author: Barrett, J.

text:
    The People, Resp’ts, v. William B. Hayes, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    1. Perjury—Materiality of affidavit—Consideration of promissory note.
    A note given to a woman with whom defendant had had illicit relations, and who had a child by him, either to induce her to surrender the child, or to settle a threatened action for breach of promise, and as to which no-intimation is made that it was given for the purpose of continuing such relations, cannot be claimed to be given for an immoral purpose, and, therefore, unenforcible, and defendant’s affidavit denying the giving thereof cannot be held to relate to an immaterial fact.
    2. Same—Affidavit—Proof of making.
    The fact that defendant swore to the affidavit may be proved by the testimony of the notary ; it is only the falsity of the statement sworn to which must be substantiated by the oath of two witnesses, or of one witness supported by corroborating circumstances.
    3. Same—Jurisdiction—Pendency of civil action.
    The pendency of the civil action in which the alleged perjury was committed does not deprive the court of jurisdiction to try the indictment; but the question of postponement rests in the discretion of the court. If the defendant wishes to await, the termination of the civil action he should make proper application therefor before entering upon the trial.
    4. Same—Ex post facto law—Laws 1892, chap. 662.
    Chapter 662, Laws 1892, amending §106 of the Penal Code, is not ear post facto as to perjury committed prior to its enactment, as it prescribes-no other or different penalty, but reduces its extent.
    5. Criminal law—Direction' to prosecute witness.
    A witness for defendant admitted on cross-examination that he had made a false certificate as a notary public, and at the close of his testimony the court directed his committal for such offense. Held, that such direction did not improperly prejudice the defendant and afforded no ground for a new trial.
    6. Forgery—False certificate of notary.
    The statute does not require an intent to defraud to constitute the crime of forgery .in making a false certificate with regard to an acknowledgment ; all that is required is that the officer should wilfully certify falsely.
    7. Evidence—Privileged communications—Husband and wife.
    Letters written by defendant’s wife to him, and by him given to a third person, are admissible against him. He is precluded by his own act from claiming that they are privileged as confidential communications between husband and wife.
    Appeal from judgment of the court of general sessions, entered upon the .verdict of a jury convicting defendant of the crime of perjury.

      Geo. M. Curtis, for app’lt; De Lancey Nicoll, dist. atty. (Henry B. B. Stapler, asst. dist. atty., of counsel), for resp’ts.
   Barrett, J.

The indictment charged the defendant with perjury in the making of a false affidavit used upon a motion to open a default in a civil action. The action in which the default occurred was in the supreme court, in Monroe county. This action was founded upon a promissory note for $2,000, made by the defendant, and payable to the order of the plaintiff therein, Annie M. Keating. In the affidavit charged to be false, the defendant stated that he never gave Annie M. Keating a note, or ever had occasion to give her one; that he had never seen the note for $2,000, upon which her action was based, and knew nothing whatever about it; that at the time when the note was dated, to wit, October 27, 1887, he was in Florida, the note purporting to have been made in Hew York; and that he went to Florida the 1st of September, 1887, and did not return until the 1st of May, 1888. Upon this affidavit a. motion was made to open the default, which motion was granted, and the defendant was permitted to answer. Evidence was given upon the trial tending to show that the affidavit, in the particulars specified in the indictment, was false; that in truth the defendant had given the note in question to Annie M. Keating,; that he so-gave it to her in Hew York upon the 27th of October, 1887; and that he was in Hew York, and not in Florida, upon that date. The defendant offered evidence tending to sustain his affidavit, but this evidence was weak, contradictory, and hopelessly improbable. Upon full consideration of all the evidence, we think the falsity of the affidavit was overwhelmingly established, and the verdict, of the jury thoroughly justified.

Humerous questions of law are presented by the appellant, but they are, for the most part, frivolous. We do not propose to notice in detail the enormous mass of pointless exceptions which were taken to rulings upon evidence during this lengthy trial. The exceptions were, in the main, without merit, and in no instance was the defendant prejudiced by the rulings of the learned court. There are some questions, however, which should be considered;

1. It is claimed that perjury could not be predicated of the defendant’s denial that he ever gave Miss Keating the note in question, for the reason that the fact was immaterial, in that the note was void, as founded upon an immoral consideration. We need not consider the question of materiality, in view of the entire absence of evidence to sustain the premise. There was not a particle of evidence that the note was given to secure the continuance of illicit intercourse. Miss Keating testified that in the year 1884 the defendant asked her to marry him, and gave her an engagement ring. She had no knowledge at this time that he was a married man. Thereafter, and while she was still in ignorance of his marital status, illicit relations commenced between them, which continued for some years, and resulted in the birth of a boy child on the 11th of April, 1887. Before the birth of this child Mrs. Hayes learned of her husband’s infidelity, and she had in fact become acquainted with the whole situation. Being herself childless, she desired to obtain possession of the boy. She says that the consideration of the note was Miss Keating’s promise to let her have the child, and that upon the latter’s refusal the note was-returned. Miss Keating, on the other hand, says that the consideration was the settlement of a suit which she had threatened to bring against the defendant. Heither of these witnesses intimates that there was an immoral consideration. The effect of Mrs. Hayes’ testimony is, in substance, that the note was not really delivered. That of Miss Keating suggests a release of her right of action for breach of promise. The appellant contends that Miss Keating’s threat to consult a lawyer and commence a suit against him was an act of blackmail, but this contention ignores, first, the original promise of marriage; and, second, the fact that she was the mother of his child. The woman was not an adventuress, seeking by falsehood and baseless threats to extort money from an innocent man. It was proper, under the circumstances, that he should provide for her. The law condemns contracts in furtherance of immorality, but not those made in expiation of wrongdoing. This general principle is well settled.

Thus it was held in Bunn v. Winthrop, 1 Johns. Ch., 329, that past seduction is a valid consideration for a covenant for pecuniary reparation and support of the offspring. In Todd v. Weber, 95 N. Y., 190, it was held that there was nothing illegal in an undertaking by a putative father to pay a sum of money to another in consideration of the support of his illegitimate child, though that other was the mother of the child. The same rule was laid down in Jennings v. Brown, 9 Mees. & W., 496. In Jackson v. Finney, 33 Ga., 513, a note given by the father of an illegitimate child, for its support, was held to be good, as being a meritorious consideration. So, also, as to a note given by a seducer to the parent of the girl seduced. Cutter v. Collins, 12 Cush., 233; Harter v. Johnson, 16 Ind., 271; Merritt v. Flemming, 42 Ala., 234. In England, agreements in consideration of past cohabitation are enforced, Gray v. Mathias, 5 Ves., 286; Gibson v. Dickie, 3 M. & S., 463, though the cases are not uniform as to the necessity for a seal. Beaumont v. Reeve, 8 Q. B., 483; Benyon v. Nettlefold, 3 Macn. & G., 94, 109; Knye v. Moore, 1 Sim. & S., 64; Walker v. Perkins, 3 Burr., 1568; Smyth v. Griffin, 13 Sim., 245; Simpson v. Howdon, 3 Mylne & C., 97, 102; Ayerst v. Jenkins, L. R., 16 Eq., 275, 283; Batty v. Chester, 5 Beav., 103, 109. Even where the illicit connection is resumed, and is never broken off, the court will not presume from that fact alone that the real consideration was future as well as past, nor therefore treat the deed as invalid. Gray v. Mathias, supra ; Hall v. Palmer, 3 Hare, 532; Vallance v. Blagden, L. R., 26 Ch. Div., 353. The ground upon which the declaration was held to be good in Gibson v. Dickie, supra, was that the agreement “was a voluntary compensation, by way of maintenance, made to the plaintiff for the injury done her by their past illicit connection, and that, so far from it being an inducement for her to continue the cohabitation, it was rather an inducement to separate.” The point that the note, if given, was not enforceable, is, therefore, not well taken.

2. The next contention is that the testimony of the notary, Townsend, was insufficient to prove that the defendant actually swore to the affidavit before him. It is true that this witness made contradictory statements upon the subject, but these contradictions were satisfactorily explained. A careful perusal of his entire testimony convinces us that he was truthful, and that the defendant did, in fact, personally appear before him and swear to the affidavit. This, at all events, was a proper question for the jury, and it was fairly presented to them by the learned court. JSTor was it necessary that the notary should be corroborated. The testimony of a single witness is sufficient to prove that the defendant swore as alleged in the indictment. See cases cited in 13 Amer. & Eng. Enc. Law, 354, note 1. It is outy the falsity of the statement sworn to which must be substantiated by the oath of two witnesses, or of one witness supported by corroborating and independent circumstances equivalent in weight to the testimony of a single witness. Id., 333.

3. There was ample corroboration of Miss Keating within the rule just stated. She was corroborated not only by the documents generally, but by a special feature of the note itself. The body of this note was concededly in the handwriting of Mrs. Hayes, but she omitted to write the word “ date ” in the appropriate place. Miss Keating testified that this word was written by the defendant himself on the occasion when the note was delivered to her. In this she was corroborated by the testimony -of two experts in handwriting, who testified that in their opinion, based upon considerations which were detailed, the word “ date ” was written by the same person who wrote the signature to the instrument; and the signature, “W. B. Hayes," was admittedly in the handwriting of the defendant. Three other witnesses also corroborated Miss Keating as to the defendant’s presence in the city of Hew York at or about the time when she says he gave her the note. One, a physician who attended him for an injury to his foot; another, a person who resided in the same house with him, and who identified him both personally and with regard to the injured foot; the third, a servant in the defendant’s family. This testimony not only corroborated Miss Keating upon the affirmative case, but negatived the w'eak and unsatisfactory testimony with which the defendant attempted to establish an alibi.

4. The point is made that the court of general sessions had no jurisdiction to try the indictment, for the reason that the civil action is still pending and undetermined. There is nothing in this point. The court certainly had jurisdiction to try the indictment, even if it would have been better to defer such trial until after the conclusion of the civil action. It was not a question of jurisdiction, but of propriety. Moreover, this question was not properly raised below. The defendant did not ask to defer the trial. He proceeded without objection, and without even informing the court of the continued pendency of the civil action. And, further, he neither moved to dismiss the indictment upon this ground, nor for an acquittal when the prosecution rested, nor in arrest of judgment, nor for a new trial. The only reference we find to this point in the record is its occasional presentation, seemingly in a most inconsequential way, as an objection to the admission of competent evidence, and a request, at the conclusion of the learned judge’s charge, that he further instruct the jury that they must acquit because, under the law, “ the court, in such a case, has no jurisdiction." The practice in England is to postpone the trial for perjury until the cause out of which it arises is determined. Whart. Crim. Law, 762; Rex v. Simmons, 8 Car. & P., 50. In Pennsylvania the rule seems to be that a prosecution, for perjury alleged to have been committed in an affidavit of defense will not be entertained until after final j udgment in the case in which the affidavit is made. Com. v. Dickinson, 3 Pa. L. J. 163. In the case cited, however, the affidavit of defense was in the nature of a direct answer in the action. It was not, as here, an affidavit used collaterally upon a motion in the cause, a motion, too, which has been finally disposed of. There, too, the question was brought directly before the court on an application, upon habeas corpus, to discharge the defendant. All this was before indictment, and while the defendadt was subject only to an alderman's preliminary warrant. And although the defendant was released from the custody of his bail, and discharged, there is not a suggestion that, an indictment, if the prosecution had proceeded thus far, would have been quashed. On the contrary the court referred to the English rule with approval, and declared that the practice in Pennsylvania was not to suffer an indictment for perjury to be tried until the proceeding in which it was alleged the offense had been committed had been determined. We think the English ruléis a reasonable^bne, and that the question of postponement should be left to the sound discretion of the court. The indictment was-here good. It could not have been successfully demurred to. And the question of the defendant's guilt or innocence, upon the trial, to which he submitted without objection, was not affected by the incident of the pendency of the civil action. That is a complete-answer to the only point which, on this head, is now presented, or which was presented below. If the defendant desired to await, the termination of the civil action, he should have made a proper application to that effect before entering upon the trial of the indictment.

5. The perjury was committed prior to the passage of chapter-662, of the Laws of 1892, amending § 106 of the Penal Code. This amendment changed the penalty previously prescribed for this offense by abolishing the minimum limitation. Prior to the amendfnent the penalty read as follows : “ By imprisonment for not less than two nor more than ten years.” Now it reads : “By imprisonment for a term not exceeding ten )rears." It is contended that this amendment, as applicable to perjury committed prior to its enactment, was ex post facto. An ex post facto law was defined by Chief Justice Marshall to be one which rendered an act punishable in a manner in which it was not punishable when it was committed. Fletcher v. Peck, 6 Cranch, 87-133. If, however, the punishment be increased, though the manner of punishment be the same, the law is ex post facto. Shepherd v. People, 25 N. Y, 415. A law which retains the manner of punishment,, but simply reduces its extent, is not ex post facto as to offense» committed before its passage. Com. v. Wyman, 12 Cush., 237 ; State v. Arlin, 39 N. H., 179, 180. This doctrine has been repeatedly asserted in this state. In Shepherd v. People, supra,. Sutherland, J., said that: A law, the effect of which is simply to reduce or diminish the punishment with which an act was punishable when committed, cannot be an ex post facto law, because it inflicts no new or additional punishment.”

So in Hartung v. People, 22 N. Y., 105, Denio, J., observed that, in his opinion : “It would be perfectly competent for the legislature, by a general law, to remit any separable portion of the prescribed penalty. For instance, if the punishment were fine and imprisonment, a law which should dispense with either the fine or the imprisonment might, I think, be lawfully applied to existing offenses; and so, in my opinion, the term of imprisonment might be reduced, or the number of stripes diminished, in cases punishable in that manner. Anything which, if applied to an individual sentence, would fairly fall within the idea of a remission of a part of the sentence, would not be liable to objection.”

And again, on a subsequent appeal in the same case, the same learned judge stated that the act previously under consideration, “ Was considered to be ex post facto because it attempted to change the punishment which the law attached to the offense of the prisoner when it was committed, not by omitting some divisible portion of it, but by altering its kind and character.”

This doctrine applies with equal force to an act which simply vests in the courts authority to impose a less penalty than even the existing minimum. What was said in Dolan v. Thomas, 12 Allen, 421, is entirely applicable to the act under consideration :

“ The effect of the statute was merely to vest in the courts a discretion, by the exercise of which they were authorized to mitigate the sentence to which an offender was liable by dispensing with a portion of the prescribed punishment. The extent of the repeal of previous statutes is then only this: That in a certain class of cases, instead of a fixed and inflexible rule of punishment, which could not be modified or varied, the court has authority to substitute a milder sentence. Clearly, such a statute is not a violation of any right or privilege of any accused party, nor does it render the class of offenses to which it relates, and which were committed prior to its enactment, dispunishabla It does tiot inflict any greater punishment than was before prescribed. It is not therefore ex post facto. It only authorizes a mitigation of a penalty. It is therefore an act of clemency, which violates no right, but grants a privilege to a convicted party.”

6. A witness for the defense, Hoah, admitted upon cross-examination that he made a false certificate as a notary public, to the effect that Mrs. Hayes had appeared before him and acknowledged the execution of an instrument purporting to have been executed by her. As matter of fact, Mrs. Hayes had not appeared before him, nor acknowledged the execution of the instrument. At the close of his testimony the learned judge directed his committal for the offense thus admitted. The appellant claims that by this action of the court he was prejudiced before the jury. It was not the action of the court which affected the credibility of the witness, but his own confession, in the presence of the jury, that he had committed a peculiarly dangerous crime. If such conduct as the witness acknowledged were to pass without instant condemnation, it would have a most pernicious effect. Titles to real estate, the genuineness of conveyances, the security of mortgages, all depend upon the strict fidelity with which public officers intrusted by law with the duty of taking acknowledgments perform their functions. No judge, with a proper sense of what he owes to the-public, should sit supinely by, and permit such a confession to be made as though it were a matter of no moment, or of every-day occurrence. There was, under the circumstances, but one proper course to pursue, and that was to indicate the exceptionable character of the offense by directing its immediate prosecution. That was better than mere words of rebuke; still better than to permit the-guilty officer to leave the court room unchecked and unrebuked. The latter course would have been unworthy of the occasion, and would have evinced reprehensible indifference to a matter of great public concern. It is contended that what Noah confessed did not amount to a crime, because he had no intent to defraud. But the statute does not require an intent to defraud to constitute the crime of forgery in making a false certificate with regard to an acknowledgment. Ordinarily, this intent is required to constitute forgery, 'but, in the case of officer’s authorized to take the proof of acknowledgment of an instrument which by law may be recorded, all that is required is that he should wilfully certify falsely. Penal Code, §510. The committal of this witness was whatthe jury must have expected as the fitting sequence to his confession of crime, and it could have had no other effect upon them than a wholesome one. The injury to the defendant, if any, was in the-fact confessed, not in the treatment which the confession necessitated.

7. The order opening the default was dated at a special term held on the 29th day of April, 1889. The year “ 1889 ” was a clerical error. It should have read “ 1891.” The point is made that the entire record should have been stricken out because of this error. But, clearly, the order in question was that which was-actually made on the decision of the motion. It was brought, from the files with the affidavit and notice of motion. The real fact is apparent. But the order was not essential to the prosecution. The affidavit which was used on the motion was produced from the files, and that was the essential thing. The perjury would have been the same if the decision had been the other way, or if there had been no decision. The affidavit was used to affect the decision, and that was sufficient.

8. Certain letters written by Mrs. Hayes to the defendant were offered in evidence by the prosecution on the cross-examination of Mrs. Hayes. They were objected to by the defendant on the ground that they were privileged communications. These letters were not produced by Mrs. Hayes as evidence against her husband. They were given by the defendant to bis mistress before the trial, and were placed by her in the hands of the district attorney. They thus came into the possession of a third party by the defendant’s shameless disregard of marital confidence. He opened the door, and exposed the expression of this confidence. He cannot now close the door. It is said by Wharton, Orim. Ev., § 898,. that the privilege “ is personal to the parties. A third person who happened to overhear a confidential conversation between husband and wife may be examined as to such conversation. A letter, also, written confidentially by husband to wife is admissible against the husband when brought into court by a third party.” See, also, State v. Hoyt, 47 Conn., 518, and State v. Buffington, 20 Kan., 599.

We have thus endeavored to cover the principal points made by the appellant in the elaborate brief of 115 pages which was submitted to us. There are in this brief many other points, but they are trivial, and we do not deem them worthy of special consideration. The charge of the learned judge was eminently fair, and the exceptions thereto are without merit. Upon the whole, we think the defendant had a fair trial, that he was justly convicted, and that no errors were committed to his prejudice.

The judgment should, therefore, be affirmed.

Yah Brunt, P. J., and Follett, J. concur.


source: Caselaw Access Project

author: Pratt, J.

license: Public Domain

text:
    Josephine Whitlatch, Appl’t, v. The Fidelity & Casualty Co., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    1. Insurance (Accident)—Suicide—Burden of proof.
    In an action upon a policy of accident insurance where the answer alleges as a defense that the deceased intentionally inflicted the injuries, the burden of proof to establish that fact is upon the defendant, and if the proof fails to show whether or not the injuries were intentional the defense is not made out, and it is error to refuse to so charge.
    2. Same—Charge.
    It is also error to charge that if the injuries resulting in death were caused by intoxication a recovery could not be had, where no such defense was pleaded nor any proof given upon the subject.
    Appeal from judgment in favor of plaintiff, entered upon verdict for $100 and interest.
    Action brought upon a policy of accident insurance upon the life of plaintiff’s husband, James W. Whitlatch, who was found dead from a pistol shot wound in the top of his head, in his bed in a hotel, with a revolver close to his left hand, but with no marks of powder on his head. The answer denied the allegations of the complaint except that defendant was a corporation, and set up as a defense that the injuries were intentionally inflicted by the deceased, and, therefore, under the policy defendant was liable only to the extent of $100.
    The court charged that “ While it is the presumption that from the death alone you are not to assume that it was suicidal, and that evidence must be adduced to show that the party did take his life, still the burden of proof is on the plaintiff to show by a preponderance of evidence that it was done by accident, that is, without the intention to take the life.”
    Having been requested to charge that the burden was on defendant to establish that the injury from which the insured died was voluntary or intentional on his part, the court, at the close of the charge, remarked: “ I think I have covered everything ' except the question of the burden of proof as to suicide. I do not intend to change it from the way-1 left it. It seems to me to be the same as in a case of negligence, where facts might raise a presumption of negligence, and it still leaves, upon the whole case, the burden upon the plaintiff.”
    Plaintiff’s counsel: “ Do you mean to decline to charge that the burden of proving the intent to commit suicide is on the defendant ?”
    The Court: “ I decline to charge it other than charged; it is probably more a question for the school-men than a practical matter. As matter of abstract law, I would say it seems to be laid down that the presumption is against suicide. It must be shown affirmatively either by direct evidence or by facts and circumstances tending to show that the party had a suicidal intent, and I assume if the evidence should come to a point as to leave it exactly balanced whether it was or not, then the burden of proof would be on the plaintiff to satisfy you that it was an accident and within the terms of the policy.”

      Thomas Darlington (John L. Hill, of counsel), for app’lt; Charles C. Nadal (Thomas S. Moore, of counsel), for resp’t.
   Pratt, J.

The appeal brings up the question whether the verdict is so against the weight of evidence that it should be set aside, and also whether there were errors committed in the charge to the jury requiring a reversal.

The deceased was found dead, with a discharged pistol by his side, and the - defense may fairly claim it to be established that death was caused by the ball discharged from that pistol.

But we do not succeed in finding proof that deceased voluntarily discharged the pistol, much less that he did so with intent to take his life. While the position of the wound does not preclude the possibility of the weapon having been held in the hand of deceased, it at least renders it improbable. And the letters written that evening do not disclose any expectation of death, but the contrary. Mr. Whitlatch is shown to have been singularly free from the weaknesses that lead to suicide.

But we do not need to decide the question whether the verdict should be set aside as contrary to the weight of evidence, for the reason that errors were committed in the charge that require a new trial.

The court properly refused a non-suit, thereby ruling that plaintiff had made a prima facie case.

The only affirmative defense open to defendants under the pleadings is found in the averment that deceased intentionally inflicted the injuries. Being an affirmative defense, unless proved, plaintiff was entitled to recover.

The burden of proof to establish intentional injury rested upon the defendant. If the proof failed to show whether or not the injuries were intentional, the defense was not made out Plaintiff was not required to prove a negative. Travelers' Ins. Co. v. McConkey, 127 U. S., 661.

The cases of negligence referred tó are not in point, for in this state it is held that freedom of plaintiff from negligence is the foundation of his case and must be affirmatively proved.

Were it the law that plaintiff must allege and prove that death did not result from suicide, a demurrer might have been successfully interposed, as no such allegation is found in the complaint.

The court declined to charge in accordance with these views, and the exception thereto must be sustained.

The court also charged that if the injury resulting in death was caused by intoxication the plaintiff could not recover. No such defense was pleaded, nor was any proof interposed which warranted the charge. For these errors a new trial should be had, with costs to plaintiff to abide the event.

Barnard, P. J., and Dykman, J., concur.


author: Barnard, P. J. Pratt, J.

text:
    Franklin P. Roberge, Resp’t, v. Maria N. Winne et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Specific performance—Statute of frauds—Agreement to substitute MORTGAGE.
    As part payment for certain land defendant was to assign a second mortgage on real property, but, it being found that it was worth nothing, she agreed to substitute a first mortgage on lands belonging to her; which she afterwards refused to do. Held, that there was a valid consideration for the agreement; that the statute of frauds did not apply, and that specific performance was properly decreed.
    Appeal from judgment in favor of plaintiff, in an action to compel specific performance of an alleged parol agreement.

      Edmund Luis Mooney and Andrew J. Shipman, for app’lts; Frank H. Gray, for resp’t.
   Barnard, P. J.

The plaintiff conveyed to the defendant Winne certain real estate in New Jersey. It was part of the contract for the payment of the consideration that Winne should assign a second mortgage of $3,500 on real property on Thirty-ninth street, New York, the first mortgage being $21,000. It was found that there was a second mortgage of $5,000, and that the $3,500 mortgage was worth nothing. The defendant Winne agreed to substitute a first mortgage on her lands in Westchester county for $3,500, and this second mortgage was to be released. The defendant now refuses to comply. The statute of frauds does not cover the case. Mrs. Winne has received the consideration for her promise. If the contract was an executory one, no action would lie upon it, but it has been performed by one party, and it would be inequitable to refuse a specific performance when the vendee has transferred the property in question without consideration and fraudulently to evade lier promise, and is worth nothing beside this land. Beardsley v. Duntley, 69 N. Y., 577; Newman v. Nellis, 97 id., 285; Miller v. Ball, 64 id., 286.

The judgment should be affirmed, with costs.

Pratt, J.

The justice of the judgment below cannot be questioned. We need only examine whether any technical objections require our interference.

Appellants insist that, by filing a bill in equity in New Jersey for rescission, plaintiff is precluded from maintaining an action in affirmance of the contract.

A sufficient answer is that no such defense is pleaded.

It is said that no consideration existed for the agreement to give the mortgage decreed to be executed. A full consideration was paid in advance for the prior mortgage.

When, upon the failure of that mortgage, the parties agreed upon a substitution, no further consideration than their mutual promises was necessary. The consideration of the first mortgage attached and sustains the last.

Nor is there any merit in the objection that, to enforce the agreement to substitute a valid mortgage for the worthless one, plaintiff must surrender the store which was part of the original consideration.

As to the objection that the decree provides for a mortgage to run a year while the pi’oof is silent as to the time the new mortgage should run, the law implied that the mortgage should run for a reasonable time. We think one year is such a length of time, and that there is no variance.

Judgment affirmed, with costs.

Dykman, J., not sitting.


author: Dykman, J.

text:
    In the Matter of the Application of Anna Elizabeth Hecht for the Appointment of a Successor Trustee under the Will of Henry Schneider.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    1. Trustee—Testamentary.
    Where a will bequeaths the income of a specified fund to a certain person, to be paid semi-annually by the executor during the life of such person, there is an active trust annexed to the office of executor, and it cannot be claimed that he is not a trustee.
    3. Same—Appointment oe successor.
    Where it appears that a deceased executor was engaged in the execution of a trust which remains unexecuted, the appointment of a successor becomes necessary, and the surrogate is authorized by § 3818 of the Code to make such appointment.
    Appeal from decree of the surrogate of Kings county, appointing a successor trustee under the will of Henry Schneider, deCGasod.

      Charles Reinhardt and Otto F. Struse, for app’lts; Hurd & Grim, for resp’t.
   Dykman, J.

This is an appeal by Elizabeth Miller, individually and as administratrix with the will annexed of Henry. Schneider, and also by the executor of Frederick Miller, deceased, from a decree of the surrogate of the county of Kings, dated February 21, 1893, by which the surrogate appointed the Nassau Trust Company of the city of Brooklyn a successor trustee under the last will and testament of Henry Schneider, deceased, and directed the executors of the last will and testament of Frederick Miller, deceased, to account to the trust company.

Henry Schneider died in or about the year 1874, leaving a last will and testament, proved in that year, which contains the following, among other provisions:

First. After all my lawful debts are paid and discharged, I give and bequeath and devise as follows: To my brother Daniel Schneider, residing at the time in Maxfield, Iowa, the interest of the sum of $10,000, at the rate of six per cent per annum, and to be paid semi-annually by the below named executor during his natural life.
Second. In case of the death of my above-named brother Daniel Schneider, the said amount to be divided as follows, viz. : To my brother Jacob Schneider $2,500 ; to my sister Anna Elizabeth, widow of Henry Hecht, $2,500, and also to my sister Elizabeth, wife of Frederick Miller, $5,000.
Third. To my above-named brother Jacob Schneider, residing at the time in the city of New York, $5,000.
Fourth. To my aforesaid sister Anna Elizabeth, residing at the time in the city of Brooklyn, widow of Henry Hecht, the interest from the sum of $10,000 at the rate of six per cent per annum, to be paid semi-annually by the below named executor during her natural life.
Fifth. In case of the death of my said sister, Ann Elizabeth, then the said amount of $10,000 to be divided among her children as follows, namely: To Frederick Tower $8,000; to Anna Maria Hecht $2,000.
Sixth. To my nephew, John Henry Schneider, residing at the time in the city of New York, son of Conrad Schneider, $300.
“Seventh. All the remainder of my estate, real or personal property, of whatever name or nature, of which I might be possessed at the time of my death, and which might accrue to me after my death, to my sister Elizabeth, wife of Frederick Miller, residing at the time in the city of Brooklyn, to have and to hold the same unto herself, her heirs and assigns forever.
“ Likewise I make, constitute and appoint my brother-in-law, Frederick Miller, to be executor of this, my last will and testament, hereby revoking all former wills by me made.”

Frederick Miller, the executor named in the will, qualified as such, but did nothing thereafter in the way of administering upon the estate of Henry Schneider, and died in the year 1891, without having filed an inventory or having rendered any account.

Whatever property of the estate of Henry Schneider came into his possession as executor he apparently mingled with his own funds.

The application to the surrogate was by a petition for the appointment of a successor trustee, the claim being made that as to the two sums of $10,000 each, mentioned in the will of Henry Schneider, the deceased executor was a trustee.

Elizabeth Miller, the sole residuary legatee of Henry Schneider, under the will above quoted, qualified as administratrix with the will annexed of Henry Schneider and letters to her as such administratrix were granted by the surrogate of the county of Kings on the 12th day of January, 1893, and she is now such administratrix. The petition to the surrogate was made by Annie E. Hecht, and stated among other things that from the probate of the will Frederick Miller paid to her the interest on the sum of $10,000, according to the directions of the will, ancl his executor has paid the same to her since his death. It further states that Frederick Miller, the executor of Henry Schneider, made one payment of the income of $10,000, part of the trust fund, to Daniel Schneider, and thereafter received Daniel Schneider into his house as a member of his family, and cared for and supported him in lieu of paying him the income.

That Daniel Schneider is now living, and is of the age of eighty-four years, and is feeble and infirm. That said Jacob Schneider is dead. That said Elizabeth Miller is living, and is of the age of seventy-two years, and is also infirm and feeble.

That the petitioner is of the age of seventy years, and that Frederick Tower is living and is of the age of forty-one years. That said Maria Hecht is living, and is of the age of thirty-nine years.

It further states that Frederick Miller was careless in the management of the estate of Henry Schneider and mingled the assets thereof with his own property, and that Elizabeth Miller, his widow and executrix, as the residuary legatee and devisee under the will of Henry Schneider, holds and has in her possession a large part of the assets of the estate which she claims as her property by virtue of the residuary clause of said will, and as executrix of the will of Frederick Miller; that she is advanced in years and is feeble in body and unfit to act as the trustee of the said sum of $20,000, and that Daniel Schneider by reason of his great age and feebleness is also unfit to act as such executor, and for those reasons asks for the appointment of a new trustee.

The insistance of the appellants is, that no trust was created by the will of Henry Schneider, and consequently Frederick Miller was never appointed a trustee, but the position is untenable. There were two distinct active trusts created by the will, and the execution of both was devolved upon the executor in express terms. The power or trust was annexed to the office of executor.

It may be well enough to say that no trust was devolved upon the executor separate upon his duties as such, and that the execution of the trust was 'a part of his duties imposed upon him as executor.

Such distinction may be important upon a question of commissions, but it is not so here.

The executor had executed the trust, paid the interest to the beneficiaries, paid one of the beneficiaries from the time of his qualification as executor down to the time of his death, a period of about seventeen years. As, therefore, the trust was an express trust, and he was engaged in its execution, and it remained unexecuted, we think the case falls within the spirit and intention of § 2818 of the Code of Civil Procedure, which authorizes the surrogate to appoint a successor of a sole testamentary trustee who dies.

Chapter 185 of the Laws of 1882 also provides that upon the death of a surviving trustee of an express trust the trust estate shall not descend to his next of kin or personal representatives, but the trust shall vest in the supreme court.

Under that statute, there was no one to execute the trusts in the will of Henry Schneider, and the appointment of a new trustee was necessary. It was necessary only to inquire whether the deceased executor was engaged in the execution of a trust which remains unexecuted. When that fact appeared, the appointment of a successor became necessary. Matter of Waring, 99 N. Y., 115.

The accounting is not only proper, but in view of the facts disclosed it is necessary.

The decree should be affirmed, with costs to be paid by the appellants personally.

Barnard, P. J., and Pratt, J., concur.


text:
    The People ex rel. Roswell W. Keene, App’lt, v. The Board of Supervisors of Queens County, Impl’d, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    1. Highways&emdash;Beidges between two counties.
    The statute enjoins no duty upon boards of supervisors in relation to bridges over streams which divide counties until a majority of the board in each of the counties adopts a resolution authorizing its construction.
    2. Same&emdash;Mandamus.
    The defendant board adopted a resolution for the construction of a bridge over Newtown creek, conditioned upon an equal appropriation by Kings county for such construction; but the board of supervisors of Kings county did not adopt a reciprocal resolution. Held, that such resolution was of no validity or force, and that a mandamus to compel the building of the bridge was properly refused.
    Appeal from- judgment and order sustaining a demurrer to the petition and alternative mandamus.

      Roswell W. Keene, app’lt in person; Francis H. Van Vechten, for resp’t.
   Dykman, J.

This is an appeal from a judgment and order sustaining a demurrer to the petition and alternative writ of mandamus.

The relator in the petition upon which the alternative writ of mandamus was granted states that Newtown Creek is a navigable stream of water forming the boundary lines of Kings and Queens bounties, and that the tide waters of the Atlantic Ocean flow in and out of the creek the whole length thereof, and a considerable commerce is carried on by vessels of various kinds.

_ He then alleges, as a matter of law, that the boards of supervisors of Kings and Queens counties have jointly sole and exclusive jurisdiction over the construction, repair and maintenance of bridges for highways crossing ¡Newtown creek.

He states that Maspeth avenue is a public highway, extending into the counties of Kings and Queens, and that a petition has been presented to ■ the respective boards of supervisors of those counties praying for the construction of the bridge over ¡Newtown creek and Maspeth avenue.

The enactment of the law by the state legislature authorizing the construction of such bridge, and the fact that the board of supervisors of Queens county has adopted a resolution for the construction of such bridge, conditioned upon the appropriation of an equal amount by Kings county for such construction, and that the board of supervisors of Kings county has not adopted a reciprocal resolution.

The rule of the common law of England which charged the duty of constructing and repairing bridges upon the counties has never been adopted in this state. Hill v. Supervisors, 12 N. Y., 52.

Consonant with the history and traditions of this country which have ever been in favor of the localization of power, our system of construction and reparation of both highways and bridges is based upon the primary responsibility of the towns in respect thereto.

Section 18 of article 3 of the constitution of this state prohibits the legislature from passing any local or private bill “ laying out, opening, altering, working or discontinuing roads or highways.” But the legislature may enact general laws conferring upon boards of supervisors powers of local legislation which are deemed expedient. Section 23 of article 3. Under this last provision of the constitution, the legislature may invest the boards of supervisors in this state with power to lay out and open highways. People ex rel. Morrill v. Supervisors, 112 N. Y., 588; 21 St Rep., 771.

Chapter 320 of the Laws of 1880, which amends subdivision 5 of § 1 of the Laws of 1875, which confers power upon the boards of supervisors to provide for the maintenance of bridges crossing streams which form the dividing line of counties, closes with this important proviso: “ But no such bridge shall be constructed, unless the same is authorized by a resolution adopted by a majority of the board of supervisors in each of such counties.”

Taken in its entire scope and meaning, this statute does not enjoin upon the boards of supervisors of the state the duty to construct bridges across streams which form the dividing line of counties as a positive obligation, but leaves the question open for the determination of such boards.

It therefore rests with such boards of supervisors to determine whether the construction of such a bridge shall be authorized, and such declaration involves the exercise of judgment and discretion.

The resolution, of the board of supervisors of Queens county was inoperative until the board of supervisors of Kings county appropriated an equal sum for the construction of the bridge, and as that never was done the resolution has no validity or force.

While there may be cases where a mandamus will issue to coerce the exercise of a discretionary power, 13th of Barbour 206, this is not such a case.

It is the office of a writ of mandamus in general to compel the performance of ministerial acts, and it will never be sent to compel an act by a public officer in respect to which he may exercise judgment and discretion. People ex rel. Hammond v. Leonard, 74 N. Y., 443.

While it may go to compel the exercise of their discretion by subordinate bodies and tribunals, it never requires a decision in any specified manner. People ex rel. Francis v. Common Council, 78 N. Y., 39.

It is to be noticed in this case that the relator does not seek to compel the boards of supervisors to act in the exercise of the power conferred by the statute. He requires them to build and maintain the bridge in a specified manner and such compulsion cannot, as we have seen, be exerted by a mandamus.

It comes to this, therefore, at last. The statute enjoins no duty upon the boards of supervisors in relation to the bridge until a majority of the board in each of the counties adopts a resolution authorizing its construction.

The view we have taken renders it unnecessary to determine the effect of the failure to obtain the approval of the secretary of war of the plan and location of the bridge.

Hewtown creek, at the place where the bridge is desired, is a navigable stream of tide water, and subject to the control of the United States in relation to its navigation.

By a law of congress the secretary of war is clothed with power and authority to approve the plans of bridges over navigable waters of the United States, and by the same law it is rendered unlawful to commence the construction of any such bridge which shall impair navigation, commerce or anchorage, until the location and plan of such bridge shall be approved by the secretary. A serious question will arise if the bridge is built without such approval, but as its decision here is unnecessary, we leave it undetermined.

The relator therefore failed to establish any right to the relief demanded and the issuance of the writ was properly refused at the special term, and the order and judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.


author: Barnard, P. J.

text:
    In the Matter of the Judicial Settlement of the Accounts of Mary C. Rogers, Adm'rx of Guy C. Goss, Deceased.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Executors and administrators—Assets.
    The decedent was entitled to a commission on certain transactions which was not due until after his death. Upon receipt of a letter acknowledging the indebtedness, he gave the same to his wife with directions to collect it and pay certain premium notes which he had given for insurance on his-life. After his death the wife collected the debt, allowing the notes out of the policy and kept the money so collected. Held, that as a power of attorney cannot last after death, in the absence of proof that the claim for the commissions was transferred to the wife, they should be considered assets and the administratrix required to account therefor.
    Appeal from decree rendered by the surrogate of Richmond county, adjudging that the administratrix is accountable for no money or property of her decedent.

      Thos. J. Ritch, Jr., for app’lt; Calvin D. Van Name (Sidney F. Rawson, of counsel), for resp’t.
   Barnard, P. J.

Letters of administration were issued to Mary C. Rogers, a daughter of Guy G. Goss, by the surrogate of Richmond county, on the 11th day of June, 1890. The petitioner, Benjamin Tuthill, had recovered a judgment against the deceased, Guy C. Goss, in his lifetime, which remains unpaid. He petitions as a creditor for a settlement of the accounts of the administratrix, and that he be paid his judgment and claim. The administratrix answered that there was no property. Upon the trial before the surrogate the controversy was confined to three items which the petitioner claimed should be held to be assets in the administratrix’ hands. The deceased was an agent for the Dorr Paint Company. He had a deposit as agent in the Seaboard Bank. He had a right to some $300 for his services out of this bank account. The expenses of the last sickness of deceased, and his funeral expenses, consumed this amount, and this fact is found by the surrogate.

The deceased had, in his lifetime, procured a vessel contract for the Mew England Ship Building Company of Bath, Maine. The payment for the commission on this contract was not due at the death of Goss. He had been unable to pay the premiums on three life insurance policies for the benefit of his wife, and gave his notes for the premiums due in the early part of the year 1890. A few weeks before he became sick he received a letter from the company acknowledging the indebtedness. He gave this letter to his wife with directions to collect the amount and with it to pay the premium notes then given. The wife did collect the $500 after his death, and allowed the notes out of the policy, and kept the $500. A power of attorney could not last after death, and it is not found that the letter was the subject of a gift inter vivos or causa mortis. If the power to collect after death existed, it must be because the title to the account in some way passed to the wife, and the collection after death can be supported by the title in the wife. As the case stands it is not clear. The proof is confined to the testimony of Mrs. Goss. As the testimony is returned, the item of $500 should be deemed assets, and the decree should be modified accordingly.

The third and remaining item is for a claim for premiums on life policies in excess of $500 in one year, under chapter 277, Laws of 1870. The deceased had procured three policies, each for $10,000. Two were made payable to his wife and one was payable to the personal representative of Gross. This last policy was assigned to the wife in May, 1885. This assignment is found to have been made in good faith and without fraud. The proof fails to show that $500 was paid for premiums in any one year out of the funds of the deceased. The wife had a separate estate and she contributed to the premiums yearly out of her separate estate and property. These payments were never returned to her and she never received any benefit from them except from the policies she received after her husband’s death. It seems probable that after the assignment in 1885 he paid nothing. He then became involved and gave up all his property to his creditors. No case is made in respect to this $10,000 assigned policy which should charge the administratrix with the amount of it. It was paid to the wife under a valid authority as between the widow and the company, and there is nothing in the case which would justify the administratrix in assailing the transfer.

The decree of the surrogate should, therefore, be affirmed except as to the $500, and as to that it should be modified by directing a new trial, so that proof may be taken whether the claim was transferred to the wife, and if there be no such proof given, then the administratrix should be directed to account for it as an asset. No costs to either party on this appeal.

Dykman and Pratt, JJ., concur.


text:
    James McNeil, Adm’r App’lt, v. The New York, Lake Erie & Western Railroad Co., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed, July 28, 1893.)

    1. Master and servant—Negligence—Failure to block frog.
    A master is not bound to furnish the best kind of appliances or to give an extreme character to the structure so as to insure safety. The measure of duty is reasonable care.
    S. Same—Assumption of risk.
    Plaintiff’s intestate, a switchman, while uncoupling moving cars, caught his foot in a frog and was run over and killed. The evidence tended to show that some guard rails were blocked and some not. Held, that defendant was not liable for failure to block the frog, and that intestate assumed the risks of the employment, such as the one in question.
    Appeal from judgment dismissing the complaint.
    Action to recover damages for the death of plaintiff’s intestate, Arthur McNeil, while in the employ of defendant.

      John W. Lyon, for app’lt; Lewis E. Carr, for resp’t.
   Barnard, P. J.

Arthur McNeil on the 2d of December, 1888, was killed by being run over by the moving cars of defendant. The deceased was a brakeman in the employ of defendant, and the accident to him happened while he was engaged in switching cars. The deceased stepped between moving cars to disconnect them, and his foot was caught between the guard rail and the main rail. The negligence claimed on the part of defendant is that the company did not block the guard rail, which is done by placing in the open rail between the two rails something which would prevent the foot of an employe from being caught between the two rails. The rule is that an employe assumes the risk of the employment. Kern v. DeCastro Company, 125 N. Y., 50 ; 34 St. Rep., 363 ; Davidson v. Cornell, 132 N. Y, 228; 43 St. Rep., 887.

The master is not bound to furnish the best kind of appliances or to give an extreme character to the structure so as to insure safety. The measure of duty is reasonable care. The evidence tended to show that some guard rails were blocked and some not. The case cannot be distinguished from the case of Appel v. Buffalo, etc., R. R. Co., 111 N. Y., 550; 20 St. Rep., 90.

The nonsuit was, therefore, right, and the judgment should be affirmed, with costs. *

Dykman and Pratt, JJ., concur.


author: Ward, J.

text:
    The People ex rel. Charles T. Watkins v. The Commissioners of Excise of the Town of Warsaw.

      (Supreme Court, Special Term, Erie County,

      Filed August, 1893.)

    1. Excise—Local option.
    By §41 of chap. 401, Laws 1892, the legislature intended to recognize the system of local option or prohibition in existence at the time of the passage of the act, and the portion of the section providing that the act should not apply to a town where the majority of voters “have voted, or hereafter vote,” has reference to voting for commissioners who favor local prohibition.
    2. Same.
    Whenever a town selects three commissioners, and a majority of them are anti-license, that is local prohibition, and it is not reversed until a majority of the board have been elected the other way.
    3. Same—Refusal to grant license.
    The respondents refused to grant a license to relator, and give as a reason that a majority of the board were elected as no license commissioners. Held, that the application was denied for good and sufficient reasons.
    4. Same—Certiorari—Laws 1893, chap. 487.
    It is discretionary with the court whether it will grant the order prescribed by the act of 1893, even though it should be of the opinion that in a strictly legal sense the license has been arbitrarily denied, or denied without good legal reasons.
    Certiorari upon the relation of Charles. T. Watkins to review the action of John B Smallwood, Stephen C. Vincent and J"ames O. McClure, as commissioners of excise of the town of Warsaw, in the county of Wyoming, in refusing to grant the relator a hotel license for the sale of liquor.

      I. Sam Johnson, for relator; George W. Botsford, for commissioners, resp’ts.
   Ward, J.

The relator keeps a hotel in the town and village of Warsaw known as the “Watkins House.” This village has about 4,000 inhabitants. Watkins is a man of good character, and competent to keep a first-class hotel. The hotel building is a fine one, and every way suitable to carry on the business of hotel keeping, and properly furnished for that purpose.

Commissioner Smallwood was duly nominated and elected as a no license commissioner of excise for the town of Warsaw at a regular town meeting held in February, 1891

Stephen C. Vincent was in the same manner nominated and elected as a no license commissioner at the town meeting held in February, 1892.

Commissioner McClure was duly nominated and elected as commissioner favoring license, at the town meeting held in February, 1893. These commissioners duly qualified and acted as such, and on the 7th day of June, 1893, while they were in session as a board of excise in the town of Warsaw, the relator presented to them a written application for a hotel license, accompanied by a bond and affidavits, which bond and application were sufficient, and as required by law. The commissioners made return to the writ, which, among other things, set forth that after fully considering said application, it was determined by a majority of said commissioners, comprising such board, that no license should be granted thereon, and the statement was then and there recorded of the reasons of such determination, as follows: 1 That a majority of the excise board were elected as no license commissioners,’ all of which is respectfully submitted, including copies of all papers upon which our action is based.”

The papers here referred to were the application, bond and certain affidavits showing the qualifications of the relator, the condition of his premises, and other reasons submitted to the board to justify the granting of a license. Several other applications were made for licenses in the same town by hotel keepers, and all were rejected for the same reason. ¡No licenses were, therefore, granted in the town; the commissioners elected as anti-license commissioners voting against the license, and the other one voting for it. These facts are undisputed, and the question is fairly up whether the reasons given by the commissioners for their action in refusing a license to the relator affords any justification for their action, or whether the court would treat their refusal as arbitrary, and direct them to grant a license to the relator.

A brief review of the excise legislation of this state may be profitable in disposing of the question arising on this proceeding. By chapter 300 of the Laws of 1845, as amended chapter 14, Laws 1846, the electors of the several towns and cities of this state were authorized to determine by ballot whether the board of excise should grant licenses to sell intoxicating liquors, and if they should vote in favor of no license, then the board was prohibited from granting any licenses. These acts were repealed by chapter 274 of the Laws of 1847.

The legislature in 1855 (chapter 231 of the laws of that year) passed an act entitled “An act for the prevention of intemperance, pauperism and crime.” This was known as the prohibitory law, whereby the sale or giving away of intoxicating liquors was absolutely forbidden except for mechanical, chemical, medicinal and sacramental purposes under certain conditions, and a violation of this law was punished criminally; and it further provided that all acts and parts of acts inconsistent therewith were repealed.

The state thus entered upon a system of prohibitory legislation, the first in its history.

But this was a short-lived system, for the court of appeals in March, 1856, in the action of Wynhamer, in Error v. The People, reported in 13 N. Y., 378, declared the law unconstitutional.

The next year the legislature passed a general act, chapter 628 of the Laws of 1857,' entitled “ To suppress intemperance and to regulate the sales of intoxicating liquors.” Tins is what is generally known as the excise act of 1857, and was comprehensive in its character, establishing a complete license system and providing punishments for its violation, and for the appointment of county commissioners in each county who “ should have the power to grant licenses to inns, taverns, etc.,” hut the conflict between those ■who favored, prohibitory legislation and those who favored the license system was not yet ended.

In 1870 (chapter 175 of the laws of that year) another act was passed on the subject, entitled “An act regulating the sale of intoxicating liquors,” and provided that the boards of excise of the towns should be the “supervisor and justices of the peace thereof for the time being, respectively,” and they should have the power to grant licenses to any person or persons of good moral character who should be approved by them, etc., and made provision for the boards in villages as well. The county commissioners were thus in effect abolished and the subject of town licenses committed to the town officers.

By chapter 549 of the Laws of 1873 certain amendments were made to the two acts last mentioned, and concluded with this important provision, being § 6, “ nothing herein contained shall in any manner apply to any city or town where a majority of voters have voted for or shall hereafter vote for local prohibition in accordance with any law providing for such voting until such city or town should have reversed by vote such local prohibition.” We note here the reappearance of the prohibition sentiment in the legislation of the state; but this § 6 seemed to confine by its terms the operation of. that section to where a vote had been in accordance with some law providing for such voting,and as the only law providing for snch voting that had existed in the state had been repealed as above shown, this proviso to the act of 1870, if strictly construed, was incapable of being carried into effect, but still it stood to some extent as a legislative declaration in favor of local prohibition.

The next year, by chapter 444 of the Laws of 1874, the legislature provided for the election of excise commissioners in the several towns at their annual town meeting, who should constitute a board of excise of their several towns, and discharge the duties imposed upon the supervisor and the justices of the peace of the town by chapter 175 of the Laws of 1870, and laws amendatory thereof and supplementary thereto.

By § 2 of this chapter 444, it was provided that the commis.sioners should be voted for upon a separate ballot, which should be deposited in a separate box marked “excise.” No duties •other than those of commissioner of excise were imposed upon ■these new officers. The purpose of the statute seemed to be to utterly divorce this office from all other town offices, and to provide for the election by the people of independent excise commissioners.

It is notorious, so much so that the court can take judicial notice of the fact, that from the passage of this last act until the present time, a period of over eighteen years, local option or 'prohibition has been a question at issue in the towns of this state upon which the electors voted. These commissioners would generally be nominated in primary meetings or caucuses, the same as other town officers. They were nominated and voted for, either as commissioners who would grant licenses under proper -conditions or who would not grant them under any circumstances. A commissioner was elected each year, a majority of the board governed and was a quorum. The commissioner stood pledged to carry out the wishes of the people who elected him. There was no difficulty about it. The will of 'the people as to local prohibition was as much expressed in the election of their representatives as commissioners, and as effectually, as though it was printed on their ballots.

While the legislature had failed to create in terms “ any law providing for such voting” as expressed in the act of 1878, yet the people in practice everywhere supplied this deficiency, and carried out the purpose of the legislature as to local option by adopting this method.

• And the contest between the prohibition and license system seemed to terminate and be settled upon the proposition of local prohibition or not as the voters in the towns might determine. 'The contest was taken from the law makers to the people in their various localities. It was perhaps the only result that •could be secured under all the circumstances and conditions growing out of the traffic in intoxicating drinks, involving as it ■did such large pecuniary interests, and about which public sentiment was so much divided.

The commissioners thus elected were faithful to the trust reposed in them by the people, and in towns where anti-license commissioners, or a majority of them, had been elected, no licenses were granted and local prohibition was secured. Those statutes, with some amendments not materially affecting them, remained in force until the passage by the legislature of chap. 401, of the Laws of 1892, which was a general excise act, consolidating the other acts to a large extent, but repealing existing laws on the subject of excise, including the acts of 1857, 1870 and 1878, above referred to, and the amendments thereto, saving and excepting the act of 1874, providing for the election by the towns of excise comissioners, but during this eighteen years no attempt was made by the legislature to interfere with or overthrow the local prohibition system, that had been adopted as above stated, but tacitly consented to and approved of the same in the act of 1892. First by retaining the system of town commissioners intact, through which local option or prohibition had been exercised. And secondly, by § 41 of the act of 1892, which is as follows: “Local option. Nothing herein, except § 31, shall in any manner apply to any town where the majority of voters have voted for or hereafter vote for local prohibition until such town shall reverse by vote such local prohibition."

The § 31, referred to, makes it a misdemeanor to sell without a license. This is a repetition of the local option clause in the act of 1873, with this significant omission, leaving out the words “in accordance with any law providing for such voting."

The legislature had discovered that there was no law in existence, that, by its terms, provided for su'ch voting, and the conclusion right here is irresistible, that by such omission it did recognize this local option system through the election of com-' missi oners.

What did the legislature intend by this local option clause in the act of 1892? We are not to assume that this clause is meaningless or that it was inserted in so important a statute without a full comprehension by the legislature of its purpose and effect; nor are we to assume that this clause was thrown into the act to delude certain members of the legislature into voting for it who may have had prohibition constituents. We cannot impute any such trick as this to the legislature. It was put there for a purpose, and that purpose must be subserved.

In construing a statute, effect must be given if possible to all the language employed. People v. McGloin, 91 N. Y., 250; Gibson v. Lenane, 84 id., 183.

At the time of the passage of the act of 1892 there was no general law in existence providing for voting directly for local prohibition, independent of voting for commissioners, nor have I been able to find any special act granting the right to particular-towns to vote upon this subject. The only instance that I have discovered is that provision in the charter in the village of Gloversville providing for the submission of the question of license or no license to a vote of the electors authorized by chap. 505 of the Laws of 1873. See the Village of Gloversville v. Howell et al., 70 N. Y., 287. This was a law affecting a village, and not a town or towns. Had there been a general act providing for such voting, or had there been special acts authorizing such voting in particular towns to any extent, it might be claimed that this local option clause in the act of 1892 referred to such general law or such special act; but in the absence of any such condition, we must conclude that this clause refers to the only system of local option in vogue in the state, and that was the one I have been considering. We are permitted to make this deduction both by reason and by authority. It is reasonable to suppose that a system of local option which had been in existence for eighteen years without rebuke or dissent from the legislature, and that was known to every member of that body, and affecting such vital interests,, and that was so important, that when the legislature came to deal with the subject and consolidate the excise laws, it took notice oí this system and provided for it.

It is elementary that a thing which is within the intention of the statute is within the statute, though not within the letter of it.

“ A strict and literal interpretation is not always to be adhered to. It is the spirit and purpose of the statute which are to be regarded in its interpretation, and if these find fair expression in the statute it should be so construed as to carry out the legislative intent, even though such construction is contrary to the literal meaning of some of the provisions of the statute. A reasonable construction should be adopted in all cases where there is a doubt or uncertainty in regard to the intention of the law makers.” People v. Lacombe, 99 N. Y., 43.

In construing a statute the court may properly refer to the history of the times and situation of the people when it loas passed for the purpose of determining its meaning, scope and intention.” Matter of Breslin, 45 Hun, 210; 10 St. Rep., 80.

In the case last cited the question arose whether hotel keepers had the right to sell spirituous liquors to their guests on Sunday to be used with their meals. It was contended that this could not be done under the prohibition contained in § 21 of the act of 1857, which forbade the sale or giving away of intoxicating liquors or wines on Sunday, and the court say, general term, first department, that statutes are to be construed with reference to existing things for the purpose of ascertaining what was the good that could result or the evil that was to be overcome by their passage. That it "was perfectly notorious that when the act of 1857 was passed that the existence of a bar drinking saloon as a part of a hotel was a distinguishing characteristic and that there intoxicating liquors, drinks or beverages were to be obtained during the day without reference to meals, and the evil aimed at by the act of 1857 was general bar drinking on Sunday and not the use of liquor at meals. That while the legislature has been cognizant since 1857 of the sale of liquors by hotel people for their guests at their meals it had made no special provision against it, and had thereby recognized it as lawful and proper. This case goes very far to sustain the position here taken. See as strongly confirmatory of this view, Sixth Avenue Railway Co. v. Gilbert Elevated R. R. Co., 3 Abb. N. C., 372 et seq. and notes.

The United States supreme court adopts this rule: “ In construing an act of congress the courts may recur to the history of the times when the act was passed.” United States v. Union Pacific R. R. Co., 91 U. S., 79.

The entire subject of' a statute and the policy may be invoked in aid of the interpretation. State v. Mayor of Patterson, 35 N. J. L., 197.

I have reached the conclusion that the legislature by the local option clause in the act of 1892 meant to recognize the system of local option or prohibition which was in existence in the state at the time of the passage of that act; that the portion of that clause that the act should not apply to any town where the majority of voters have voted, or hereafter vote has reference to voting for commissioners who should favor local prohibition. Any other conclusion makes this clause useless and senseless. It follows from this that the towns of the state can continue to secure local option as in the past, if such is the will of the voters.

The learned counsel for the relator argues that conceding that this local option clause is to receive the construction I have given it, that the town of Warsaw has reversed by vote such local prohibition, inasmuch as the last commissioner named was elected as a license commissioner, and that being the latest expression of the town, local prohibition has been reversed there. I cannot concur in this view. The commissioners act as a body and represent as a body the town. A majority governs. Whenever a town selects three commissioners and a majority of them are anti-lilicense, that is local prohibition, and it is not reversed until a majority of the board have been elected the other way.

In the People v. Truman et al., 23 N. Y., Supp. 913; 53 St. Rep. 726, the commissioners of the town of Owego made return to a writ of certiorari issued to them to inquire why a license had been refused to the proprietor of a hotel in Owego, and they returned as a reason for such refusal “ that a majority of this board, to wit, *" * * were nominated and elected as no license commissioners and that a majority of the voters of the town of Owego, at the last two annual town meetings therein, had practically expressed by their votes for commissioners of excise their opposition to the granting of any licenses, and there is no public necessity for granting such license, and that the granting of such license would be injurious to the welfare of the public ; that from all the facts .and circumstances of this case this board, in the exercise of its discretion, has refused to grant this license. Justice Forbes, in pronouncing the opinion of the court in that case, after referring to § 6 of the act of 1873 above cited, and also referring to the act of 1845, says: “I have been unable to find any law which wholly revives the act of 1845. While the peculiar wording of § 6 of the Law of 1873 predicates the validity of local option upon some prior act of the legislature which it was assumed was then in force permitting local prohibition, it will be seen, however, by reference to chapter 401, § 41 of the Laws of 1892, that local option is in effect re-enacted without prescribing definitely and at length, as did the law of 1845, the method of preparing the ballot and the casting of the vote of the people. This act is so framed that it does not make § 41 of the act of 1892 dependent upon any prior law of this state, but in terms it does give the right to a majority of the voters of a particular town to say by their ballots that local prohibition shall be enforced in that town when a majority of the voters may so determine.” After citing § 41 of the act of 1892, he proceeds as follows: “ It is true that there is no method pointed out by which a ballot shall be prepared or in which the voter shall say he is in favor of local prohibition, but he surely has the right to nominate in caucus, or without such nomination to place upon his ticket any name and vote for any person whom he knows to be in favor of not granting licenses. (Citing Montgomery v. O'Dell, 51 St. Rep. 444.) And if a majority of the voters of a town so express themselves by their ballots, voting for an excise board upon whom they rely not to grant licenses, they have a perfect right to do so. And in that manner they do by local option, in effect, establish local prohibition within the meaning of%4Aof the Laws of 1892; and the commissioners so elected have the undoubted right, relying upon, their own judgment, supported by a majority of the "legal voters to refuse all licenses and thus establish, in fact, local prohibition under that law.”

This, it seems to me, affords a complete answer to the application in this proceeding to compel the commissioners of Warsaw to grant a license to the relator. The learned justice in that case also says, at page 915 : “ It is too plain to admit of any serious dispute that it was not intended by the legislature of this stat° to substitute a justice of the supreme court in the place of the commissioners of excise when they refuse to act favorably in granting a license to any person, and if that were the object of the statute referred to, the act is clearly unconstitutional. ” And he proceeds to give his reasons for that conclusion, the substance of which is that a justice of the supreme court cannot and should not be compelled to exercise any except judicial functions, and citing with approval the decision of Justice Parker in People v. Waters, 23 N. Y. Supp., 691; 53 St. Rep., 720. Justice Parker, in his opinion in that case, at page 693 : “ But it may be said that the legislature could provide for two administrative tribunals to pass upon the same question, of which the board of excise should be the first, and the discretion of the last to be final; that the second or reviewing officials should not be governed lay the legal rules governing a review of an administrative board, but should pass upon the application in the same manner as the statute authorizes boards of excise to do. That it was intended by this act that the last official to exercise the discretion permitted by the statute should be a court or a judge thereof. Clearly, such could not have been the intention of the legislature, for it was without power to require the supreme court or the justice thereof to perform other than judicial duties.” And Judge Parker, with his usual ability and clearness, proceeds to establish this position both by reason and authority. It seems to me that the claim of the relator in this proceeding substantially comes within the condemnation of the paragraph just cited from Judge Parker’s opinion.

The court is substantially asked here to overrule the judgment and discretion of the commissioners, and direct them absolutely to issue a license to the relator. The statute, chap. 487 of the Laws of 1893, does not command the court to make the order asked for here, but the court may make an order commanding, etc. So it is discretionary with the court, even should the court be of the opinion that in a strictly legal sense the license had been arbitrarily denied, or denied without good legal reasons. No one has the right to demand a license. 23 N. Y. Supp., 691, 913; 53 St. Rep., 720, 726, supra.

The question remains whether the refusal in this case to grant a license to the relator was arbitrary or without good reasous. The reference to the statutes hereinbefore made shows that the commissioners had the power and might grant the licenses, but are not commanded to do so. Whatever else may be said, these commissioners have acted in good faith, believing that as they were elected not to do the very thing that relator asks, and are honorably bound by their obligation to the people electing them not to do, it cannot be said that they were acting wilfully, or that they were intentionally violating the law. Were they acting arbitrarily or without good reasons in a legal sense ? I cannot find that they were.

The commissioners were asked by the relator to be false to their obligations and pledges, and because they refuse so to do the court is now asked to compel them. It is at least an ungracious office that the court is called upon to perform in this instance, and for all the reasons stated above it will not be done.

It follows that the commissioners, in refusing a license to the relator, did not act arbitrarily or without good reasons, but that the application for a license to the relator was denied for good and sufficient reasons, and, therefore, the determination of the board of excise commissioners of the town of Warsaw must be, and hereby is, sustained.

An order may be entered quashing the writ of certiorari and dismissing these proceedings accordingly.

Costs are not allowed to either party.


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    Isabella Horton, Resp’t, v. William Barnes et al, App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Depositions—Examination of party before triar—Affidavit.
    Where the application for an examination of the defendant before trial was made on the pleadings as well as the affidavit of plaintiffs attorney, and all the statements alleged in the affidavit on information and belief are contained in the complaint, the papers are sufficient to sustain the order.
    Appeal from order denying defendants’ motion to set aside an order for the examination of the defendant Wainwright before trial. '

      Raphael J. Moses, Jr., for app’lts; Roswell H. Carpenter, for resp’t.
   Pratt, J.

This is an appeal from an order made at special term denying defendant’s motion to set aside an order for the examination of the defendant Wainwright before trial.

The motion was made on certain grounds particularly specified in defendants’ notice of motion. It is unnecessary to refer to but two of them, the third, that “ the sources of the affiant’s information are not disclosedand the fourth, that “ the allegations as to plaintiff’s intentions and allegations are not corroborated by the plaintiff.” The answer to both of these grounds is that the order for defendant’s examination is based on the pleadings as well as the affidavit of plaintiff’s attorney. Every allegation in the affidavit that is alleged on information and belief is contained in the complaint. In our opinion the papers on which the order was granted were sufficient, and the motion to set aside the order was properly denied. The order appealed from should be affirmed, with costs.

Barnard, P. J., and Dtkman, J., concur.


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    John R. Drake, App’lt, v. The New York Iron Mine, Resp't.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Stay—Non-payment of costs of former action—Identity of subject MATTER.
    Where upon the former trial the plaintiff sought to introduce by supplemental complaint the facts upon which the present one is based, but was prevented by the objection of defendant and the ruling of the court thereon, the defendant cannot be allowed, for the purpose of procuring a stay for non-payment of costs of the former action, to assert the causes of action to be the same.
    Appeal from order staying all proceedings against the defendant, the New York Iron Mine, until plaintiff pays the costs and allowance of a former action.

      Roger M. Sherman, for app’lt; Frank E. Smith, for resp’t.
   Pratt, J.

The plaintiff appeals from an order staying proceedings until the costs of a previous action are paid.

Such orders are properly made where a plaintiff vexatiously pursues a defendant with unnecessary litigation, Re Stone, 3 Cow., 880, but there is no inflexible rule compelling courts to make such order where the plaintiff is not in fault, and the result would be not to prevent, but to promote injustice.

In the present case the complaint, which is verified, states a good cause of action. There is no answer, not even an affidavit of merits, nor any doubt thrown over the justice of plaintiff’s claim.

So far as can be learned from the various records before us, the plaintiff has for many years had meritorious grounds of complaint against which defendants have successfully defended themselves by skillful use of technicalities. Whether in such case a stay of proceedings should be granted, even should defendants bring themselves within the letter of the rule, may well be doubted.

But one of the grounds of a successful application is identity of the subject matter of the actions.. In the former action, reported 25 J. & S., 404; 29 St. Rep., 207, the plaintiff sought to introduce by a supplemental complaint the facts upon which this action is based. This was prevented by the objection of the defendant and the ruling of the court that the present cause of action could not be introduced and tried in that action.

As defendants have once procured a ruling that the causes of action are different, and prevented a determination in that action of the facts now set up, rendering a new action necessary, they cannot now be sustained when they seek a stay, and assert the causes of action to be the same.

Order appealed from reversed, and the original motion denied, with costs in all the courts.

Barnard, P. J., and Dykman, J., concur.


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    Florence N. Mann, Resp’t, v. William D. Carter, Impl’d, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Attachment—Affidavit of plaintiff’s attorney.
    An affidavit made by the attorney ior plaintiff, who was absent from the state, in an action upon a promissory note in the attorney’s possession, which shows that he was informed by plaintiff that the amount of the note was due over and above all counterclaims known to her, and that defendants had admitted to him the making and non-payment of the note, is sufficient to show that the plaintiff was entitled to recover the amount of the note, and that there were no counterclaims against it, and to support an attachment granted thereon.
    Appeal from order denying motion to vacate an attachment.

      Wm. O. Campbell, for app’lt; Lowrey, Stone & Auerbach, for resp’t.
   Dykman, J.

This is an appeal from an order denying a motion to vacate ■ an attachment against the property of the defendant.

The motion was made upon the papers on which the attachment was issued, and is based upon the insufficiency of the affidavit upon which the writ was granted.

That affidavit was made by the attorney in fact and agent of the plaintiS. The action is upon the joint promissory note of the defendants for fifteen thousand dollars, which is in the possession of the agent.

He has held conversations with the defendants in which they have admitted to him the making and delivery of the note, and the non-payment thereof.

Those facts are stated in the affidavit, and they are-the grounds upon which the statements therein upon information and belief are made.

The affidavit was made by the agent because the plaintiS was absent from the state.

He states that the whole amount of the note is due with interest from the second day of January, 1892, over and above all counterclaims known to the plaintiS, as he is informed by her and verily believes.

That is a sufficient statement of the source of his information.

The insufficiency of the affidavit is claimed to result from its failure to show that the plaintiS is entitled to recover the sum of money claimed over and above all counterclaims known to her.

We must, therefore, determine whether the affidavit in question makes such a showing.

The affiant was the agent of the plaintiS, and had important knowledge and information respecting the claim upon which this, action is founded.

The note was in his possession, and the plaintiff had informed him that there was no counterclaim.

He had conversed with the defendants respecting the note, and they had admitted to him the making and delivery of the note and its non-payment.

All those facts were submitted to the judge who granted the attachment, and they were sufficient to show that the plaintiff was entitled to recover the amount due upon the note, and that there was no counterclaim against it.

The facts stated in the affidavit required the action of the judicial mind, were sufficient to satisfy the judge that the plaintiff was entitled to the writ, and if they did so satisfy him, as they did, the attachment will not be vacated.

There are many adjudicated cases in our reports upon this question, but they all depended upon their peculiar facts, and but little aid can be derived from their examination.

Our conclusion is that the order should be affirmed, with ten dollars costs and disbursements.

Barnard, P. J., and Pratt, J., concur.


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    Harriet M. Palmer, App’lt, v. John M. Palmer, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Easement—Right oe way to burial ground.
    The father of the parties was the owner of a farm, in the rear of which there was a family burial plot. After his death the sons conveyed a piece of land adjoining the burial plot to plaintiff for' a burial place, and she conveyed lier share of the farm to them, neither of the deeds reserving or giving a right of way to the lot. There was another burial p'ace adjoining which fronted on a public lane which had been used to approach the family lot, which cornered thereon, for many years. A fence was built around the three pieces and steps made leading from the family lot to the lane, and defendant enlarged the lane so as-to give access for burials, and no objection was made to passage over the other plot. Held, that if a right of way of necessity ever existed over the farm, it was extinguished by the creation of a more convenient way of access through the lane. k
    Appeal from judgment in favor of defendant, entered upon decision by the court.
    -Action in equity to establish that plaintiff has a right of way from the public street across the farm of defendant over a specified course to a private burial ground in the rear, and to restrain defendant from interfering with her in the exercise of such right.

      Isaac N. Mills, for app’lt; Wm. A. Woodworth, for resp't.
   Barnard, P. J.

John Palmer, a resident of Mamaroneck, in Westchester county, owned a farm in Wicorn street, a public highway. There was in the rear of this farm a private family burying ground. Palmer died in 1872, leaving five children. Before his death he conveyed the then family burying ground to his three sons. The three sons in 1874 conveyed to the plaintiff and her sister a small piece of land adjoining this family burial plot to be a burial place for them and their heirs. Susan A. Dean, one of the sisters, conveyed this small plot to the plaintiff in 1876. There was no right of way reserved in the deed from the brothers to the two sisters, or in that from Mrs. Dean to the plaintiff. The questions presented are; was there ever a way of necessity, or, if there was, has it been extinguished b}r the creation of another and more convenient way of access to the lot? This is a question of fact under the evidence presented which involves an examination of the circumstances shown to have existed when the conveyance was made to the plaintiff and her sister. There was a very old burial ground called the Bloomer & Haight burial ground. On the west of this there was an old family plot of the Palmer family, with a path between the two plots running north and south. The plot conveyed to the plaintiff was north oE the Palmer plot and was at the end of this path; the two Palmer plots making with the Bloomer plot a substantially rectangular plot of land. The Bloomer & Haight plot fronted on an old lane and had been used as a means of approach to that lot for nearly a hundred years, (the Palmer plot). The Palmer plot reached the old lane at its corner only; but in 1872 the owners built a fence around the whole plot made up of the three burial grounds and made steps from the Palmer enclosure to the lane. In 1874, the plaintiff acquired her title to the plot in question, and on the same day she conveyed her interest in the defendant’s farm, and neither deed reserved or gave any right of way to the plot. Under .this state of these existing facts there was no right of way of necessity resulting to plaintiff and her sister. It was intended that the burials should be made in the plot through the lane over the stone steps or through the Bloomer & Haight lot direct from the lane. This lane is public. It is idle to doubt the fact. It has been open and used for nearly a century to go to a public burial ground. The right of way over the Bloomer piece is not disputed by any one. The plaintiff has a right in the Palmer plot and must approach the land in question through it, there being no connection with the defendant’s land otherwise. There are no grounds upon which a right of way of necessity can be based. The land can be reached through and by a public highway and the piece of land was bought and sold with that local understanding.

The deed of the defendant’s plot was conveyed with a right of way to it through the lane, and this small piece of plaintiff’s was but an addition to this plot in respect to burials. The way of necessity is extinguished. Some five or six years ago the defendant threw a portion of his land into the lane opposite the south end of the Palmer lot, which enabled persons to pass to the Palmer lot without going over private property of defendant. The widening of the lane gave access sufficient for burial purposes, but without width for wagons to pass. The burials have always been made in the old burial ground by steps from the lane. When the lane was widened so as to permit access direct from the lane to the Palmer lot the way was shorter to defendant’s lot and more convenient. This extinguished a right of access over deA i iiif one existed. Holmes v. Goring, 2 Bing., 76; Holmes V. Seely, 19 Wend., 507.

v; judgincut should be affirmed, with costs.

Pratt, J., concurs ; Dykmah, J., not sitting.


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    J. Walter Merritt, App’lt, v. Jacob Corlies, Ex’r, et al., Impl’d, Resp’ts.

      (Supreme Court, General Term,, Second Department,

      Filed July 28, 1893.)

    1. Will&emdash;Trust&emdash;Abrogation.
    Where a discretionary power is vested in the trustee a court of equity will not assume the power to abrogate the trust, especially in the absence of proof of misconduct on the part of the trustee.
    3. Same&emdash;Conflict of laws.
    The property of a decedent is to be distributed in accordance with the laws of the state of which he was a resident at the time of his death, and not those of an heir or beneficiary.
    Appeal from order sustaining demurrer to the complaint.
    Action to procure a decree to have plaintiffs share of his mother’s estate paid over to him.
    The mother’s will gave the residue of her estate to her executors in trust to divide the same into shares and hold one of said shares for each of her sons, with provisions as to the remainders, and also gave the executors and trustees the power to pay over any part, or the whole, of the share held for any child to such child whenever they are satisfied that it is safe and prudent and for the best interests of such child and liis family.
    The complaint alleges that plaintiff is a person of sound mind, not intemperate, wasteful or profligate, not financially embarrassed and is a good business man; that it would be safe and prudent and for the best interests of himself and family that the fund should be paid to him; that he is a resident of the state of Georgia, and that, under the laws of that state, no person can hold property as trustee for a person of sound mind and sober habits, whether as an estate in fee simple or as an estate for life; if only a life estate, he may hold it in possession, subject only to the rights of such remainder or reversion as may be fixed upon it.
    The defendants demurred on the ground that there was a defect of parties defendant, and that the complaint did not state facts sufficient to constitute a cause of action.

      S. K. Phillips (Robert L. Rodgers, of counsel), for app’lt; Herrick & Losey, for resp’ts.
   Pratt, J.

There is neither reason nor authority to support the contention of the plaintiff.

The plaintiff has referred us to many decisions laying down undoubted rules of law, but the difficulty with them is they have no application to the case in hand.

By a reference to the will, it will be observed that a discretionary power is vested in the trustees, and a court of equity will not assume the power to abrogate such p, trust, especially in the absence of proof of misconduct on the part of the trustee.

The contention that the property claimed should be distributed under the laws of the state of Georgia, where he resides, has no merit. The testator lived, made his will, and died in New York, and the property is located in this state and must be distributed under the laws thereof. Cross v. U. S. Trust Co., 131 N. Y., 380; 43 St. Rep., 254.

The case is too plain to admit of discussion.

Judgment affirmed, with costs.

Dykman, J., concurs; Barnard, P. J., not sitting.