore, be answered in the negative.

Though the court was bound to dismiss an action brought without such permission when the relevant facts were brought before it, it seems clear that if the committee asked to be substituted as defendant because the interests of the incompetent would be promoted by prompt litigation of the claim against him in the pending action, the court in the exercise of a sound discretion had power to order such substitution and a substitution so ordered was tantamount to permission to begin the action against the committee. Rules of law intended for the protection of an incompetent or his estate or of an officer of the court should be applied in accordance with their spirit and purpose. It follows that the fourth and fifth questions must be answered in the affirmative.

Since the committee was properly substituted as defendant it had full power to conduct the defense in such manner as in its opinion would best serve the interest of the incompetent. Though it might perhaps not have power to abandon rights of the incompetent without ground for belief that through such abandonment it gained for the incompetent corresponding advantage, yet where a situation arises in which possible benefit to be derived from insistence upon a general rule enacted for the protection of the estate of an incompetent is outweighed by detriment which under the special circumstances may result, there must be room for exercise of discretion and for choice by the committee. In the present case the committee believed that opportunity to cross-examine the plaintiff- would be of advantage to the incompetent. Objection to the competency of the plaintiff to testify in his own behalf was sustained. Plaintiff’s testimony was excluded and that course made cross-examination of the plaintiff by the defendant impossible. Believing that in this result the balance of advantage was against the incompetent the committee under advice of counsel and with permission of the court made the stipulation. Under such circumstances the committee had power to abandon an advantage granted by law in order to obtain a greater advantage. The first question must, therefore, be answered in the affirmative.

The stipulation made at the trial was intended to waive the objection to the competency of the evidence that under section 347 the plaintiff as an interested party might not be examined concerning personal transactions with a lunatic in an action brought against the committee of the lunatic. Since that time the alleged lunatic has died; and though in form the waiver is not confined expressly to those provisions' of section 347 which would at that time have constituted valid objection to plaintiff’s testimony, it is plain that the committee never intended, and perhaps could not, waive the right of the lunatic’s personal representatives, if thereafter the lunatic died, to object upon a new trial to the competency of the plaintiff, under the provisions of the same section, to testify to personal transactions with the decedent. It is unnecessary, therefore, to determine whether or not, if the lunatic had not died, the stipulation would still be effective upon a new trial and render competent testimony of the plaintiff as to personal transactions with the lunatic. After the death of the lunatic the administratrix may object to the testimony of the plaintiff upon ground which did not exist at the first trial and which the stipulation did not, by fair intendment, cover, viz., that his testimony was incompetent because offered against the administratrix of the decedent.

Even though by such objection the administratrix could bar the examination of the plaintiff upon a new trial after the death of the lunatic, yet by the provisions of section 348 of the Civil Practice Act, the testimony of the plaintiff taken at the former trial may be read in evidence at a new trial subject to any other legal objection to the competency of the witness.” At the earlier trial the testimony of the plaintiff was incompetent except as incompetency was removed by express stipulation and waiver. Through that stipulation the plaintiff became a competent witness. Unless that stipulation is vacated and all effect denied to it, ab initio, it cannot be said that the plaintiff was not a competent witness at the earlier trial and the defendant as administratrix is to that extent bound by it. It follows that the answer to the second question should be: “ The present defendant is bound by the stipulation made by the committee to the extent that it precludes the objection to the. reading of the testimony given by the plaintiff upon a former trial, on the ground that plaintiff was not competent to testify concerning personal transactions with a lunatic.” Since the order of the Appellate Division recites that the court did not review the discretion exercised by the justice at Special Term,” the answers-to the certified questions can result in a reversal of the order of Special Term only if in fact they leave no room for the exercise of any discretion. It is not claimed that the stipulation was obtained by fraud or wrong on the part of the plaintiff. The defendant claims only that it was “ improvidently made; ” but it was made under advice of counsel of experience, in the presence of the judge. The committee asked permission to make this stipulation because it desired to examine plaintiff as a witness and naturally preferred cross-examination to examination in chief of an adverse party. The stipulation has been fully acted upon and the committee has obtained through it the advantage it sought for the incompetent it represented. In return the plaintiff was made a competent witness and his testimony was properly admitted. If the plaintiff was a competent witness at that trial, his testimony may be read in evidence upon a new trial. Though the administratrix of the deceased lunatic derives no rights from the committee, she represents the estate of the lunatic in place of the committee and she may not be permitted to assert in behalf of the deceased lunatic upon a new trial objection to competency of a witness which was-effectively waived by the committee, nor should the court by its fiat render testimony incompetent which by stipulation given under these circumstances was made competent against the committee. The defendant has shown no ground upon which the exercise of a judicial discretion may be invoked.

The orders of the Special Term and Appellate Division should be reversed, with costs in all courts, and motion denied, with ten dollars costs, and questions answered as stated in opinion.

McLaughlin, J.

(dissenting). The appeal should be dismissed since the answers to the questions certified will not be decisive of the appeal. (Schieffelin v. Hylan, 229 N. Y. 633.)

The appeal should be dismissed. The Appellate Division did not pass on the question of whether the discretion of the Special Term was properly exercised. On the contrary, it affirmed as a matter of law and stated it does not review the discretion exercised by the justice at Special Term but affirms the order upon the law.”

The stipulation is not binding upon the administratrix. She, as administratrix, was not a party to the action when the stipulation was made. As administratrix, she derives no rights whatever from the committee. She represents the deceased lunatic’s estate and can make no admission which depletes or diminishes that estate. It is her duty, as administratrix, to preserve and protect it. The fact that she, as one of a committee of the lunatic’s property in the State of New York, entered into a stipulation upon the first trial is not binding upon her as administratrix in a subsequent trial. She has the legal right to interpose, on a subsequent trial, any objection legally necessary to protect the lunatic’s estate.

The committee of the property of the lunatic in the State of New York was a committee with limited powers. It was a representative of the court to take charge of and ^preserve such property. It could not make an admission or a stipulation binding for all time upon one not a party to the action. When she was appointed administratrix she was obligated and it was her duty to protect the lunatic’s estate, and any admission theretofore made, either by stipulation or otherwise, by the committee of the property is not binding upon her in any respect, nor does it enable her to permit a claim against the estate she represents to be established by incompetent evidence.

For the foregoing reasons, I dissent and vote to dismiss the appeal.

His cock, Ch. J., Cardozo, Pound and Crane, JJ., concur with Lehman, J.; McLaughlin, J., dissents in opinion, in which Andrews, J., concurs.

Orders reversed, etc.


source: Caselaw Access Project

author: Crane, J.

license: Public Domain

text:
    The People of the State of New York ex rel. Western New York and Pennsylvania Railway Company, Appellant, v. Walter H. Knapp et al., Constituting the State Tax Commission of the State of New York, Respondents.
    Tax — railroads — special franchise — assessment — sale by State of abandoned canal lands to corporation which agreed to construct railroad thereon — reservation in deed of right to retain portions of canal to conduct waters of feeder to another canal — subsequent agreement between State and grantee under which grantee agreed to provide pipes to conduct waters of feeder and State issued permit for construction of railroad along banks, of canal — land on which road was built owned by grantee in fee and special franchise tax on successor in title illegal — appropriation of portions of right of way for Barge canal and quitclaim deed of easements to cross same — arrangement does not constitute a franchise upon which tax may be levied.
    1. Where, pursuant to chapter 404 of the Laws of 1877 and chapter 326 of the Laws of 1880, the latter of which acts authorized and required the Commissioners of the Land- Office to sell and convey the title of the State, in and to the banks and prism of an abandoned canal, to the company which would give a bond to construct and operate within two years a railroad between certa n points over the land of said canal, the relator’s predecessor n title, a company organized for the purpose, purchased the canal lands in question, executed the bond and received a deed from the State granting to it “ all the right, title and interest which the State of New York has in and to the banks and prism ” of the said canal, excepting and reserving the right to retain a specified portion of said canal and the right to retain any portion of the prism of said canal for the purpose of conducting the waters from any feeder or reservoir to the Erie canal, the conveyance gave to the grantee the fee of the land sufficient at least to enable it to construct and maintain a railroad over it.
    2. The grantee, by its purchase, took the fee to the prism and banks of the abandoned canal subject to the right of the State to conduct the waters of the feeders to the Erie canal by some arrangement not inconsistent with the grant. Where, therefore, after the grantee began the construction of its railroad, a suit by the State to restrain its construction was discontinued under an agreement whereby the grantee was to provide for the taking of the waters of a certain feeder to the Erie canal, and, upon its application, a permit was granted for the construction of its railroad along the banks of the abandoned canal, and the grantee built its railroad in accordance with the deed and the contract, the land on which the road was built was owned by the grantee in fee and an assessment of a special franchise tax upon its successor in title, on the theory that the railroad runs over public lands under a permit, is illegal.
    3. Nor may a special franchise tax be legally assessed upon relator’s bridges crossing the Barge canal at points where it owned its right of way in fee prior to the construction of such canal, but portions of which had been appropriated by the State under the authority of the Barge Canal Acts (L. 1903, ch. 147, and L. 1915, eh. 511), where, pursuant to the provisions of such statutes and in order to adjust the damages, the State had entered into an agreement with the relator and in accordance therewith had delivered to it a quitclaim deed of an easement to use and occupy forever for railroad purposes the premises described, which deed recited that such premises were no longer considered necessary for the Barge canal. Such arrangements do not constitute a franchise and the railroad company operates under a grant of property rights from the State.

      People ex rel. W. N. Y. & P. Ry. Co. v. Knapp, 209 App. Div. 760, reversed.
    (Argued November 24, 1925;
    decided December 15, 1925.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered June 27, 1924, which reversed, on certiorari, an order of Special Term entered upon the report of a referee reducing certain special franchise tax assessments.

      Frank Rumsey for appellant.
    Relator’s occupancy of the premises described as “ track lengthwise on State land (old Genesee Valley canal — within blue lines) from south line of West avenue to north right-of-way line of Barge canal excluding crossings listed separately ” is not under a special franchise but as an owner of the premises under a grant.from the State. (Osborne v. Auburn Tel. Co., 189 N. Y. 393; City Club of Auburn v. McGreer, 198 N. Y. 609; Blackman v. Striker, 142 N. Y. 555; Myers v. Bell Telephone Co., 83 App. Div. 623.) The Barge canal crossing of relator’s railroad described as the Gates-Rochester crossing does not constitute a special franchise. (People ex rel. R. S. & E. R. R. Co. v. Moroney, 224 N. Y. 114; People ex rel. Lehigh Valley Ry. Co. v. State Tax Comm., 206 App. Div. 549; 240 N. Y. 591; People ex rel. Hudson & M. R. Co. v. Board of State Tax Comrs., 203 N. Y. 199; People ex rel. L. I. R. R. Co. v. Tax Comrs., 148 App. Div. 751; 207 N. Y. 683.) The Chili-Rochester crossing of the Barge canal by relator’s railroad is not under a special franchise. (People ex rel. N. Y. C. & H. R. R. R. Co. v. Walsh, 211 N. Y. 90.) Relator’s railroad was in existence at the Gates-Rochester and the Chili-Rochester crossings many years before the construction of the Barge canal at said points; and because of such prior occupation by relator its occupancy is not under special franchises. (People ex rel. N. Y. C. R. R. Co. v. Woodbury, 203 N. Y. 167; People ex rel. L. I. R. R. Co. v. Tax Comrs., 148 App. Div. 751; 207 N. Y. 683; People ex rel. H. & M. R. R. Co. v. State Board of Tax Comrs., 203 N. Y. 119.)

      Albert Ottinger, Attorney-General (Frederic J. Merriman, Alexander L. Saul of counsel), and George B. Draper for respondents.
    The lands in question are canal lands and are occupied and crossed by relator’s railroad under and by virtue of the provisions of the general Railroad Law of 1850. Such occupation and crossing constitute that species of property called special franchise. (People ex rel. R. S. & E. R. R. Co. v. Moroney, 224 N. Y. 114; People v. Fisher, 190 N. Y. 468-478; People ex rel. N. Y. C. R. R. Co. v. Walsh, 211 N. Y. 90; People ex rel. N. Y. C. & H. R. R. R. Co. v. Woodbury, 203 N. Y. 167; People ex rel. L. I. R. R. Co. v. Tax Comrs., 148 App. Div. 751; 207 N. Y. 683; People ex rel. H. R. & P. C. R. R. Co. v. State Board of Tax Comrs., 215 N. Y. 507.) Relator’s occupancy at the Rochester-Chili Barge canal crossing constitutes a special franchise. The crossing is one over canal lands and is crossed by the railroad under and by virtue of the provisions of the general Railroad Law of 1850. (People ex rel. N. Y. C. R. R. Co. v. Walsh, 211 N. Y. 90.) Assessment “ 15. Track lengthwise on State land- within blue line. From south line of West avenue to north right of way line of Barge canal, excluding crossings listed separately,” the locus in quo, is canal land and, therefore, a public place. The crossing or occupation of said land by the tracks of a railroad is a special franchise and taxable as such. (People ex rel. N. Y. C. & H. R. R. R. Co. v. State Board, 167 App. Div. 535; 216 N. Y. 651.)
   Crane, J.

The relator has been assessed for certain alleged special franchises. It claims to operate its railroad at the places designated under easements conveyed by the State and over its own property, and not by reason of any special privilege or franchise.

The matter was referred to ex-judge Nathaniel Foote as official referee, who reported in favor of the relator. The Appellate Division has reversed, and found in favor of the State.

The franchises have been considered under three different heads, and I will treat them the samé way, taking up first the Lengthwise occupation of the former Genesee Valley canal lands,” so called in this proceeding. The State says the railroad runs over public lands under a permit; the railroad claims to own the right-of-way.

The Genesee Valley Canal Bailroad Company was organized under chapter 140 of .the Laws of 1850, and in November of 1912 was merged with and became the Western New York and Pennsylvania Bailway Company, the relator herein. ' It operates a railroad between the Erie canal in the city of Bochester, county of Monroe, and the village of Millgrove or the city of Olean, in the county of Cattaraugus, substantially along the lines of the old Genesee Valley canal. This canal was abandoned by the State and the property sold to the relator, pursuant to chapter 404 of the Laws of 1877 and chapter 326 of the Laws of 1880. This latter act authorized and required the Commissioners of the Land Office to sell and convey the title of the State in and to the banks and prism of the Genesee Valley canal, between the Erie canal in the city of Bochester, and the village of Millgrove or of Olean in the county of Cattaraugus, to the company which would give a bond in the penal sum of $700,000 to construct and operate within two years a standard gauge railroad between said points and over the land of said canal. The Genesee Valley Canal Bailroad Company was organized July 16, 1880, and purchased the canal lands under this act, executed the bond and received the deed from the State. The deed, dated November 6, 1880, grants to the Genesee Valley Canal Bailroad Company “ all the right, title and interest which the state of New York has in and to the banks and prism of the Genesee Valley Canal, between the Erie canal, in the city of Bochester, county of Monroe, and the village of Millgrove, in the county of Cattaraugus. Together with all and singular the rights, belonging or in any wise appertaining, etc. * * * Also excepting and reserving to ourselves the right to retain that portion of said Canal from the point where Allen’s creek feeder enters the same to the Erie canal. Also excepting and reserving to ourselves, the right to retain any portion of the prism of said canal for the purpose of conducting the waters from any feeder and reservoir to the Erie canal.”

This conveyance gave to the railroad company the fee of the land sufficient at least to enable it to maintain and construct a railroad over it. This was the purpose of the act of 1880. Under it, upon giving the bond and receiving the deed, the company was compelled to construct its railroad within two years.

It cannot be that the' State retained the fee title to this portion of the canal land. The last clause, above quoted, says that the grant excepts the right to retain any portion of the prism for the purpose of conducting waters from any feeder. If this meant that the State excepted the fee of the land for such purpose, the whole grant was nullified. The railroad company by its purchase took the fee to the prism and banks of the canal, subject to the right of the State to conduct the water from the feeders to the Erie canal by some arrangement thereafter to be made, or plan adopted by its agents or engineers, not inconsistent with the grant. Two things were to be done. The railroad was to be constructed and operated over the canal lands purchased in fee by the railroad company, and the State was to get the water from the feeders into the Erie canal also over or through said land. The railroad company got the fee sufficient for its railroad purposes and the State got this right or easement.

The railroad company began the construction of its railroad when suit was brought by the Attorney-General at the instance of the Superintendent of Public Works to restrain its construction. The suit was discontinued upon an agreement executed by the railroad company to provide for the taking of the water in Allen’s creek feeder to the Erie canal. The Genesee Valley Canal Railroad Company on September 28, 1881, presented to the Superintendent of Public Works an application for written permission to construct its railroad along the banks of the Genesee Valley canal, agreeing to lay at its own cost iron pipes to conduct the water from the feeder to the Erie canal or to the Genesee river feeder. A permit was granted upon these terms and an agreement made in accordance therewith on the eighth day of November, 1882. The company agreed in no wise to fill up the prism of the canal now used as a feeder or to interfere with the flow of the water from Allen’s creek to the point specified. As heretofore stated, the railroad company constructed its railroad upon the land or banks designated by this agreement. Likewise, the State obtained the water through the pipes from the feeders to the Genesee feeder and the Erie canal.

In view of what I have stated about the original deed or grant, it is apparent that the State intended to grant to the railroad company the land in fee, upon which its road was to be constructed. After the contract, the company built its railroad in accordance with the deed and the contract. Thus the land designated for the railroad in no way interfered with the water from the feeders and the right retained by the State did not obstruct the railroad. The land on which the road was built, therefore, was owned by the company under its deed from the State authorized by the act of 1880.

The State, several years before the assessments here in question, discontinued the use of Allen’s creek feeder to supply the Erie canal.

This assessment, known as the lengthwise occupation of former Genesee Valley canal lands, proceeds upon the theory that the State owns these lands in fee, and that the railroad company operates under the permit that the Public Works Commissioner issued in 1881. The Attorney-General asserts in his brief the following: The assessment in question relates to and covers the occupation of the land described in the permit granted by the Superintendent of Public Works on the 30th day of September, 1881, and is made upon the theory that such lands, being canal lands, are a public place within the meaning of the tax law,, and that the occupation thereof including the value of all franchises, rights or permission to construct, maintain or operate a railroad on or through such public place constitutes that species of real property called Special Franchise.’ ”

The use,” says he, of such lands for canal purposes had been discontinued, but, notwithstanding this fact, the lands were still retained and owned by the State as canal lands, and were, therefore, a public place within the meaning of the Tax Law.”

For the reasons above stated, I do not agree with this claim of the Attorney-General. It seems to me as if the purpose and wording of the acts referred to gave to the railroad company under its deed of purchase the fee of the land upon which its road was to be constructed, as arranged by the subsequent permit and agreement. Of course we are now dealing only with that portion affected by this assessment.

As to the assessment termed for convenience “ The Gates-Rochester Barge Canal Crossing,” we have the following facts: The new Barge canal crosses the railroad, which now goes over it- on bridges which have been constructed. It is claimed that these crossings constitute special franchises which can be assessed and taxed. At these points the relator owned its right-of-way in fee by deed acquired in 1882, and since the time of the railroad construction maintained and operated its railroad over its own right-of-way up to the time that the Barge canal was constructed.

The Barge Canal Act (Laws of 1903, chap. 147, as amd. by Laws of 1915, chap. 511) authorized the State to appropriate in the manner therein designated, lands for the Barge canal. The State could take any and all rights and property necessary for this purpose. Section 5 of chapter 511 of the Laws of 1915 provides that in the event that any land or structures, in whole or in part, heretofore taken, shall be found not to be necessary for canal purposes, the State Engineer shall so report to the Canal Board, and the Superintendent of Public Works shall have authority to execute and deliver to the owner from whom the property was taken a quitclaim deed covering such lands, structures, waters, et cetera. Acting under this authority, an agreement was made between the State agents and the relator on the fourth day of March, 1916, followed by a deed the third day of April, 1917, accomplishing the following. The deed recites that the State had formerly appropriated from the Western New York and Pennsylvania Railway Company a parcel of land for Barge canal purposes, and that an agreement of March 4, 1916, had been executed to adjust the damages wherein the State agreed to execute and deliver to the Western New York and Pennsylvania Railway Company a quitclaim deed of an easement to use and occupy forever for railroad purposes the premises described, and further recites that the easement for railroad purposes was no longer considered necessary for the Barge canal, and concludes with the following grant: “ Now, therefore, pursuant to and in accordance with the foregoing resolution of the Canal Board of the State of New York and the statutes in such cases made and provided, the party of the first part * * * has sold and by these presents does grant, release and quitclaim unto the said party of the second part * * * an easement to use and occupy forever for railroad purposes the lands in question, describing them.

We have held in People ex rel. New York Central & Hudson River Railroad Co. v. Walsh (211 N. Y. 91, 96, 97) that such grant of an easement was legal and violated no constitutional provision. The court said of article 7, section 8, of the State Constitution: “ It does not interdict the legislature from authorizing the appropriation of an estate less than the fee in the lands required for the canals. * * * The constitutional provision did not prohibit the state from agreeing to convey to the relator the permanent easement in the appropriated lands.”

Here we have a railroad running over its own right-of-way. It is obliged to run. The Barge canal passes under it, and the road has to cross it on a bridge. The Barge Canal acts, above referred to, provide for such crossings. The State does not need the railroad for the canal; it needs certain lands which it has taken, and, therefore, agrees with the railroad company that it may continue to operate its railroad over the Barge canal on a bridge in place of its former fee land. To accomplish this purpose, and to quiet all question, the State deeds an easement to the railroad for this purpose. The railroad has the bridge as an easement instead of the land which it formerly owned in fee. The result is not unlike the arrangement or exchange of properties made in People ex rel. Long Island R. R. Co. v. State Board of Tax Commissioners (148 App. Div. 751; 207 N. Y. 683).

We do not think that these arrangements constituted a franchise. The railroad company operated under a grant of property rights from the State.

People ex rel. Rochester, Syracuse & Eastern R. R. Co. v. Moroney (224 N. Y. 114) is not in point, as the State merely granted to the railroad company after obtaining the fee, a revokable license to operate. This was held to be a franchise, mere permission to cross public property.

As to the Chili-Rochester Barge canal crossing, the facts with some exceptions are similar to those just stated in the Gates-Rochester Barge canal crossing assessment. There was an appropriation, a contract and a deed dated February 15, 1917. This deed recites a settlement made for damages caused by the appropriation, and conveys to the railroad company an easement in the lands lying in the town of Chili, similar to that contained in the so-called Gates deed, above referred to. I understand that if our ruling in the Gates crossing assessment be correct, it follows that the same reasoning applies to the facts in this Chili Barge crossing assessment.

For the reasons here stated, the assessments were illegal; the order of the Appellate Division should be reversed, and the judgment entered upon the report of the referee in this proceeding affirmed, with costs in this court and in the Appellate Division.

His cock, Ch. J., Pound, McLaughlin, Andrews and Lehman, JJ., concur; Cardozo, J., not voting.

Order reversed, etc.


text:
    Louise Ellis, Respondent, v. Anna M. Kelsey et al., Appellants.
    Executors and trustees — decedent’s estate — action to establish legitimacy of alleged heir — judgment directing payment by executor and trustee to plaintiff of income previously paid to others — in absence of finding of bad faith allowance of interest only at rate paid by banks acting as depositories proper — executor and trustee entitled to commissions where they acted in good faith — entitled to allowance for counsel fees in defending action where plaintiff charged bad faith and sought to penalize them and deprive them of commissions — payment of principal of mortgages out of income — judgment should direct equitable adjustment where plaintiff likely to receive remainder — enforcement of participation by way of subrogation.
    1. Where, by the terms of an interlocutory judgment, entered upon a finding sustained by sufficient evidence that plaintiff is the daughter and sole heir of a decedent, it is adjudicated that the defendants, executor and trustee, account to the plaintiff for moneys which, by the terms of the will from which they derived their authority, were payable to the heirs of said decedent and which they had been paying to others under the mistaken supposition that they were such heirs and pursuant to decrees on two accountings to which plaintiff had not been cited, where there is no finding of bad faith on the part of such executor and trustee and from the circumstance that both before and after the dates of the accountings plaintiff made no claim as heir and in view of other acts and proceedings there is no basis for a finding of bad faith on their part, it is proper to treat the executor and trustee as if they were holders of such funds awaiting the final decision of the courts as to the person ultimately entitled to them and charge them only the current rate of interest allowed by banks acting as depositories.
    2. It being determined that the executor and trustee acted in good faith in paying money to the wrong parties which they must now pay to the plaintiff and there being no question as to the amount received and paid out, they are entitled to their commissions thereon.
    3. A contention that the executor and trustee were not justified in employing counsel, to litigate in this proceeding the question of plaintiff’s legitimacy, cannot be sustained where plaintiff insisted that their actions were taken in bad faith and she sought to charge them with interest as a penalty and deprive them of their fees and commissions because of such, bad faith. Under such charges the executor and trustee were justified in employing counsel to protect their interests and a reasonable allowance to them for counsel fees was proper.
    4. It appearing that the executor had paid out of income a certain sum to reduce the principal of certain mortgages on property belonging to the trust estate and that, in all likelihood, plaintiff will receive the remainder after the life estate falls in, the final judgment should provide that upon payment by the executor to plaintiff of such sum with interest at three per cent he be adjudged to have a lien upon any interest in the principal coming to plaintiff in remainder and if she has in any way disposed of her remainder interest or incumbered the same that she be not entitled to payment of such sums.
    5. Any rights the executor may have to enforce participation by way of subrogation in the mortgages shall not be prejudiced by such payment to plaintiff.

      Ellis v. Kelsey, 214 App. Div. 784, modified.
    (Argued December 2, 1925;
    decided December 15, 1925.)
    Appeal from a judgment of the Appelate Division of the Supreme Court in the first judicial department, entered July 8, .1925, affirming a final judgment in favor of plaintiff entered after affirmance by the Appellate Division of an interlocutory judgment of Special Term adjudicating that plaintiff was the legitimate daughter and sole heir of George M. Chapman, deceased, and directing the trustee under the will of Louisa W. Chapman, deceased, and her executor to account for certain income directed by the said will to be paid to those persons who would be the heirs of said George M. Chapman at the date of the death of the said testatrix.

      Henry L. Sherman, Harold Swain, Lionel S. Popkin and Robert W. Cromley for Title Guarantee and Trust Company et al., appellants.
    The judgment below is wholly unsupported by such evidence as is required by law, and judgment should have been entered in defendants’ favor. (Hamlin v. Stevens, 177 N. Y. 39; Matter of Van Slooten v. Wheeler, 140 N. Y. 624; Holt v. Tuite, 188 N. Y. 17; Rosseau v. Rouss, 180 N. Y. 116; Walbaum v. Heaney, 104 App. Div. 412.) The judgment depriving the trustee of all commissions is wrong and should not be allowed to stand. (Matter of Edelmeyer, 157 App. Div. 773; Matter of Baker, 72 App. Div. 211; 172 N. Y. 612; Matter of Brintnall, 40 Misc. Rep. 67.) The referee’s conclusion that the equitable rate of interest at three per cent to be charged upon payments by the trastee to the supposed beneficiaries pursuant to the surrogate’s decree of April 25, 1913, should be upheld. It is unjust to surcharge' the trustee with interest at six per cent. (Herzog v. Title Guarantee & Trust Co., 148 App. Div. 234; 210 N. Y. 531; Matter of Peoples Trust Co., 169 App. Div. 699; Woerz v. Schumacher, 161 N. Y. 530; Matter of Barnes, 140 N. Y. 468; Price v. Holman, 135 N. Y. 124; Matter of Nesmith, 140 N. Y. 609.) Plaintiff’s objection to the credit shown in the trustee’s account for legal services and disbursements should not have been sustained; the referee’s finding should have been upheld. (Perry on Trusts, § 328; King v. Talbott, 50 Barb. 453; 40 N. Y. 86; Roosevelt v. Roosevelt, 6 Abb. [N. C.] 447; Smith v. Johnson, 200 App. Div. 811.)

      Frank C. Laughlin, Stewart W. Bowers and Louis A. Rosen for Samuel Keeler, as executor of Louisa W. Chapman, deceased, et al., appellants.
    The executor’s commissions should have been allowed. (Averill v. Taylor, 8 N. Y. 44; Matter of Ehrsam, 37 App. Div. 272; Desbard v. Churchill, 53 N. Y. 192; Buck v. Cleveland, 143 App. Div. 874; Roland v. Morgan, 3 Dem. 289; Matter of Schaefer, 34 Misc. Rep. 34; Matter of Ingersoll, 95 App. Div. 111; Matter of Rutledge, 162 N. Y. 31; Matter of Edelmeyer, 157 App. Div. 773; Matter of Baker, 72 App. Div. 211; 172 N. Y. 612.) The executor should not have been surcharged with the sum of $3,840, representing the amounts paid by him for principal and interest on the mortgages on the real property upon which testatrix held an undivided one-half interest for the life of her son, because said payments were made pursuant to the agreement of March 16, 1898, between Louisa W. Chapman and Cora Chapman and the Title Guarantee and Trust Company, which said agreement did not terminate by its terms without the consent of Cora Chapman, which concededly has never been given. It is to be remembered that the plaintiff’s only claim with respect to this money' is under the will of this appellant’s testatrix, Louisa W. Chapman. (Kernochan v. Murray, 111 N. Y. 306; Terwilliger v. Ontario C. & S. R. R. Co., 149 N. Y. 86; Assets Realization Co. v. Roth, 226 N. Y. 370.)

      Patrick E. Callahan for Hawley Chapman, appellant.

      Eugene A. Sherpick, Harold R. Medina, Leander I. Shelley, William Bittle Symmes and Harold A. Herrick for respondent.
    The trustee’s first point, that the judgment below is wholly unsupported by such evidence as is required by law, is untenable. The arguments therein contained are predicated upon a rule of law applicable only to contract actions. Furthermore, those arguments are an attempt to engage this court in a controversy as to the weight of evidence. (Hynes v. McDermott, 91 N. Y. 451; Hawkins v. Mapes-Reeve Const. Co., 178 N. Y. 236; Ostrom v. Greene, 161 N. Y. 353; Costello v. Costello, 209 N. Y. 252; Villard v. Villard, 219 N. Y. 482; Race v. Krum, 222 N. Y. 410.) Under all the facts in this case and under the interlocutory judgment the plaintiff is entitled to six per cent interest upon all the moneys due her. (Lawrence v. Grout, 121 App. Div. 701.) The trust estate was not attacked in this proceeding; it is a controversy solely- between respective claimants. The disbursements for counsel fees were made by the trustee on behalf of one set of claimants. They cannot be charged against the plaintiff. To do so would be to make her pay her adversaries’ expenses. The award of costs against the defendants determined that they should not receive counsel fees. (Matter of Howell, 215 N. Y. 466; Matter of Holden, 126 N. Y. 589; Savage v. Sherman, 87 N. Y. 279; Blair v. Cargill, 111 App. Div. 853; Matter of Welling, 51 App. Div. 355; 53 App. Div. 639; Hosack v. Rogers, 9 Paige, 461; Matter of McEckron, 55 App. Div. 147; Matter of McDowell, 202 App. Div. 568; Jewett v. Schmidt, 45 Misc. Rep. 471; Matter of Long Island Loan & Trust Co., 157 App. Div. 310.) Payments in reduction of principal should have been charged by the executor and by the trustee against the principal account. To use income in payment of principal indebtedness constitutes an invalid accumulation in violation of the statutes. (Hascall v. King, 162 N. Y. 134; Hafner v. Hafner, 34 Misc. Rep. 65; 62 App. Div. 316; 171 N. Y. 633.) The contention of the executor that he should not have been surcharged with the sum of $3,840 representing the sums paid by him out of income in reduction of principal on mortgages, is without merit and inapplicable to the facts in this case. (Farmers’ Loan & Trust Co. v. Wilson, 139 N. Y. 284; Farmers’ Loan & Trust Co. v. Winthrop, 238 N. Y. 477; Weber v. Bridgman, 113 N. Y. 600.)
   Crane, J.

We are of the opinion that there was a question of fact regarding the legitimacy of the plaintiff and that there is sufficient evidence to sustain the finding that the plaintiff is the daughter of George M. Chapman, born to him by his wife, Jane Compton Chapman. The interlocutory judgment brought up for review on appeal from the final judgment is, therefore, affirmed.

By the terms of the interlocutory judgment the executor and the trustee of the will of Louise W. Chapman were required to account to the plaintiff as the heir of George M. Chapman for the moneys which they had received in accordance with the provisions of that will and which were payable to the heirs of George M. Chapman as they existed May 13, 1900, the date of the death of Louise W. Chapman. The executor and the trustee accounted and the matter was referred to John B. Doyle, as referee, to take and state the account.

The executor and trustee on their previous accountings of 1910 and 1912 before the surrogate of Kings county had omitted to cite the plaintiff and in accordance with the decrees therein entered had paid over the balance in their hands to the individual defendants representing the heir of George M. Chapman. The interlocutory judgment in this case determines that they were in error; that the plaintiff was the heir of George M. Chapman, not Julia, the sister of George, and that the money paid out must be returned.

The referee to take the account reported that the executor and the trustee in omitting to cite the plaintiff in the Surrogate’s Court and in paying over the money to the defendants had acted in good faith, and should not be charged on the various amounts directed to be paid back, six per cent interest as in the nature of a penalty but should only be charged three per cent, the current rate of interest allowed by banks acting as depositories. In other words, he treated the executor and the trustee as the holders of these funds awaiting the final decision of the courts as to the person ultimately entitled to them. In this we think he was correct. There is no finding by the trial court that the executor and the trustee acted in bad faith. There are findings to the effect that the Title Guarantee and Trust Company, the trustee, knew that the plaintiff was the daughter of George M. Chapman, and that Keeler, the executor, knew that she claimed to be legitimate. If these findings stood by themselves, it would be difficult to understand why the plaintiff was not cited upon their accountings in the Surrogate’s Court. The plaintiff’s actions, however, together with those of her mother, Jane Chapman, have been quite strange to say the least. I do not intend to review and could not within proper limits all the facts; it will suffice to say that the plaintiff had been in the Supreme Court in 1907 and 1908 regarding her claims to funds coming through George M. Chapman and while testifying to her relationship made no claim as an heir. The money she sought in these actions could have been obtained by her under claim of heirship in proper proceedings therefor. She alleged the heirship of others. In 1914 in proceedings before the surrogate of Kings county in which the accountings of this executor and trustee were referred to, she again sought to enforce a deed or agreement regarding the moneys here in question, and here again she did not insist upon her heirship. Resort to this proceeding before the surrogate would have been unnecessary if she had then known or thought that she had inherited any property as an heir of George M. Chapman. If both before and after 1910 and 1912, the dates of the accountings, she did not claim as heir, it is not likely she would have made such a claim if she had been cited upon the accountings; in fact it is conceded that she did not know of her rights as an heir until 1916. The trial court found as follows: “ That until 1916 the plaintiff believed that her rights as heir of George M. Chapman were included in the two releases given by her mother in 1872 and 1893 and running from her, her heirs and assigns to George M. Chapman and his executors respectively, and she did not learn the true facts until Mr. Bacon told her just before this action was commenced in 1916.”

It is fortunate for her that her rights were not adjudicated in the accountings and before she and her lawyers knew what they were.

Under these circumstances and in view of the other acts and proceedings which we do not stay to mention we do not think that the executor and trustee acted in bad faith. This being so the final judgment which set aside the report of the referee in this particular must be modified and the charge of six per cent on all the funds directed to be paid back must be reduced to three per cent in accordance with the referee’s report.

We agree with the referee that the decision requiring the executor and trustee to pay to the plaintiff the amount due under the terms of the will of Louise W. Chapman with interest thereon ” did not compel him to allow six per cent interest.

Another conclusion follows this finding of good faith upon the part of the executor and the trustee. They received and paid out the money. Acting in good faith they paid it to the wrong party under the decree of the court. They must now pay it to the plaintiff. There is no question as to the amount received and paid out. This passes through the hands of the executor and the trustee. The referee reported that they were entitled to their commissions. The final judgment disallowed the report of the referee in this particular and refused fees and commissions on account of their bad faith. Having determined that the executor and trustee acted in good faith the final judgment must be modified in this particular and the report of the referee confirmed.

In this litigation the executor and the trustee employed lawyers to defend them. Attorney’s fees were also incurred by Clarence H. Kelsey and the other individual defendants to protect their individual rights. The plaintiff has insisted that the executor and the trustee should have stepped aside and permitted her to litigate the question of her legitimacy with the defendants and that the executor and trustee were not justified in employing counsel. This cannot be when she is insisting that their actions were taken in bad faith and has sought to charge them, and thus far has succeeded in charging them with six per cent interest as a penalty and has deprived them of their fees and commissions because of that bad faith. Under such charges the executor and trustee were justified in employing counsel to protect their interests, especially when the plaintiff by her previous proceedings and the actions and conduct of herself and mother had caused many of the complications. I do not speak of these complications in the spirit of criticism; I merely refer to them as conceded facts explained away by the plaintiff as stated in the above quoted finding. The referee accordingly allowed certain items of compensation to the executor and the trustee for lawyers’ fees. We think these were reasonable and that the final judgment should not have interfered with his report in this particular. The final judgment is, therefore, modified to allow these items.

We now come to the item of $3,840 paid out by the executor Keeler on underlying mortgages held by the New York Life Insurance Company to reduce the principal. Louise W. Chapman and her daughter-in-law, Cora Chapman, had made an agreement whereby the Title Guarantee and Trust Company was to act as agent in collecting the income and applying it, or a portion of it, to interest, taxes, etc., and in reduction of the principal of the mortgages if required. After the death of Louise W. Chapman this agency ended and the referee was right in so finding. The executor Keeler, however, in order to preserve the life estate from being wiped out under threatened foreclosure paid out at various times from the income of the life estate this sum of $3,840 in the reduction of the principal of the mortgages. The referee found that the executor Keeler should be surcharged with this amount and directed that it be paid to the plaintiff plus interest, but recognized the inequity of his finding and tried to remedy it by suggesting that the executor procure certificates of participation in the mortgages from the New York Life Insurance Company. We agree that a situation has arisen which calls for equitable relief if it can be granted. The situation is peculiar to this case and equity procedure exists for the very purpose of making these adjustments. In all likelihood the plaintiff, as heir of George M. Chapman, will receive the remainder after the life estate falls in. It is said to be of great value. The will of George M. Chapman gave a life estate to his son Hawley, and his wife Cora, and the remainder to their children if they have any. They never have had any children and are not likely to, for reasons that need not be stated. The remainder on the failure of children was undisposed of. It will, therefore, pass to George M. Chapman’s heir who is the plaintiff according to the decision of this case. While she is over eighty years of age yet her vested interest may pass so far as we can judge by assignment or devise. It would not be right for her to receive this remainder enhanced in value by $3,840 due to the reduction of the mortgage principal out of Keeler’s money. If he paid out money to reduce the mortgages and the plaintiff is to benefit by it, he should be protected if it is possible. We, therefore, direct that the final judgment be amended by providing that upon his payment to the- plaintiff of the $3,840 with interest at three per cent that he be adjudged to have a hen upon any interest in George M. Chapman’s property coming to her in remainder which lien shall bind her, her heirs and assigns. If the plaintiff has in any way disposed of her remainder interest or incumbered the same, then we adjudge that she has had the benefit thereof and shall not receive this item of $3,840 and interest from Keeler, the executor. The judgment is further modified by providing that the payment to the plaintiff of this amount shall not prejudice whatever rights Keeler may have to enforce participation by way of subrogation in the mortgages held by the New York Life Insurance Company should he prefer this remedy. Whether these mortgages still exist and are now a lien upon this property we do not know. The mortgagee is not before us.

As to the,present contention of the committee of Hawley Chapman, the courts below have construed the will of Louise W. Chapman as giving to the heir of George M. Chapman, living May 13, 1900, the balance of the income from the life estate over and above that necessary for the ample support and maintenance of Hawley ' Chapman. We adopt this construction.

Our conclusion, therefore, is that the final judgment should be modified by approving the report of the referee in all the particulars herein mentioned with the exception of this item of $3,840, which is disposed of as already stated and, as thus modified, the final judgment should be affirmed, with a separate bill of costs to each party appearing by counsel payable out of the estate.

Pound, McLaughlin, Andrews and Lehman, JJ., concur; Hiscock, Ch. J., absent; Cardozo, J., not voting.

Judgment modified, etc.


author: Hiscock, Ch. J.

text:
    Louise M. Bennett, as Administratrix of the Estate of Jacob Bennett, Deceased, Respondent, v. The Town of Kent, Defendant, and The City of New York, Appellant.
    Negligence — highways — New York city — maintenance of causeway through reservoir — duty of city to maintain highway in reasonably safe condition for travel — not bound, as matter of law, to erect barriers — action to recover for death through drowning of driver of automobile — erroneous charge that it was duty of city to maintain barriers between reservoir and highway.
    1. The city of New York, in maintaining a causeway through one of its reservoirs outside the city, under such circumstances that it assumes the same responsibility for its safe condition for travel as for one of its streets, is bound to exercise reasonable prudence to maintain its highway in a reasonably safe condition for travel, and travel includes such incidental operations as the passage by each other of vehicles and, if necessary, the moving of such vehicles or one of them upon the side of the highway.
    2. The city, however, is under no duty, as a matter of law, to erect barriers and, in an action to recover for the death through drowning of the driver of an automobile who slipped into the water while attempting to get his car back on the roadway, it having been shoved to one side to let another go by, it is reversible error for the trial justice to instruct the jury, in his main charge and in passing upon requests, that it was the duty of the city, as matter of law, to maintain barriers between the reservoir and the highway. It was the duty of the city to erect barriers only if its obligation to keep its highway in a reasonably safe condition for travel required it to do so, and it cannot be said, as matter of law, that the city ought to have apprehended, in the exercise of reasonable prudence, that such an accident might happen in broad daylight unless barriers were erected to prevent it.

      Bennett v. Town of Kent, 213 App. Div. 873, reversed.
    (Argued October 29, 1925;
    decided December 15, 1925.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered April 17,1925, unanimously affirming a judgment in favor of plaintiff entered upon a verdict.

      George P. Nicholson, Corporation Counsel {John F. O’Brien, Elliot S. Benedict and Charles C. Marrin of counsel), for appellant.
    The court committed reversible error in that part of the charge respecting the duty of landowners to erect barriers and to guard excavations on their property. (King v. Village of Fort Ann, 180 N. Y. 496; Jaffy v. N. Y. C. & H. R. R. R. Co., 118 Misc. Rep. 147, 149.)

      John E. Mack and Willis H. Ryder for respondent.
    The charge of the trial court that when an owner makes an excavation on his own land so near to the highway as to render travel thereon dangerous, and fails to guard it, he is chargeable with negligence if a person sustains injury therefrom in the absence of negligence on the part of the party injured contributing thereto, is a correct exposition of the law. (Friedel v. Coffin, 155 App. Div. 559; Donnelly v. City of Rochester, 166 N. Y. 315; Healy v. Vorndran, 65 App. Div. 353.)
   Hiscock, Ch. J.

The defendant, City of New York, maintained a causeway through one of its reservoirs in the county of Putnam under such circumstances that it assumed the same responsibility for its safe condition for travel as it would for one of its streets. This causeway consisted of a portion designed for travel which was about eight and one-third feet wide and of a grassy slope ten feet wide on one side of the traveled portion and fourteen feet on the other, running down to a layer of rip-rap' which in turn ran into the water. As I understand the map, the crown of the causeway was about four feet above the level of the water and there is no doubt- that there was quite a steep slope from it to the water.

The intestate, who was working for some contractor, on the morning of the day of the accident gathered some companions in an automobile and rode around the country doing more or less drinking. At about four o’clock in the afternoon he started to cross this causeway in the automobile and the’ engine stalled. While in this situation a mail carrier approached from the other direction with a horse and wagon. In order to let him go by intestate and his companions and the mail carrier shoved the automobile off on one side of the causeway so that the outer front wheel rested on the rip-rap. After the carrier got by the operation was undertaken of getting the car back on to the roadway and while attempting this proceeding intestate was on the side of the automobile towards the water. Presently, in some manner not well explained, he slipped off the bank into the reservoir and, notwithstanding that ample attempts were made to save him, he drowned, although the water was not deep. There had been a fence constructed along this causeway between the grass slope and the rip-rap but apparently this had become decayed and of no great use as a guard at the time of the accident.

Under the circumstances the defendant was bound to exercise reasonable prudence to maintain its highway in a reasonably safe condition for travel, and travel would include such incidental operations as the passage by each other of vehicles and if necessary the moving of such vehicles or one of them upon the side of the highway.

The trial justice correctly charged the jury concerning the obligations of the defendant in respect of the highway proper and if he had stopped there we should find no occasion for reversing the judgment. He, however, separated the reservoir from the highway and considering it by itself charged the jury concerning the duties of the defendant with respect to that. He charged them that it was the duty of the defendant as matter of law to maintain barriers between the reservoir and the highway, simply leaving it to the jury to decide what the nature of those barriers should be. This imposed an undue burden upon the defendant. It was perfectly proper for it to maintain a reservoir by the side of its highway and it was not in the same position as a landowner who improperly constructs an excavation so near a highway that it is to be reasonably assumed that a traveler will fall into it. The whole situation of highway and reservoir was to be considered as an entirety and, as has been said, it was the duty of the defendant to take pains to keep its highway in a reasonably safe condition for travel, and if that obligation required it to erect barriers alongside its reservoir it was its duty to do so. That was the extent of its liability. It was under no duty as a matter of law to erect barriers and before a jury could find it guilty of negligence in not erecting such barriers it would be' obliged to say that the city ought to have apprehended in the exercise of reasonable prudence that some such accident as this might happen unless barriers were erected to prevent it. This cannot be said as a matter of law.

This erroneous view of the trial judge both in the main charge and in passing upon requests to charge was so thoroughly imbedded in the instructions to the jury that it gave a substantially wrong slant to the case and cannot be disregarded.

The judgments should be reversed and a new trial granted, with costs to abide the event.

Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ., concur.

Judgments reversed, etc.


author: Crane, J. Hiscock, Ch. J.

text:
    In the Matter of the Application of William H. Reynolds, Appellant, against James C. Cropsey, Justice of the Supreme Court of the State of New York, Respondent.
    Appeal — prohibition — courts — practice — order of Appellate Division denying writ of prohibition a final order — extraordinary term of Supreme Court has same jurisdiction and is subject to same rules of law as other terms ■—■ statutory provision that terms of court may be adjourned from day to day or to specified future day applies to extraordinary terms — no justification for adjournment without day subject to future order of judge — direction that term be “ continued ” until further order — words “ continued ” and “ adjourned ” synonymous when thus used — term “ continued ” or “ adjourned ” without day is ended so far as consideration of new business is concerned — pending indictments may be moved at any term of court — last entry in minutes decisive whether term has been adjourned or kept alive — “ recess ” indicates temporary suspension of proceedings■—court by taking “recess ” is not thereby kept alive for months for the purpose of reconvening and considering new business.
    1. An order of the Appellate Division denying a motion for a writ of prohibition is a final order and it is unnecessary to certify a question on granting permission to appeal to the Court of Appeals.
    2. An extraordinary term of the Supreme Court called by the Governor pursuant to section 153 of the Judiciary Law (Cons. Laws, ch. 30) is nothing more or less than an additional term of court appointed for the time and place, to be held by the justice designated. When created it becomes a term of the Supreme Court with the same jurisdiction that belongs to any other term and is to be conducted in accordance with the rules of law governing all other terms of court with the exception of the designation of the judge.
    3. The provision of section 7 of the Judiciary Law, that any term of a court of record “ may be adjourned from day to day, or to a specified future day, by an entry in the minutes,” is applicable generally to all terms of court held as provided by law — to an extraordinary as well as to the other terms of court. The justice may keep the term alive by adjourning from day to day or to a specified future day by an entry in the minutes, but there is nothing to justify Mm in adjourmng Ms term without day subject to his future order. An adjournment sine die ends the term.
    4. Where, therefore, the justice presiding at an extraordinary term of the Supreme Court directs that the term be “ continued until further order of court,” the term comes to an end and cannot, after a lapse of eleven months, be revived, in the discretion of the judge, for the consideration and disposal of new business. The words " continued ” and “ adjourned ” when used in this connection mean one and the same tMng, and, when the extraordinary term was ‘ continued ” without day, it was “ adjourned ” without day and thus came to an end. Nor is tMs affected by the fact that there are indictments pending wMch have been found at tMs extraordinary term and remain undisposed of. These indictments are pending in the Supreme Court, not any particular term thereof, and may be moved for trial at any term of the court.
    5. In any event, the last entry in the minutes supersedes whatever may have been done before for the purpose of adjourning or continuing a term of court and is decisive of the question whether the term has been kept alive so that it may be reconvened. Where, therefore, by the minutes, it appears that at a date subsequent to the entry therein of the order that the term be, “ continued,” the court reconvened and a “ recess ” was taken, the meamng and effect of a “ recess ” become controlling. A “ recess ” of a term of court indicates a temporary suspension of its activities. It has never been the practice or the understanding that a court by taking a recess could be kept alive for months to the end of being then unexpectedly reconvened for the purpose of taMng hold of new business. Such cessation of the proceedings of a court is not a brief and temporary suspension of its activities keeping it alive for further business; it is an abandonment of the term of court wMch results in its death and termination.

      Matter of Reynolds v. Cropsey, 215 App. Div. 683, reversed.
    (Argued November 25, 1925;
    decided December 18, 1925.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered November 6, 1925, which denied a motion for an order of prohibition to restrain a justice of the Supreme Court from reconvening an extraordinary term of said court for the re-trial of an indictment charging the petitioner with the crimes of grand larceny, misappropriation by a public officer and for wrongfully converting and paying out money belonging to a city.

      Abel E. Blackmar, Alfred M. Schaffer, Henry A. Uterhart and Peter P. Smith for appellant.
    The extraordinary Trial Term appointed to be held on April 7, 1924, in and for Nassau county, has terminated by reason of having been adjourned sine die. (Tipling v. Cole, 21 Ont. 276; Work on Courts, 81; State v. Ross, 118 Mo. 46; People ex rel. Saranac L. &. T. Co. v. Supreme Court, 220 N. Y. 487; Saranac Land & Timber Co. v. Roberts, 187 App. Div. 361; 227 N. Y. 188; Myers v. East Bench Irr. Co., 32 Utah, 215; Irwin v. Irwin, 2 Okla. 180; Northrup v. People, 37 N. Y. 203; People v. Brodwell, 2 Cow. 445; People v. Clews, 4 Abb. [N. C.] 256; Stovell v. Emerson, 20 Mo. App. 322.) The adjournment taken on November 5, 1924, was intended as a final adjournment, sine die. (People v. Draper, 28 Hun, 1; Savings Bank v. Byington, 135 Iowa, 151.)

      Albert Ottinger, Attorney-General {KennethM. Spence and Robert S. Johnstone of counsel), for respondent.
    Since there was pending before the extraordinary term business to be disposed of and no affirmative action had been taken by the presiding justice ending the term, the extraordinary term continued. (Saranac Land & Timber Co. v. Roberts, 227 N. Y. 188; People ex rel. Weick v. Warden of City Prison, 188 N. Y. 549; 117 App. Div. 154; Union Pac. Ry. Co. v. Hand, 7 Kan. 380; Jones v. McClaughry, 169 Iowa, 281; Common v. Bannon, 97 Mass. 214; Hume v. Bowie, 148 U. S. 245; Ex parte Harrell, 57 Ore. 95; State ex rel. v. McBain, 102 Wis. 431.) The taking of a recess by the court does not end or terminate the term. (People ex rel. Whitman v. Woodward, 150 App. Div. 180.)
   Crane, J.

Section 153 of the Judiciary Law (Cons. Laws, ch. 30) reads as follows:

“ The governor may, when, in his opinion the public interest so requires, appoint one or more extraordinary special or trial terms of the supreme court. He must designate the time and place of holding the same, and name the justice who shall hold or preside at such term, and he must give notice of the appointment in such manner as, in his judgment, the public interest requires.”

Pursuant to this provision the Governor on March 6, 1924, appointed an extraordinary Special and Trial Term of the Supreme Court to be held at the courthouse in the village of Garden City, Nassau county, on the seventh day of April, 1924, at ten o’clock in the forenoon of that day, and to continue so long as may be necessary for the disposal of the business which may be brought before it, and he designated one of the justices of the Supreme Court of the second judicial district to hold said term and to draw a grand jury. Notice of the appointment he also ordered to be published in certain named newspapers.

The court was opened on the day named in the order. There was no uncertainty as to when the term commenced as this was fixed by the designation of the Governor in his order, but a question has arisen as to whether or not the term has ended. The only limitation in the order is that it shall continue so long as may be necessary for the disposal of the business which may be brought before it. The term must, like all other terms, come to an end some time. How can this be accomplished? Is there any recognized method of procedure? The justice presiding certainly could terminate it, but how? The minutes of the court kept by the clerk generally contain a record of the way the court is convened and closed. It is conceded that if these minutes contained a statement that the court had adjourned sine die, then the term would have ended on the date of entry. If the minutes showed that the court with no unfinished business pending before it had adjourned without fixing a day then the same result would have followed. (Saranac Land & Timber Co. v. Roberts, 227 N. Y. 188.)

What was done in this case? The term designated by the Governor’s order ’ commenced on April 7, 1924, and was presided over by the justice named in the order. A grand jury was summoned and found an indictment against William H. Reynolds, the mayor of the city of Long Beach, and John Gracey, the city treasurer. These defendants were tried and convicted on the 19th day of June, 1924. Thereafter an indictment was found against oné Will F. Phillips, who was tried and convicted at the extraordinary Trial Term on November 5, 1924. This was the last case tried at this term. On that day there appears the following entry in the clerk’s minutes:

“ November 5, 1924.

“ Phillips trial.

This term of court continued until further order of court.

“ THOMAS S. CHESHIRE,

Clerk,

DANIEL E. SEALEY,

Deputy.”

The only other entry is this:

“ December 26, 1924.

“ People v. Abraham Weinberg.

“ Bail fixed.

Recess

“ THOMAS S. CHESHIRE,

Clerk.”

Nothing further appears to have been done regarding this extraordinary term of court until October 19, 1925, when it is alleged that the justice designated in the Governor’s order was about to convene the court for the purpose of retrying William H. Reynolds whose conviction on appeal to the Appellate Division had been reversed.

The facts presented, therefore, are these: On November 5, 1924, the justice presiding at the extraordinary term directs that the term be continued until he orders otherwise. No definite day is' set; it is left entirely to his discretion; it may continue indefinitely for months or years. What is this but an adjournment or a continuance of the term without a day; for an indefinite time?

This direction means that the term is continued.” The remaining words until the further order of the court ” add nothing to it. The Deputy Attorney-General realizing the force of the word “ adjourned ” and that according to law a term of court which is adjourned ” without day generally ends the term, insists that there is a distinction between continued ” and adjourned.” In the sense in which they are used in this connection they mean one and the same thing and have like effect. The Oxford Dictionary giving the meaning of continue ” used as a law term, says it signifies to adjourn, prorogue, put off,” and Bouvier’s Law Dictionary defines a continuance ” as an adjournment of a cause to another day or a subsequent time. When, therefore, this extraordinary term was continued ” without day; that is, indefinitely, it was adjourned without day and thus came to an end.

We do not mean to hold that the ending of a term of court is dependent entirely upon a form of words used by a clerk in making his entries. Circumstances and conditions may indicate that the entry was an error and that no such effect was intended or understood. But taking the entries in this case followed by a suspension of all business for months leaves no doubt about the correctness of the entry and that the term was intended to be continued or adjourned indefinitely or in the discretion of the trial justice, which is the same thing.

Outside of taking bail in the case of Abraham Weinberg nothing more was done at this term of court for a period of eleven months. How was the court to designate the adjourned day; what was to bring the term into being again? We do not find that the presiding justice has made any order or given any direction other than we may gather from the statement that the Attorney-General was issuing subpoenas for a certain day. As we read the record in this case it has been assumed that it was sufficient to notify the defendant to appear in court on some day when the trial justice would be present to open court. If a term may thus be continued for eleven months without any business being transacted before it, it may be continued for two or three years; in fact, there is no limit to the time. To state such a proposition is at once to reveal that there is something inherently wrong in it; such a thing cannot be. Such procedure is not the usual, ordinary and regular way in which courts move and legal business is disposed of. The days upon which the courts are to sit and terms to be held are a matter of public concern as to which the public should have some notice and especially litigants. This is fully accomplished when section 7 of the Judiciary Law is complied with and the courts are adjourned from day to day or to a specified future day stated in the minutes. This is the only way in which courts can properly and fairly be conducted.

The extraordinary term called by the Governor is nothing more or less than an additional term of court appointed for the time and place, to be held by the justice designated. It may be called to dispose of specified cases or as in this case to transact such business as may be brought before it. The term thus fixed and held is to be conducted in accordance with the rules of law governing all other terms of court with the exception of the designation of the judge. Like any other term of the Supreme Court held in Nassau county it could dispose of any business brought before it including civil cases and Special Term matters as well as criminal proceedings. As stated by this court in People ex rel. Saranac Land & Timber Co. v. Supreme Court (220 N. Y. 487, at p. 492), when created it became a term of the Supreme Court with the same jurisdiction that belongs to any other term.

In People v. Sullivan (115 N. Y. 185) it was held that there is inherent power in the Supreme Court to adjourn its proceedings from day to day as long as it is necessary to finish the business legitimately brought before it .unless by the terms of some statute its existence is sooner brought to a close. The power, however, is to be exercised by adjourning to some definite time if new business is to be taken up.

Section 7 of the Judiciary Law provides: Any term of a court of record may be adjourned from day to day, or to a specified future day, by an entry in the minutes. Any .judge of the court may so adjourn a term thereof, in the absence of a sufficient number of judges to hold the term.” This provision is applicable generally to all terms of court held as provided by law. The term to be appointed by a Governor is authorized by the Judiciary Law and I can see no reason why this section 7 should not apply to such a term as well as to the other terms of court. The justice may keep the term alive by adjourning from day to day or to a specified future day by an entry in the minutes, but I find nothing whatever in the law or in any of the cases which justifies him in adjourning his term without a day subject to his future order. In Saranac Land & Timber Co. v. Roberts (227 N. Y. 188) the extraordinary term was adjourned from time to time until July 28, 1917, on which day no formal action was taken either to adjourn the court sine die or otherwise. The question presented to this court was whether the term had come to an end on July 28, 1917, so as to prevent the justice presiding from deciding a motion theretofore submitted to him. The court and apparently the parties assumed that as to any new business the extraordinary Trial and Special Term ceased to exist in July of 1917, and we, therefore, said (at p. 193): “ It is necessary that the times and places of holding . courts be fixed in advance that jurors can be drawn therefor, and that notices can be given and the necessary steps taken to obtain jurisdiction of the parties in civil and criminal actions and proceedings.” Approaching the question presented the opinion further states: Our inquiry is, whether after a term has been duly appointed and convened, and a motion is made or a trial had therein, if the decision thereof is not rendered until such term has expired by express limitation or by failure to adjourn it formally, shall such term be deemed continued for the purpose of making and filing such decision.”

The practice governing the holding and adjournment of terms we referred to in these words: “ The terms of court in all or at least part of the state are appointed not only for a particular day but to continue for a fixed period of time or until adjourned without day.” We held in this Saramio case that although the term of court had ended for new and further business yet it could be deemed to be continued for the purpose of deciding cases and matters finally submitted to it during its regular and formal sittings.

We are not now dealing with business in the court undisposed of. This extraordinary term could continue in existence by proper adjournment until the business pending before it had been disposed of. Trials could be continued until finished. Motions heard before final adjournment of the term could under the rule in the Saranac case above referred to be disposed of after the adjournment of the term, but as to new business the court had no power to take up and dispose of such matters after it had adjourned without a day and for an indefinite time. It is said that there are indictments pending which have been found at this extraordinary term and by the- grand jury called for the extraordinary term and that these remain undisposed of. These indictments together with the indictments against Reynolds, still open.for trial, are pending in the Supreme Court, not any particular term thereof, and may be moved for trial at any term of the court. It is incorrect to say that they constitute unfinished business pending before the extraordinary term. If the court had adjourned sine die, and thus ended the term, what would have become of these indictments? They would not have fallen; the adjournment would not have resulted in a dismissal of the charges; they would still be pending. Where would they be pending? In the Supreme Court of which the extraordinary term was only an extra part for the purpose of disposing of any business including these indictments if they were moved for trial in that part. There is no mere magic in the words “ sine die;” the same result follows when the court adjourns or continues without day subject to the call of the judge. The term ends. The occasion referred to in the Governor’s order ceased to exist when the court remained inactive for nearly a year. The business brought before it had been disposed of, so far as that term of court was concerned.

We must look beyond this particular case and declare the law as applicable to all terms of court; they must have a definite time of beginning and as far as possible some definite time for ending; terms cannot continue indefinitely without business, to be revived in the discretion of a judge. This seems reasonable and so far as we can see the only way in which the trial of cases and proceedings in court can be properly and orderly conducted. Other courts have taken this same view of the law. (State v. Ross, 118 Mo. 23, 46; Myers v. East Bench Irr. Co., 32 Utah, 215; Irwin v. Irwin, 2 Okla. 180; Stovell v. Emerson, 20 Mo. App. 322; Wright v. Wallbaum, 39 Ill. 554; 1 Encycl. Pleading & Practice, 243.)

With the remarks in the record and the briefs regarding the attitude of the trial justice, we have nothing whatever to do and have disregarded them.

This being a final order it was unnecessary to certify a question. (Matter of Neglia v. Zimmerman, 237 N. Y. 131.) The order of the Appellate Division should be reversed and the application granted, without costs.

Hiscock, Ch. J.

(concurring). I concur in the conclusion reached by Judge Crane and for the reasons stated by him in his opinion. I think, however, that there is another aspect of the facts upon which may be rested our decision that the extraordinary term of the Supreme Court had been terminated at the time when the justice appointed to hold the term proposed to reconvene it.

After the adjournment of the court on November 5th, 1924, and on December 26th, 1924, the court apparently was reconvened for the purpose of fixing bail and when that proceeding was concluded according to the minutes of the court a recess ” was taken. This was the last step taken for the purpose of adjourning or continuing said term of court. It supersedes whatever may have been done for that purpose before and it is decisive of the question whether the term had been kept alive so that it might be reconvened as was proposed. In my opinion it was insufficient to keep the court alive, even if- we should assume that the first action of the justice to the effect that the term of court “ be continued until the further order of the court ” would have been sufficient, if unmodified, to accomplish that result. As I say, that first action was superseded by the declaration of a recess and the meaning and effect of a recess, therefore, become controlling.

In my judgment a, retrial of the Reynolds case after the Appellate Division had reversed the judgment of-conviction and ordered a' new trial, was new business and, therefore, we cannot approach the decision of the question whether the term of court had been kept alive for such new trial with that liberality of interpretation which we have held should be employed in the consideration of the question whether a term of court has been kept alive for the purpose of completing unfinished business. (Saranac Land & Timber Co. v. Roberts, 227 N. Y. 188.)

Neither are we concerned with the question of the exact length of time for which a court might be kept in existence by the declaration of a recess. The decision of that question might very well be affected by the facts of a given case. The only question with which we are concerned is the one whether when a term of court has merely taken a recess and nothing more has been done to perpetuate its existence, it can be regarded as having been kept alive for a period of nine months so that it can then be reconvened for the purpose of transacting new business. It seems to me that to thus hold would v oíate the technical definition of a recess and rules of common sense and ordinary practice in the procedure of courts.

A recess of a term of court decisively and inevitably indicates a temporary suspension of its proceedings. It denotes that its proceedings have been suspended for a short time for some purpose and everybody having business with it naturally understands that after such brief suspension it will resume its proceedings. But so far as I am aware it has never been the practice or the understanding that a court by taking a recess could, be kept alive for months to the end of being then unexpectedly reconvened for the purpose of taking hold of new business. Such cessation of the proceedings of a court is not a brief and temporary suspension of its activities keeping it alive for further business; it is an abandonment of the term of court which results in its death and termination.

For this reason also I concur in the decision.

Orders reversed and application granted, without costs.

Cardozo, Pound, McLaughlin, Andrews and Lehman, JJ., concur with Crane, J; His cock, Ch. J., concurs in opinion, in which also McLaughlin, Crane and Andrews, JJ., concur.

Orders reversed, etc.