author: Barnard, P. J.: Dykman, J.

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. AUGUSTUS N. WELLER, Plaintiff, v. CHARLES DE KAY TOWNSEND, Defendant.

      Election to fill a vacancy in the office of surrogate — the person elected holds only for the unexpired, term, of his predecessor'— Const., art. 6, sec. 15; a/rt. 10, sec. 5— cha/ps. 28, 46 of 1849; chap. 885 of 1867; chap. 859 o/1871.
    At the general election held in November, 1879, Alexander Hagner was elected surrogate of Queens county for the term of six years from January 1, 1880. On the lal ter day he entered upon the performance of the duties of that office and continued to discharge them until April 7,1880, when he died. On April 19,1880, the governor appointed a surrogate to hold the office during the time limited by the Constitution and the laws, who administered the office until January 1, 1881, when the defendant, who had been elected to the office at the general election held in November, 1880, entered on the performance of the duties of the office, and he still continues to discharge them. At the annual election held in November, 1885, the relator was, pursuant to a notice of election issued by the secretary of State, elected to the office of surrogate.

      Held, that the defendant was elected to fill the residue of the term of six years-for which Hagner had been elected, and that his term expired on January 1, 1886, from and after which time the relator was entitled to the office. (I)yk-man, J., dissenting.)
    SubmissioN to the General Term of tbe question, who, from and after January 1, 1886, was surrogate of Queens county.

      D. CJBrien, attorney general, and Winchester Britton, for the plaintiff.

      John E. Parsons, for the defendant.
   Barnard, P. J.:

Queens county has a population of over 40,000, and the office of surrogate, therein, is filled by a surrogate separately. Alexander Hagner was elected surrogate for six years, from January 1, 1880, and died in April, 1880.

In the fall of 1880, at the general election, Mr. Townsend was-elected surrogate. The question presented is whether the election was for a full term of six years or only to fill the residue of the term of Alexander Hagner. At the last general election (1885),. Augustus N. Weller was elected surrogate, and Townsend claims that there was no office then to fill. The case of The People ex rel. Rozenkranz v. Carr (86 N. Y., 512), although in some-of its features it resembles this one, has no relevancy. The office of surrogate in the city and county of New.York was subject to special laws and to a special constitutional provision in respect thereto, which controlled the case. It was held that the-special laws disposed of the argument, but the constitutional term was for six years in the city and county of New York. In this case the question must be met. By the Constitution the term of a county judge and surrogate is fixed at six years from the first of January next after the election of such officers. The legislature have power to provide for filling vacancies in these offices, but not for a longer period than the first of Januaiy, after the general election which is held after the happening of the vacancy. The argument for the respondent is that the constitutional term is six years, and that there is no vacancy after the commencement of the political year next after the happening of the vacancy, and that Mr. Townsend was, therefore, elected for six years, from January 1, 1880, and held the office until the end of 1886. The condition of the laws upon the subject is not satisfactory and justifies different conclusions, but I am led to the opinion that the office was vacant on tlie last day of December, 1885. The constitutional term is six years, but both the Constitution and the laws recognize a vacancy ra-the office. The legislature is given power to fill it and the limit of the power of withholding the question from the people is fixed. The legislature have passed no law providing for a filling of a vacancy in express terms, but by chapter 859, Laws of 1871, it was-provided that when a surrogate was elected to fill a vacancy, that the officer elected “ should enter upon the discharge of the duties of the office to which they have been elected immediately upon the receipt of the certificate of such election.” Both parties claim under this statute. Mr. Townsend, although he did not enter upon-the duties of his office until January 1, 1880, claims that such an entry upon the duties of the office after the election, was only filling-a vacancy up to January 1, 1880, when the full term commenced, and that it was within the power of the legislature to increase that, six years by the addition of the vacancy in the Hagner term. The construction seems to be a forced one. The system ,of our State government recognizes two terms of office, one for a full term and one to ñll a vacancy in sucb term. In some cases it is provided expressly that the election shall be for a full term even if the preceding incumbent had vacated his office before his full term expired. There are other cases where the same express rule is made, that the election shall be for the remainder of the term of the preceding officer. In respect to this office of surrogate the legislature has required that laws shall be passed to fill vacancies. The Laws of 1S71, which enacts that those officei’s who are elected to fill a vacancy shall at once enter upon the duties of the office, is more reasonably based upon a remnant of a term which remained from the old election of Ilagner than upon a legislative intent to add the part of the remnant between November and January, 1881. There was a vacancy in the office of surrogate of Queens county in April, 1880. The governor appointed a successor to hold according to law. By the Constitution this appointment could go no longer than 1st of January, 1881. There would then be a vacancy to be filled by popular election, and the legislature had provided that in such cases the newly elected officers should be let in at once after the election, •and Ur. Townsend should have done so by right.

My conclusion, therefore, is that the election of Mr. Weller as surrogate was good, and that the term of the respondent expired on the 31st of December 1885. It is the Ilagner term which was for 'the constitutional term of six years, and the portion left after his death is a vacancy in the Ilagner term. The office should, therefore, be given to the person who was elected in November by the people.

Pratt, J., concurred.

Dykman, J.

(dissenting):

There is a controversy between the parties to this action in relation to the office of surrogate, and it has been submitted to the 'General Term upon a case containing the following statement, which has the acquiescence of both parties. My conclusion, how-over, does not coincide with that of my associates, and it is proper for me to assign my reasons for such disagreement:

At the general election in November, 1879, a surrogate was •elected for six years from January 1,1880, who entered on the performance of his official duties on that day and continued in office until April L, 1880, when be died. On the 19th day of April, 1880, the governor appointed a surrogate to hold the office during the time limited by the Constitution and the laws. The officer so appointed administered the office until January 1, 1881, when he was succeeded by the defendant Townsend, who was elected in November, 1880, and he has executed the office since his succession thereto.

In November, 1885, the relator Weller was elected surrogate pursuant to the notice of election from the secretary of State, which specified as one of the officers to be elected in Queens county a surrogate in place of the defendant Townsend, and the relator has received a certificate of his election. It is now the claim of the defendant that he was elected for a full term of six years which is yet current, while the relator claims the office on the theory that the defendant was elected for the unexpired term of the deceased incumbent, and as a result that his term of office expired with the year 1885. Such are the substantial and dominating facts from which we are required to produce a surrogate for Queens county. The office is legislative, but the term or boundary of the office is prescribed by the fundamental law. The Constitution, therefore, and the acts of the legislature passed to execute its intention and carry into practical operation its requirements and its provisions, must furnish the rule for the determination of this controversy.

The first appropriate constitutional provision which we must bring to our aid in the solution of the questions presented is this: “ The existing County Courts are continued, and the judges thereof in office at the adoption of this article shall hold their offices until the expiration of their respective terms. Their successors shall be chosen by the electors of the counties for the term of six years.” * * * “ qipg county judge shall also be surrogate of his county; but in counties having a population exceeding forty thousand the legislature may provide for the election of a separate officer to be surrogate, whose term of office shall be the same as that of county judge.” (Sec. 15, art. 6.) The next pertinent portion of the Constitution reads as follows : “ The legislature shall provide for filling vacancies in office, and in case of elective officers no. person appointed to fill a vacancy shall hold his office by virtue of such appointment longer than the commencement of the political year next succeeding the first annual election after the happening of the vacancy.” (Sec. 5, art. 10.)

This provision of the Constitution did not execute itself, and therefore, in obedience to its direction, a law was passed in 1849, which was amended the same year, and again in 1867 (chaps. 28 and 46 of the Laws of 1849, and chap. 835 of the Laws of 1867), as. finally amended and now extant, the statute has these words: Whenever vacancies shall exist, or shall occur in any of the offices-of this State where no provision is now made by law for filling the same, the governor shall appoint some suitable person who may be eligible to the office so vacant, or to become vacant, to execute the duties thereof until the commencement of the political year next succeeding the first annual election after the happening of the vacancy at which such officer could be by law elected.” (1867,. chap. 335, § 1.)

This statute contains the limitation attached to the appointing power by the organic law, respecting the retention of t'he office until the beginning of the political year next succeeding the first annual election after the vacancy happens, and under it the appointment was made to fill the vacancy resulting from the death of the first incumbent. That appointment is unchallenged, and its legality may be assumed.

The next statute to be brought into view is chapter 859 of the Laws of 1871, but the only part of it material here is section 5, reading as follows: The separate officer elected and performing the duties of the office of surrogate and the legal officer discharging the duties of county judge and of surrogate, and elected at the election provided for in this act, shall enter upon their duties on the first day of January next after such election, and shall hold their office for the term of six years from said first day of January; but where such officer shall be elected to fill a vacancy, then they shall enter upon the discharge of the duties of the office to which they have been elected immediately upon the receipt of the certificate of such election.” (Chap. 859, Laws of 1871.)

The object of this statute was to provide for the election of certain judicial and other officers, and to fix their terms of office, and such was the specification of its purpose contained in the title. It was not the intention of the legislature to provide in that act a mode •of supplying a vacancy in either of the offices named therein, and it contains no such provision. So, in obedience to the expressed purpose and intention of the legislature, the section already quoted provided that the officer elected surrogate should enter upon his -duties on the first day of January after such election and hold his ■office for the term of six years thereafter. That was the first and great object of the section, and then, in contemplation of an election to fill a vacancy, the time was specified when an officer elected for that purpose should assume his office ; but the time for which he should hold the office was not fixed, and has not been prescribed in any way. The only elective term known to the law is the six years’ term.

That statute was amended in 1881, by the addition of. a section in relation to a vacancy in the office of county judge, by which a vacancy in that office before the expiration of the term must be filled for a full term of six years at the general election, if it ensues not less than three months after such vacancy occurs, and until such election an appointment may be made to fill the vacancy, and the appointee holds until the last day of December. This amendment applies only to the office of county judge, but the same rule may be applied to the office of surrogate, because no statute requires a full unexpired term to be served out before a new term shall commence for a newly elected surrogate. The term of the office is ■established by the statute for the constitutional period of six years, and no shorter or other term is prescribed, or even mentioned, and it was beyond .the competence of the legislature to make it otherwise. That portion of the section quoted has relevancy to this case, and the latter part has not, because the defendant was not elected to fill a vacancy. At the time of his election the office was in possession of a surrogate, in the actual discharge of his functions, who had been legally appointed, as we have seen, and'there was no vacancy to fill. The appointment was coextensive with the vacancy which created its necessity, and an office is never vacant while any person is authorized to act in it, and is in possession of it in the discharge of its duties. (People v. Van Horne, 18 Wend., 518.)

Section 5 of article 10 of the Constitution contemplated and required legislative action which should provide a plan for filling vacancies in office by appointment, an 1 for elective offices specified a time beyond which such appointee should not hold, and when hi», term of office should cease and the office be again restored to the control of the electors ; and the law of 1849, with its two amendments,, was the response to that requirement.

The Constitution and the statute of 1849, as amended, conferred the power of appointment, which was exercised by the governor in this case, and the plain conclusion is, that such appointee held the office until the commencement of the political year next succeeding the first annual election after his appointment, and n» longer. The object of this last limitation was to preserve the elective principle, and to restore the office as soon as practicable to an officer chosen by the electors.

That provision of the Constitution came under the consideration of the Court of Appeals in the case of The People v. Keeler (17 N. Y., 370), and the opinion of the court contains suggestions which are serviceable here, although the case itself is not an authority. Among other things it is there said : “Nearly all the offices provided for by the Constitution have fixed terms of service. If a vacancy occurs during the term, it is filled (if no particular provision for the particular office is made by the Constitution itself) pursuant to the provision under consideration, but in the case of elective offices an appointment to fill the vacancy is so limited in duration as to preserve as far as practicable the elective principle.” * * * “Hence, instead of the nearest possible approximation to the elective theory, the convention adopted that which was practically the nearest, by allowing an appointment to fill a vacancy to extend to the commencement of the next political year after the election. Such an appointment to a State office would still be for the vacancy and would not embrace a longer period. The space of time between the election and the beginning of the next year would be a part of the term of the late incumbent. The appointee would hold to the first day of -January succeeding the election, and the person chosen by election would enter into the-office on that day.”

It is plain, therefore, that the defendant, by virtue of his election, could take no portion of the vacancy, and that is in entire harmony with the latter portion of section 5 of the statute of 1871, an election to fill a vacancy is there contemplated, and such an election may come. In this very case if no appointment had been made to satisfy the vacancy, and it had continued down to the time of the defendant’s election, then he might have assumed the office under the section on the receipt of his certificate because it was vacant,, and that state of facts would present the question now raised by the relator respecting the duration of the defendant’s term of office under such circumstances. But now no such question arises. The vacancy was supplied by appointment as we have seen and its whole capacity was occupied by the appointee, but as he could hold the office only down to the following January, an election became necessary, and from that necessity grew the election of the defendant.

For what term, then, was he elected ? There was but one term for him, and the Constitution and the statute provided no other, and as he was entitled to one he could take only the one prescribed for him, and that was a full term of six years’ duration, commencing on the first day of the political year next succeeding his election. It seems to result as an easy conclusion that the law invested him with the title to the office for the full term of six years. Why should it be held otherwise in the absence of constitutional or statutory coercion or circumscription ? Why should it be held that the people receive back the broken and shattered fragments of that official term, when they are the only source from which an entire term can flow ? They bestowed the office on the deceased incumbent as a trust, and at his death it reverted to them as the source of its emanation. They possess all political power and supremacy in a plenitude unimpaired and unrestrained except by themselves, and when an office is laid down in any way, or for any cause, they take it as of their first estate.

The Constitution and the laws contain the only limitations upon the power and sovereignty of the people, and in the absence of such restrictions there exists no reason why the freedom of the electors should not be exercised in its unrestrained supremacy. Nothing in reason or utility, and no consideration of public policy, require the expiration of six years from the time the first incumbent assumed his office before the people can again elect for a full term. Such a rule might require several elections during the period of six years if so many officers should unfortunately die during that time, and thus entail much useless embarrassment, uncertainty and trouble. When the first incumbent died the office fell in and returned to the people in all its fullness, but the vacancy was supplied by appointment, and they did not assume to fill the office again until the January following, when it was free and open and fell under their unrestricted authority, and was delegated to the defendant.

A comprehensive view discloses no reason why the people could not and did not elect the defendant surrogate for the full term of six years. Take another view: office is a place to be filled by an officer made for a specified time, called a term. The •officer takes the title to the office for the length of his term, but his title may be divested by any cause that interrupts the continuity of his incumbency and leaves the place without a tenant. Among such causes is death ; the death of the officer terminates his title and ends his term. Re is vested with no rights in the office which out-last his life, and the breach caused by his death is called a vacancy, but it is a vacancy in the office and not in the term; that is finished and ended and the successor takes no portion of the term ■of the deceased incumbent, in any sense, other than taking the place for a part of the time originally included therein. The time for which the successor can hold place is fixed, and that constitutes his term entirely independent of the time or term of his predecessor, and when the limitation of his term is reached he, in his turn, yields the place to his successor.

In application of these views to this case it is to be observed that the term of office of the first named surrogate ended with his death. He possessed no rights in the office which survived him. He assumed the position as a place of personal trust, and all his rights in it expired with him. Then, under the law of 1849 as amended, his successor was appointed and that law prescribed his term of office and fixed its limitation and termination on the first day of the following January. That was the end of his term. Then the defendant came in under an election and took the place by an independent term and for a new term. Both of the former terms here ended and nothing of them was left for him. The case has thus far been examined by the light of the Constitution and the laws, the aid of reason and considerations of public policy. There is but little else that we can bring to our assistance.

The relatGr has referred to the case of The People v. McKinney (41 Barb., 515) as an authority in bis favor, and the case does wear eome features similar to those found in this, but it was decided on the peculiar phraseology of the statute involved, which required the officer to be elected every three years, and, therefore, furnishes no assistance. What was said in the opinion respecting' section 5 ■of article 10 of the Constitution is in accord with this opinion.

The case of The People ex rel. Rozenkranz v. Carr (86 N. Y., 512) was a surrogate’s case like this, but it involved that office as it existed in New York county, and the court decided that section 15 of article 6 of the Constitution did not measure the term and had no application, but that the office in that county was a local office and wholly under the control of the legislature. If any conclusion can be extracted from the language of the opinion, it will be but an inference after all and the case itself is not an authority.

The provision of the Constitution for the supply of vacancies in office has fallen incidentally under the consideration of the courts in several reported cases, since its adoption, and the foregoing opinion is in full harmony with the views expressed by the judges in all such cases. They are: The People ex rel. Henderson v. Snedeker (14 N. Y., 52); Conover v. Devlin (24 Barb., 606); People v. Keeler (25 id., 23; S. C., 25 id., 422); The People v. Molineux (53 id., 9), and The People v. Keeler (17 N. Y., 370.)

My conclusion is, that the defendant was legally and regularly elected surrogate of Queens county at the election in November, 1880, and properly assumed the office on the 1st day of January, 1881, and could not take it sooner; that his term of office was measured and bounded by the Constitution of the State; that the legislature has, not abridged the term of office of the surrogate, and is without the power to change it in any way or to meet any event; and that the defendant was elected for a full constitutional term of six years and must hold the office during that period, and that he should have judgment in his favor on the submission, with costs.

Judgment for Weller, relator, upon the submitted case.


source: Caselaw Access Project

author: Dykman, J.:

license: Public Domain

text:
    HENRY N. CRUMMEY, Appellant, v. GEORGE H. MILLS and Others, Respondents.

      Infant — of ter attaining Ids majority lie cannot recover property deposited as a margin-under an agreement for the purchase of stocks, which agreement was made and' broken by him while an infant.

    The plaintiff, when under twenty-one years of age, deposited with the defendants, who were hankers and brokers, twenty-five shares of Western Union Telegraph stock which belonged to his mother as a mai'gizi for the puz’chase of more stock of the same company. Such purchases were made under the direction of the-plaintiff, and when the stock declined in the market he was required to make additional deposits of money to keep up his margin; and he did so from time to time, but finally failing to comply with such demands his stock was all sold out by the defendants and he was left indebted to them in an amount exceeding $1,100. The plaintiff, upon reaching his majority, repudiated the transaction and brought this action to recover the property and money deposited and paid to the defendants.

      Held, that the action could not be maintained. (Barnard, P. J., dissenting.)
    Appeal by tbe plaintiff from a judgment and order, entered at tbe Kings Circuit dismissing tbe plaintiff’s complaint.

      James P. Judge, for tbe appellant.

      W. S. Logan, for the respondents.
   Dykman, J.:

When tbe plaintiff was under twenty-one years of age, be deposited witli tbe defendants, who were bankers and brokers,, twenty-five shares of Western Union Telegraph stock which belonged to bis mother, as a margin for tbe purchase of more stock of the same company. Such purchases were made under the direction of tbe plaintiff, and when tbe stock declined in tbe market be was required to make additional deposits of money to keep up bis margin, and be did so from time to time, but finally failed to comply with such demands, and his stock was all sold out by tbe defendants, and be was left indebted to them over $1,100. Tbe plaintiff has now reached bis majority, and repudiates tbe transaction and seeks to recover tbe property and money deposited with tbe defendants during tbe entire transaction.

Tbe cause came on for trial at tbe circuit and resulted' in a dismissal of tbe complaint at tbe close of tbe plaintiff’s case, and be has appealed from tbe judgment. Tbe repudiation of tbe transaction must proceed on the theory of an executory contract, because such contracts made by a minor may be disaffirmed at bis majority, but no such privilege has ever been extended to a contract which has been executed and performed. No rule of law has ever permitted a minor to avoid a contract of which be has enjoyed the benefit, and recover back the consideration paid on tbe attainment of bis majority. (Medbury v. Watrous, 7 Hill, 110).

The transactions between tbe plaintiff and the defendants were j executed. Tbe plaintiff purchased tbe stock through tbe defendants and paid for tbe same, and they belonged to him, subject it may be to a lien in favor of tbe defendants, but tbe title was vested in him ; be furnished money and stock to tbe defendants to be employed in a specified manner, and they followed his directions.. In the purchase of stock they were bis agents and obeyed bis instructions. Tbe original deposit of stock and tbe subsequent payment of money were in pursuance of a contract, and in tbe course of its execution and performance. So that all be has done has been in tbe full execution of bis contract, and be cannot recover for money paid or property furnished for such purpose.

The case of Green v. Green (69 N. Y., 556) was a peculiar case dependent on its own facts, and .the decision was not intended to modify tbe rule of law applicable to executed contracts. “ If an infant advances money on a voidable contract which be afterwards rescinds, be cannot recover this money back, because it is lost to him by bis own act; and tbe privilege of infancy does not extend so far as to restore this money unless it was obtained from him by fraud.” (1 Pars, on Cont., p. 322.)

Tbe judgment should be affirmed, with costs.

PRAtt, J., concurred : Barnard, P. J., dissented.

Judgment and order denying new trial affirmed, with costs.


text:
    MARY HOLLAND and Others, Respondents, v. FREDERICK SMYTH and HENRY ALCOCK, as Executors and Trustees, etc., of THOMAS GUNNING, Deceased, Appellants.

      Witt — a devise to have prayers said in a church for the repose of the testator's soul is valid.

    A testator gave and bequeathed all the rest, residue and remainder of his estate “ to his executors, to he applied by them for the purpose of having prayers offered in a Roman Catholic church, .to be by them selected, for the repose of my soul and the souls of my family, and also the souls of all others who may be in purgatory.”

      Held, that the devise was valid.
    Appeal from an interlocutory judgment, entered in Kings county upon an order overruling a demurrer interposed by the defendant Alcock and directing a judgment for the plaintiffs.
    The action is brought by the plaintiffs, as the heirs-at-law and next of kin of Thomas Gunning, deceased, to have the third clause of the last will and testament of said testator declared void, and to obtain a judicial construction of other portions thereof.
    Thomas Gunning died in 1882, leaving a last will and testament appointing defendants as his executors and trustees, and by which he gave and bequeathed to his executors all his estate, amounting to about $28,000, in trust for the uses and purposes in said will set forth, to wit, to pay certain legacies, amounting in the aggregate to $16,500, and the rest and residue of his estate he disposes of by the following clause:
    “ Third,. All the rest, residue and remainder of my estate I give and bequeath to my said executors, to be applied by them for the purpose of having prayers offered in a Roman Catholic church, to be by them selected, for the repose of my soul and the souls of my family, and also the souls of all others who may be in purgatory.”
    The defendant Henry Alcock, one of the executors and trustees of said will, demurs to the complaint on the ground that it does not state facts sufficient to constitute a cause of action, contending that the third clause of the will is a valid disposition of the testator’s estate.

      J. Newton Williams, for the appellants.

      JE. H. Benn, for the respondents.
   Dykman, J.:

The third clause in the will of Thomas Gunning, deceased, is as follows:

Third. All the rest, residue and remainder of my estate I give and oequeath to my executors, to be applied by them for the purpose of having prayers offered in a Roman Catholic church, to be by them selected, for the repose of my soul and the souls of my family, and also the souls of all others who may be in purgatory.”

This action was brought by the testator’s heirs-at-law to have that clause declared void and their title to the residuary estate established. The defendant Alcock demurred to the complaint.

It cannot be said that this clause suspends for more than two lives the absolute ownership of the residuary estate. The evident intendment is that the prayers shall be offered at once, and if the executors select the church, and the prayers are offered and paid for, there will be no perpetuity. The objection to the clause more seriously urged is, that it creates a trust which is void for indefiniteness. But we do not think this view can be supported, and we think the rule was correctly stated by Mr. Justice CulleN, who passed on this will and upheld this clause. (See N. Y. Daily Reg., Jan. 29, 1886.)

We do not pass on the question whether this gift could be sustained as one to a charitable use. We rest our decision on the doctrine enunciated by Judge CulleN, that there is a certain class of testamentary dispositions, the object of which is solely the benefit, real or supposed, of the testator, or the gratification of his desires, which, if trusts are not charities, nor do they have any beneficiary, yet, nevertheless, are unquestionably valid. The precise legal doctrine on which they rest, the cases do not state. I think a provision for masses for the benefit of the testator’s soul is exactly akin to a provision for his funeral or monument. While decent burial is given by the law out of even an insolvent’s estate, 1 think the monument is no more an adjunct or concomitant of burial than the masses. * * * I think all the directions are of the same general character, and equally good in law.” There is nothing contrary to this doctrine in the cases to which the respondent refers.

The O’Hara Case (95 N. Y., 418) was decided on the theory that the testatrix attempted to create a pernetuitv. In Prichard v. Thompson (95 N. Y., 76) the fund was to be divided among charities of all denominations within two States. If this case were of the same class it would rather fall within the rule of Power v. Cassidy (79 N. Y., 602), upholding a-gift to all schools;, etc., of the Roman Catholic faith.

We think the gift' for masses valid, and that the judgment should be reversed, with costs.

Barnard, P. J., concurred.

Order overruling defendant’s demurrer and judgment thereon reversed, and demurrer sustained, with leave to plaintiff to plead over on payment of costs.


text:
    In the Matter of the Judicial Settlement of the Accounts of ADOLPHE A. KLOSTER and JULIUS LEHRENKRAUSS, as Executors, etc., of JOSEPH MASSON, Deceased.

      Set-off — a judgment, proceedings to enforce which wre stayed, by an appeal, is not the subject of set-off.

    In an action brought by one F. J. Moissen against the executors of Joseph Mas-son for services rendered to the deceased, the executors set up a note given by Moissen to the deceased, and found among his assets, as a counter-claim, and recovered a judgment thereon, from which Moissen appealed, giving security to stay proceedings. Upon the settlement of the executor’s accounts they sought to set off this judgment against a legacy given to Moissen by the will.

      Held, that their application so to do was properly denied.
    Appeal from that portion of a decree of the surrogate of Kings county, entered in proceedings for the judicial settlement of the accounts of the executors of Joseph Masson, deceased, which disallowed an offset of a judgment against a legacy due to Erancis J. Moissen.

      W. D. Veeder, for the executors, appellants.

      Ayres <& Walker, for F. J. Masson, legatee, respondent.
   Dykman, J.:

The executors of Joseph Masson appeal from a portion of the decree of the surrogate of Kings county settling their accounts. The will gave F. J. Moissen, the respondent, a legacy of $300, Among tbe assets of tbe estate tbe executors found a note made by Moissen to tbe testator for $200.

In an action brought by Moissen against tbe executors for services to tbe deceased, they set up tbe note as a counter-claim and bad a judgment on it amounting, witb costs, to $346.42. Moissen has appealed from the judgment and given security. When the executors accounted they sought to set-off their judgment against the legacy, but the surrogate refused and from that portion of tbe decree tbe executors ’appealed.

Tbe cases cited in Hardt v. Schulting (24 Hun, 345) are conclusive against the executors’ right to set-off their judgment against Moissen’s legacy, and fully support tbe determination of tbe surrogate that a judgment so secured on appeal has not sufficient vitality to become the subject of a set-off. In Terry v. Roberts (15 How. Pr., 65), decided at Special Term in 1857, this principle was affirmed, and to obviate its disadvantage a stay was granted till tbe appeal should be determined. A note to the case states it was affirmed at General Term. In Pierce v. Tuttle (51 How. Pr., 193) tbe plaintiff bad judgment against defendant, and it bad been affirmed in tbe Court of Appeals. In another action between tbe same parties defendant recovered judgment from which an appeal was pending when execution was issued and a motion made to set-off •one judgment against tbe other. Tbe motion was granted at Special Term but tbe General Term reversed tbe order and held that tbe appeal suspended tbe right to set-off one judgment against tbe other. Ve see no distinction between that case and this,

Tbe order appealed from should be affirmed, witb ten dollars •costs and disbursements.

BarNard, P. J., concurred.

Parts of decree of surrogate’s decree appealed from affirmed., •with costs.


author: Dykman, J.: Pratt, J.:

text:
    THEODORE F. BAYLES and JOHN WOOD, Executors, v. SARAH S. HUSTED and Others. THEODORE F. BAYLES v. SAME.

      Subrogation — right of a widow to compel one holding a mortgage on the land of the husband to assign the same to protect her dower.

    The plaintiff, who held four mortgages, executed hy John A. Husted, the husband of the defendant Sarah, threatened after his death to foreclose them-The widow offered to pay the amount due on the mortgages and requested the plaintiff to assign them to a person named by her. He refused to assign them unless she would pay'a claim presented against her late husband, which she disputed and refused to pay. In these actions, brought by him to foreclose the mortgages, the defendant moved for and obtained an order compelling the plaintiff to assign the mortgages to such person as she would designate to receive the same, and directing the discontinuance of the action, without costs.

      Held, that the order was properly made and should be affirmed.
    That it was, under the circumstances of the case, proper to direct that the action, be discontinued, without the payment of interest subsequent to the tender, and. without costs.
    Appeal from an order made at the Dutchess Special Term, and entered in Westchester county, requiring the plaintiff in the above-entitled actions to assign the mortgages, which the actions were-brought to foreclose, to such person as the plaintiff might designate-upon receiving the amount due thereon at the time at which a. tender had been made, and discontinuing the actions, without costs..

      William F. Purdy, for the appellant.

      Henry O. Griffin, for the respondent.
   Dykman, J.:

The plaintiff held four mortgages executed by John A. Husted,. deceased, in his lifetime. The defendant Sarah S. Husted is the widow of John A. Husted, who died intestate, leaving children. After his death the plaintiff threatened foreclosure of the mortgages, and the defendant Sarah S. Husted offered to pay the amount due on the mortgages and requested their assignment by the plaintiff to a person named by her. The assignment was refused unless the defendant would also pay a claim presented by the plaintiff against her late husband, which she disputed and refused to pay. Thereupon these actions were commenced for the foreclosure of the mortgages, and tbe defendant made a motion to compel the plaintiff ■to assign the mortgages to such person as the defendant should designate to receive the same, and discontinue these actions, without costs. The motion was granted and the plaintiff has appealed from the order.

The interest of the defendant in the mortgaged premises, as the widow of the mortgagor, was sufficient to.confer on her the right to retire these mortgages and substitute herself or some other person at her election in the place of the creditor, for the purpose of protecting her own interest in the premises. The right of subrogation is sufficiently broad to comprehend all parties who are obliged to pay to protect their own interest. It must be remembered that this defendant has a vested right of dower in these premises, which is entitled to nourishment and protection to the same extent as any other interest, and the courts will at all times protect the same against impairment and invasion of every description. Originally-applied in behalf of parties occupying the position of surety, the doctrine of subrogation has been much extended until it has come to be applicable to all persons whose property is incumbered for the debt of others. (Barnes v. Mott, 64 N. Y., 397.) The benefit of this doctrine may be invoked by any party compelled to pay the debt of another to save or protect his own property. (Cole v. Malcolm, 66 N. Y., 363.) The relief to which the defendant was entitled was properly extended by motion, and it rested with her to elect whether the assignment of the mortgage should be made to her or to a person in her interest designated by her. The direction for the discontinuance without the payment of interest, subsequent to the tender and without costs, was right and justifiable under all the disclosed circumstances.

The order should be affirmed, with ten dollars costs and disbursements.

Pratt, J.:

The point made by appellant that when the money was tendered no reason was given for requiring the assignment; no information given that Griffin was acting for Mrs. Husted, etc., cannot avail the appellant. Previous negotiation had fully apprised plaintiff of all the facts necessary to be known.

The actions are clearly brought to induce the payment of a claim, the validity of which is disputed, as a condition of allowing the ■mortgage money to remain. . Mrs. Husted was entitled to protect her dower interest by procuring an assignment of the mortgages to a friendly assignee. The interests of the infants are the proper •concern of the court, and appellant’s anxiety for their welfare is no legal reason for refusing to make the assignment demanded.

Order affirmed, with costs.

Order affirmed, with costs and disbursements (in both cases).


text:
    EDWARD SCHNELL, Respondent, v. FREDERICK BLOHM, Appellant.

      Action by a husband for crim. con. — not barred by the recovery of a judgment in a former action for enticing his wife cmay from, him.

    In this action brought against the defendant to recover damages for personal injuries occasioned to the plaintiff by the defendant, in that he had maliciously and wickedly debauched and carnally known the plaintiff’s wife, an order for his arrest was granted.

      Held, that the fact that the plaintiff had, before the commencement of this action, brought another action against the defendant for enticing his wife away from him, and had recovered a judgment therein which had been paid, did not prevent him from maintaining this action.
    Appeal from an order made at the Kings Special Term for the arrest of the defendant, under which he was taken and held in $5,000 bail.
    The action itself was brought to recover damages in the sum of $100,000 for personal injuries sustained by the plaintiff, to wit, for •defendant’s maliciously and wickedly debauching the plaintiff’s wife ■and for carnally knowing her.
    The wrongful acts of the defendant consisted in debauching and carnally knowing plaintiff’s wife, on and between the 17th day of September, 1885, and the thirtieth day of October, next ensuing. On the 20th day of June, 1882, the same plaintiff brought an action against this defendant to recover $50,000 damages which he had sustained in the deprivation of the comfort, society, and aid of his wife, and in the alienation of her affection. The wrongful acts of tthe defendant, out of which this action arose, consisted in maliciously and wrongfully enticing tlie plaintiffs wife from her home, which was accomplished on the 29th day of May, 1882. This action came to trial, and on the 15th day of March, 1883, the plaintiff recovered a judgment against the defendant in the sum of $5,493.06, which was paid. The wife never cohabited with the plaintiff from and after the 29th day of May, 1882, when she left him as aforesaid. On the 28th ffay of May, 1885, the wife of the plaintiff obtained an absolute divorce from him in the State of Iowa, where she then was resident. The plaintiff denied the validity of this divorce. On the 17th day of September, 1885, this defendant intermarried with the plaintiff’s former wife. On the 9th day of October, 1885, this plaintiff brought an action for a divorce absolute from his former wife, in the Supreme Court of this State.
    On the argument of this appeal the defendant claimed, first, that the judgment obtained on the 15th day of March, 1883, was and is a complete satisfaction of the present alleged cause of action. Second. That the divorce obtained in the foreign State, although invalid between the parties to the suit, is nevertheless a defense to any action which the former husband could bring against any third person for the loss of the wife’s society, assistance and affection.

      E. D. McCarty, for the appellant.

      Henry Schmitt, for the respondent.
   Dykman, J.:

The defendant is living in adulterous intercourse with the wife of the plaintiff. It is true the wife procured a divorce in Iowa, and the defendant married her there; but the decree of divorcement has no operation or validity in this State. (O’Dea v. O’Dea, 101 N. Y., 23.)

This action is for criminal conversation, and the defendant appeals from an order of arrest granted against him therein. He contends that the plaintiff’s right to recover for the wrong done him was exhausted by a judgment against him in an action for enticing away the woman, brought and terminated before the divorce and marriage to the defendant.

¥e cannot agree to this proposition. The enticement of a man’s wife from him, and from her home and child, is a wrong of sufficient magnitude, but a fresh sting is imparted to the injury when tbe seducer, in the face of the world, commences an adulterous intercourse. For that new and increased wrong another action may be commenced and another judgment recovered. (3 Black. Com., 139.) Even if the plaintiff’s former recovery had been for the seduction and debauchery of his wife, he could still maintain this action; for every moment that the wife continues absent from her husband without justifiable cause, without his consent, is a new tort, and every one who persuades her to do so does a new injury, and cannot but know it.” (Hutcheson v. Peck, 5 Johns., 205.) The defendant injures the plaintiff anew every day he maintains the unlawful and adulterous intercourse with his wife, and so furnishes a fresh cause of action to the plaintiff with each recurring day.

In our view the reliance of the defendant on the Iowa-decree of divorcement is not well reposed. It was adjudged between the parties that the defendant enticed the plaintiff’s wife from him previous to the divorce and the trip to Iowa. The divorce and the marriage were but the continuance and consummation of the original outrage and wrong.

The order should be affirmed, with ten dollars costs and disbursements.

Barnard, F. J., concurred.

Pratt, J.:

The former recovery for alienating the wife’s affections, though relevant and competent upon the question of damages, do not constitute a bar to the present action. Neither the judgments in plaintiff’s favor nor its satisfaction had any effect to diminish his marital rights. They continued, and on any infringement by defendant or others an action arose.

The Iowa divorce set up in defendant’s papers is not necessarily a defense to the action. It may be attacked, and if successfully assailed its only relevancy will be upon the question of damages. So of the fact that the plaintiff had instituted an action for divorce. That mav well have much weight upon the question of damages, but it is no bar to the action. It follows that the order made below was within the discretion of the court, which we cannot say was unwisely exercised.

Order affirmed, with costs and disbursements.


author: PRATT, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. BENJAMIN ANDREWS, Appellant, v. AARON BRINCKERHOFF, Comptroller of the City of Brooklyn, Respondent.

      OUapt&r 388 of 1884 — eonst'i’uction of

    Chapter 388 of 1884, authorized the comptroller of the city of Brooklyn to pay to the holders of certificates of sales made since the year 1862 for the non-payment of taxes levied, or attempted to he levied, in said city since the year 1861, and which were void by reason of the failure of the assessors of said city to swear to the assessment-roll as required by statute, “the purchase-price appearing upon the face of said certificates, and also the amounts appearing upon the liber of sales in the office of the registrar of arrears of said city on the 1st day of October, 1883, to have been paid by the purchaser or his assigns for taxes, water rates or assessments on account of the pwchase, excepting such as were levied subsequent to the 30th day of June, 1882.”

      Held, that the comptroller was not authorized to pay to the holders of certificates the amount of any taxes, water rents or assessments paid by them for taxes, water rents or assessments which had been levied and were liens upon the property at the time of the purchase of the certificates, although not paid by the purchaser until the purchase was made.
    Appeal from that portion of an order, made at the Kings Special Term, which denied the relator’s demand that a writ of mandamus, issued on his application, command the respondent to refund to the relator certain moneys paid by him for unpaid taxes and assessments for liens earlier than the tax liens for the non-payment of which the premises had been sold to the relator.
    The application was based upon certificates issued to the relator for sales for the taxes of the years 1868 and 1870. He also claimed to be entitled to recover the amounts paid by him after the purchase of those certificates for assessments against the property which had become liens thereon prior to the years 1868 and 1870.

      John Andrews, for the relator, appellant.

      Almet F. Jenlcs, corporation counsel, for the respondent.
   PRATT, J.:

The relator applied for a writ of mandamus to the respondent, the comptroller of the city of Brooklyn, commanding him to pay certain certificates of tax sales under chapter 388 of the Laws of 1884, which reads as follows :

“Sec. 1. The comptroller of the city of Brooklyn is hereby authorized forthwith to pay 'to the holders of certificates of sales made since the year eighteen hundred and sixty-two, for the nonpayment of taxes levied or attempted to be levied in said city since the year eighteen hundred and sixty-one, and which were void by reason of the failure of the assessors of said city to swear to the assessment-rolls as required by statute, the purchase-price appearing upon the face of said certificates, and also the amounts appearing upon the liber of sales, in the office of the registrar of arrears of' said city on the first day of October, eighteen hundred and eighty-three, to have been paid by the purchaser or his assigns for taxes, water rates or assessments, on account of the purchase, excepting-such -as were levied subsequent to the thirtieth day of June, eighteen hundred and eighty-two.”

On this act the application is based and on this act the whole claim of the appellant depends. The sales for which the certificates were issued were for the taxes of 1868 and 1870, respectively. It is perfectly manifest that any payments made by the purchaser for taxes levied prior to the tax for which he had purchased certificates were not paid on account of the purchase. Only such taxes could be paid on account of the purchase as were necessary to be paid in order to protect the title. Any sales for taxes levied prior to 1868 and 1870, respectively, would have been subject to the lien of the relator’s certificates, and any purchaser at any such sale, in order to effectuate his purpose or gain any title or advantage therefrom, would have been bound to redeem from the sales held by the relator. He was, therefore, under no obligation to pay these prior taxes, and if he assumed to do so it was a voluntary payment.. There is no authority given the purchasers to pay prior taxes, and no propriety in his doing so, for his purchase is superior to all the earlier liens.

All the acts of the legislature must be construed together, and under the act above quoted, and chapter 863, Laws of 1873 (tit. 8, § 8, and chap. 63, Laws of 1862, § 29), it is rendered perfectly clear-what taxes the purchaser is authorized to pay and reclaim from the city of Brooklyn. By these acts the purchaser is only authorized to pay taxes levied subsequent to the tax for which the sale was made to him. The vital words of limitation are “ paid on, account of the purchase.” The relator cannot now turn his application for a mandamus into a bill in- equity and seek to recover money voluntarily paid for illegal taxes. In order to warrant the granting-a writ of mandamus the relator must show a clear legal right which,, in this case, he has utterly failed to do.

Order affirmed, with costs.

Present — Barnard, P. J., Dyxman and Peatt, JJ.

Order refusing mandamus affirmed, with costs.


author: Pratt, J. :

text:
    JAMES PRYER, Appellant, v. JOSEPH W. HOWE and CLARENCE F. MOULTON, as Executors and Trustees, etc., of GEORGE P. CLAPP, Deceased, and Others, Respondents.

      Will — when cm equitable action to haw it declared void, will lie —1853, chap. 288, as amended by chap. 316 of 1879.
    Under chapter 238 of 1853, as amended by chapter 316 of 1879, an action in equity will lie by an heir-at-law of a deceased testator to have an alleged will declared null and void, upon the ground that the deceased was not, at the-time of its execution, competent to make a will.
    Appeal from an interlocutory judgment, entered in Westchester county, sustaining a demurrer interposed to the complaint.
    The complaint is a bill in equity on behalf of the plaintiff, as heir-at-law of Desier A. Clapp, who died September 24, 1881, without issue, seized of the premises described in the complaint, leaving a. last will and testament, which was admitted to probate, by which she devised the property in question to her husband George P. Clapp, who dying on the 22d of January, 1884, by his last will and testament, duly proved, in turn devised the property to the defendants Howe and Moulton, as executors and trustees, who accepted the trust. All the other defendants are the other heirs-at-law of Mrs. Clapp, they being made defendants in this action because they have-refused to join with the plaintiff in bringing the same.
    The plaintiff alleges that the will of Mrs. Clapp was obtained by fraud and undue influence; that the same is not the last will and testament of said Desier A. Clapp, and that she was not competent to make a will at the time it was made; and thereupon demands judgment,- declaring the so-called last will and testament of Mrs. Clapp null and void as to the real estate aforesaid, and enjoining the defendants Howe and Moulton, as executors and trustees, from asserting any claim under it, and declaring the plaintiff and the other defendants, as heirs-at-law of Mrs. Clapp, to be seized in fee simple of the premises.
    The defendants, executors and trustees, demurred to the complaint upon the grounds:

      First. That the court has no jurisdiction of the subject of the action.

      Second. -That the complaint does not state facts sufficient to constitute a cause of action — the point of the demurrer being that the complaint shows no ground for jurisdiction in equity, the plaintiff’s remedy being by an ejectment suit. The learned court below so held, declaring that the questions involved were purely legal, having reference only to the estate created by the will of Mrs. Clapp, and that the remedy was at law, where the right of trial by jury may be secured to the parties.

      Joseph S. Wood, for the appellant.

      Joseph H. Choate, for the respondents.
   Pratt, J. :

The appellant concedes that prior to the act of 1853 an action in equity would not lie to declare a will invalid, but he contends that chapter 238 of the Laws of 1853, entitled “ An act relative to disputed wills,” changed the law, and that suitors since that act have, in certain cases, been at liberty to adopt the methods of equity to determine and declare the invalidity of wills affecting real property. The provisions of that act, and the legislation subsequent, seem to sustain the contention óf the appellant.

The intent of the legislature to place at the disposal of a suitor, whose title was clouded by a will apparently valid, but which in fact was fraudulently procured, or which was executed by one not of disposing mind, the methods of courts of equity or law, at his election, seems to be clearly manifested. Nor is it difficult to find a reason for the change. The ingenuity of dishonest men cannot be predicted and measured in advance. Tbe great accumulations of property in recent years, in bands illy fitted to guard inherited fortunes, are a perpetual incentive to tbe dishonest schemes of those who seek to reap where they have not sown. A rude and simple society may find the methods of the common law adequate to unravel the transactions there taking place, but a more artificial and highly organized society develops carefully matured and subtle schemes for dishonest gain, that can only be adequately investigated by the patient methods of equity practice.

We see no reason of public policy requiring a strict or limited construction of the statutes relied upon by the appellant. By their terms the validity of an actual or alleged devise or will of real estate may be determined in like manner as the validity of any deed conveying, or purporting to convey, lands, and thereupon any party may be enjoined from setting up or impeaching said devise as justice may require. Issues may be tried by jury or the court as the nature of the case may require and the court shall direct. The later legislation shows a continuing intent to afford the advantage of the equity courts to contestants of wills.

We see no ground to limit the language of the acts, and must hold that the court is vested with the jurisdiction claimed by the appellant. The jurisdiction of equity to establish wills is not questioned, and the legislature may well ordain that the power to declare a will invalid should be vested in the courts of equity. The complaint alleges that the testator was not competent to make a will. A cause of action is shown, and it is not necessary in order to decide the appeal to consider whether the facts, upon which fraud and undue influences are predicated, should be set out at length.

Judgment reversed and demurrer overruled, with leave to defendants to answer on payment of costs.

BabNAbd, P. J., concurred; DyKjian, J., not sitting.

Judgment reversed and demurrer overruled, with costs, with leave to defendant to answer on payment of costs.


author: Pratt, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN H. MILLARD, Appellant, v. ALFRED C. CHAPIN, Comptroller of the State of New York, Respondent.

      Void tax sales — duty of the comptroller to refund the amount paid — right of the grantee-of the purchasin' to enforce it — 1855, chap. 427.
    At the State tax sale of 1859 a number of parcels of land were struck off to one-Henderson, who assigned bis certificate to one Viele, to whom the property was conveyed by the comptroller. Viele conveyed the lands to one Osborn, and bis widow and heirs conveyed them to the relator. The sale for 1859-being void, the relator applied for a mandamus under chapter 427 of 1855 to-compel the comptroller to refund the amount paid by the purchaser.

      Held, that the conveyance from the purchaser vested in the grantee the right to-recover the purchase-money from the comptroller, and that a mandamus should be granted.
    Appeal by the relator from an order, entered in Dutchess county refusing a peremptory writ of mandamus.

    At the state tax sale of 1859 a number of parcels of land in Erie county were struck off to M. Henderson, who paid the amount of his bids to the comptroller. Henderson assigned his certificate to Maurice E. Yiele, and the comptroller, in 1862, conveyed the lands to Yiele. By a deed of bargain and sale Yiele conveyed the lands to Ogden H. Osborn. Millard (the relator) is the owner of all the interest of Osborn, under conveyance from his widow and heirs-at-law and personal representatives. The sale of 1859 was and is void. The amount paid by Henderson for the parcels not redeemed, with interest to the time of the application, was $721.57. It was claimed that Yiele had conveyed his interests in the premises to one Peck, but his deed had never been recorded. The relator claims that, by virtue of the various conveyances, he is entitled to the amount paid, with interest, and asked for a mandamus against the comptroller, because of his refusal to pay it, for this amount.

      Abram J. Bose, for the appellant.

      D. O’Brien, attorney general, and O. F. Tabor, for the respondent.
   Pratt, J.:

The sale by the comptroller was void, and his deed conveyed no title. The act of 1855 (chap. 4271 was passed to protect purchasers at such sales, and conveyances made since that act should be construed as if containing a covenant to refund to the grantee, his representatives' and assigns, in event of failure of title, the purchase-money with interest at seven per cent. The principal question to be considered is whether the deed from Yiele and wife to Osborn carried with it the right to receive and demand the money that had been paid to the comptroller on the purchase. The question is by no means free from difficult y, but' we think that under the decisions it must be held that the conveyance, failing to transfer the title to the land, vested in the grantee the right to recover the purchase-money from the comptroller. (Jackson v. Bowen, 7 Cow., 13; Robinson v. Ryan, 25 N. Y., 320; Klock v. Buell, 56 Barb., 398; Danforth v. Suydam, 4 N. Y., 66.)

The deed was recorded in the proper county and was notice of the rights of the grantee. The conveyance was also brought to the actual notice of the comptroller, who refunded to Osborn the purchase-money of one of the parcels conveyed. The alleged conveyance to Peck was not recorded, and if it was made, as alleged in the affidavit of Yiele, the Osborn title gained priority by virtue of the record.

It follows from these views that the order of the Special Term should be reversed and a mandamus granted, as prayed for in the petition.

DriaiAN, J., concurred; BaeNaed, P. J., not sitting.

Order refusing mcmdamus reversed and mcmdamus granted, with costs.


text:
    In the Matter of the Probate of the Will of WILLIAM H. NICHOLS, Deceased.

      Lost wül — presumption as to its destruction by the testator.

    Where a will, which was last seen in the possession of the testator, cannot be found after his death, the legal presumption is that he destroyed it for the purpose of revocation.

      Appeal from a decree of the surrogate of Queens county, admitting to probate what purports to be the lost or destroyed will of WiHiam H. Nichols.

      James W. Covert, for Leonora Allen, contestant, appellant.

      J. M. & T. B. Seaman, for proponent, respondent.
   Pratt, J.:

This is an appeal from a decree of the surrogate of Queens county, admitting to probate, what purports to be the lost or destroyed will of William H. Nichols, late of said county, deceased.

On the death of William H. Nichols no original, paper, such as the one admitted to probate, was found, but the proponent John H. Baldwin annexed to his petition what purported to be a copy thereof and which is the paper admitted. This copy appears to have been made not from any original paper, but from what purports to be an incomplete copy of the original, written before any will was made, and was given to proponent by Thomas D. Smith some time after testator’s death. The paper admitted as the will of William H. Nichols is dated November 27, 1884. It was drawn by Thomas D. Smith, one of the witnesses to its execution. The paper drawn by Smith was signed by William H. Nichols at the house of Smith, and Mr. Nichols put it in his pocket and took it away with him. The testator had been a justice of the peace, and he kept in the sitting room of his home a desk in which he kept various papers. On the day of his death John H. Baldwin made a search of the papers in this desk and found a large yellow envelope sealed and indorsed with the words “last will and testament of William H. Nichols.” This envelope, on being opened, was found to contain a will made by William H. Nichols on November 14, 1877; and also found inclosed in an open white envelope a will of Margaret Nichols and a portion of a draft of a will, but the instrument admitted was not found, nor any copy of it. Some evidence was given tending to show that the only persons who had access to the desk where the will was kept were Leonora Allen, who was a granddaughter and . an heir-at-law, and her husband and Emily Allen, and that the interest of said Leonora Allen was adverse to the provisions of the will admitted to probate.

"We think, upon the evidence taken before the surrogate, the proponent failed to make out a ease entitling himself to a decree admitting the will to probate. The statute provides that no will of anj testator, who shall die after this chapter shall take effect as a law, shall be allowed to be proved as a lost or destroyed will, unless the same shall be proved to have been in existence at the time of the death of the testator, or be shown to have been fraudulently destroyed in the lifetime of the testator.” (3 Rev. Stat. [5th ed.], 144.) The case of Knapp v. Knapp (10 N. Y., 276) is decisive of this case. At the time the will was executed it was delivered to the testator, and it continued, so far as appears from the evidence, in his custody until it was destroyed. TJp to the time of the death of the testator he had access to the desk where all his papers were kept, and no person is shown to have had possession of the alleged will, or to have interfered in any manner with his papers. On the other hand there is evidence tending to show an intention favorable to Leonora Allen, inconsistent with the provisions contained in said will. The legal presumption, where a will is last seen in the possession of the testator, in case it cannot be found, is that he destroyed it for the purpose of revocation. (Idley v. Bowen, 11 Wend., 227; Betts v. Jackson, 6 id., 173; Holland v. Ferris, 2 Bradf., 334, and Knapp v. Knapp, before cited.)

There is not sufficient proof in this case to overthrow that presumption and the decree must be reversed and matter sent back to the surrogate, with costs to appellant to be paid out of the estate.

Present — Baenaed, P. Jl, Dykman and Peatt, JIT.

Decree of surrogate reversed, with costs to appellant out of the estate.


text:
    WILLIAM KERRIGAN, Appellant, v. CHARLES HART, Respondent.

      Ditty of a master to provide safe machinery for the use of his servant — he is not liable unless the defect in it is the primany cause of the injury.

    The plaintiff was employed hy the defendant as a laborer to shovel dirt into carts, which were backed up near to an embankment, the plaintiff being stationed between the tail of the cart and the bank which was being removed. While a cart was being filled tbe horse threw his head around to his side and a rein or some part of the bridle caught upon the hook attached to the saddle, which cramped his head to one side and caused him to back, by which act the cart was run against the plaintiff, squeezing him between the cart and the'embankment. In this action brought to recover damages for the injuries so sustained, it was claimed that the hook was improperly constructed and placed and by reason thereof the injury was caused.

      Meld, that the defect in the hook was not the primary cause of the injury and that the plaintiff was properly nonsuited.
    Appeal from a judgment in favor of tbe defendant, entered in Kings county upon an order dismissing tbe complaint, made at tbe close of tbe plaintiff’s case.

      C. J. Patterson, for tbe appellant.

      Johnson & Lamb, for tbe respondent.
   Pratt, J. :

Tbe plaintiff was employed by tbe defendant as a laborer to shovel db't into carts which were backed up near to an embankment, tbe plaintiff being stationed between tbe tail of tbe cart and the bank which was being removed.

It seems that while a cart was being filled tbe horse threw bis bead around to bis side and a rein or some pai’t of tbe bridle caught upon tbe book attached to tbe saddle, which cramped bis bead to one side and caused him to back by which tbe cart was run against the plaintiff and squeezed him between tbe cart and the embankment. Tbe claim of tbe plaintiff is, that tbe book was improperly constructed and placed and that by reason thereof be was injured and that defendant was liable therefor.

It is to be observed that tbe structure of tbe book was not tbe primary cause of the injury. Tbe accident happened because tbe horse backed and at tbe same time tbe plaintiff was directly behind the cart, and immediately behind him was a solid perpendicular bank preventing bis escape.

Assuming tbe book was not properly made it is clear that tbe defect was not the proximate cause of the injury. Observing tbe hook no man could reasonably have inferred that such an accident would happen. It could not be said and a jury would not be permitted to say, after an accident has happened, that leaving a book in that way would be liable to produce such an injury. A person cannot be charged with negligence for an act against which human foresight could not guard. The basis of all actions for negligence is for the omission of some duty which would be likely to produce •-the injury. No human foresight could anticipate that a horse would throw his head around so far as to catch his bridle upon this hook and back straight back and squeeze a man against a bank. That such a thing is possible is proved by the happening of the accident in this case, but that such a thing was probable or likely to occur is absurd.

The principle of law applicable is that which holds that a man is responsible only for the probable and natural consequences of even a negligent act. (Scott v. Sheperd, 2 Smith Leading Cases, 800; Carter v. Towne, 103 Mass., 507.) But there was no sufficient proof to show that the hook was not entirely safe and proper for the use intended to be made thereof. An employer does not undertake absolutely with his employees for sufficiency or safety of the implements and facilities furnished for their work, but only for the exercise of reasonable care in that respect. (Fuller v. Jewett, 80 N. Y., 46; 36 Am. R., 575.)

En this case the defendant did not make the hook and there is no proof .that he had any notice of any defect, nor is there any proof that he omitted the exercise of proper care to discover any defect.

We are of opinion that the proof upon the trial utterly failed at every point to make out a case proper to be submitted to a jury. After an accident has happened a jury will not be permitted to speculate upon the question of defendant’s negligence unless there is some proof in the case from which such negligence may be inferred. In this case there is no pro3f of a failure to exercise reasonable care upon the part of the defendant.

We have examined the exceptions taken on the trial and find no error sufficient to warrant a granting of a new trial.

The judgment should be affirmed, with costs.

Present — Barnard, P. J., JDyemaN and Pratt, JJ.

Judgment affirmed, with costs. •


text:
    JOHN A. LESLIE, Respondent, v. JACOB LORILLARD and THE LORILLARD STEAMSHIP COMPANY, Appellants, Impleaded, etc.

      Agreement by a corporation not to exercise its franchises — when illegal — right of a stockholder to maintain an action to haw it declared void.

    The plaintiff, a stockholder of the Old Dominion Steamship Company, brought this action against Jacob Lorillard, the Lorillard Steamship Company and the Old Dominion Steamship Company, to restrain the latter from paying to , the Lorillard Steamship Company certain sums of money which were agreed to be paid under a certain agreement entered into between the two companies, by which the Lorillard Steamship Company agreed not to enter into competition with the Dominion Steamship Company upon one of the routes of the latter company; which agreement the plaintiff claimed was illegal and void.

      Held, that as it appeared that the money was to be paid to induce the Lorillard company to cease to exercise its franchises the agreement was illegal and void; and that as the Old Dominion Steamship Company had refused to bring the action when requested by the plaintiff he, as a stockholder thereof, might maintain it.
    Appeal by tbe defendants Jacob Lorillard and the Lorillard Steamship Company from an interlocutory judgment, entered in ’Westchester county, overruling a demurrer to the complaint interposed by said defendants.
    This action was brought by the plaintiff, a stockholder of the Old Dominion Steamship Company of Delaware, for himself and all other stockholders of that company, who shall come in, to restrain said company from making any payments to Jacob Lorillard under a contract executed by all the defendants, a copy of which was annexed to the complaint, and to restrain the prosecution of an action begun by said Lorillard against said company to recover the amounts provided to be paid in said contract, to obtain judgment that the contract be canceled and adjudged null and void, and that Jacob Lorillard pay to that company the money which he has received under the contract. Before the action was commenced the plaintiff requested the Old Dominion Steamship Company of Delaware-to bring the action, but it refused to do so.

      In 1873, the defendant, the Old Dominion Steamship of New York, a New York corporation, was engaged in running a line of steamships between the ports of New York, Norfolk, City Point and Richmond. In the spring and summer of that year the defendant Jacob Lorillard, who was the president of the defendant, the Lorillard Steamship Company, and had entire control of it, the other directors (except one, who was his brother-in-law) being his clerks and employees, for the purpose of extorting money from the defendant, the Old Dominion Steamship Company of New York, stated to its officers that the Lorillard Steamship Company intended to put on and run a line of steamships between the ports above mentioned in opposition to the steamships of the Old Dominion Steamship Company, and to deceive the officers of that company and cause them to believe that a formidable opposition would be established against that company, Mr. Lorillard caused the Lorillard Steamship Company to lease docks at Norfolk and other places, and to hire agents and servants at different points; and in the month of October, 1873, he caused the Lorillard Steamship Company to put on and run a line of steamships between those ports in opposition to the Old Dominion Steamship Company; these ships were run at a positive pecuniary loss to the Lorillard Steamship Company,which had no means wherewith to continue running them, and Mr. Lorillard advanced the money for that purpose. Mr. Lorillard continued to run these ships at a loss until the latter part of January, 1874, when he was successful in deceiving the officers of the Old Dominion Company, who believed that a powerful opposition line had been started; and for the purpose of inducing Lorillard to withdraw the ships, the Old Dominion Steamship Company of New York entered into an agreement with him and the Lorillard Steamship Company, a copy of which is annexed to the complaint, by which it agreed to pay Mr. Lorillard $1,500 a month for ten years from the first day of ^February, 1874, so long as there should be no opposition to its ships by sea, between said ports.
    In 1875 the defendant, the Old Dominion Steamship Company of Delaware, was organized, and succeeded to the business of the New York company of that name, became^ vested with all its property, which was duly conveyed and assigned to it by that company, and subject to its liabilities and contracts, and from its organization, in February, 1875, until about the 1st day of February, 1878, paid to Jacob Lorillard $1,500 a month, under the provisions of said agreement, which payments amounted to $54,000. Disputes having arisen between Lorillard and this new company, a new contract, annexed to the complaint, was executed by all the defendants on October 29, 1878, by which the first contract was modified, and the Old Dominion Steamship ■Company of Delaware agreed, in consideration of Jacob Lorillard and the Lorillard Steamship Company releasing it from liability under the first contract and agreeing not to run any opposition line between said ports, to pay to Jacob Lorillard $12,000 on the execution of the contract, $1,500 on November 1, 1878, $1,500 on December 1,1878, $1,500 on January 1,1879, and a monthly subsidy •of $750, “so long as there shall be no opposition line of steamships between the ports or places aforesaid, but not exceeding, however, the period of five years from the 1st day of February, 1879.” The complaint after setting forth these facts, and that the defendant Lorillard had already received large sums of money under the agreements, and all except $21,750 provided to be paid by the second contract, and that the plaintiff was advised- that the contracts set forth are illegal and not within the scope of the powers and purposes for which the Old Dominion Steamship Company of New York, or the Old Dominion Steamship Company of Delaware, or ■either of them, were formed, or do not arise therefrom, or relate •thereto, and that all payments made under them to Jacob Lorillard were without authority of law, and that the plaintiff had requested the Old Dominion Steamship Company of Delaware to pay no more money to said Jacob Lorillard, under said second contract, and to ■commence an action to procure the cancellation of said contract, and to recover the money paid thereunder, and that the company refused to do so, demands the judgment above stated. To this complaint the defendants Jacob Lorillard and the Lorillard Steamship Company demur upon the grounds that the court has not jurisdiction of the subject of the action ; that the plaintiff had not legal capacity to sue; that two causes of action, one under the first agreement, and one under the second agreement were improperly united, and that the facts stated did not constitute a cause of action.

      Asa Bird Gardiner and Jdóbert L. Beade, for the appellants.

      Thomas S. Moore, for the respondent.
   Pratt, J.:

In form the contract mentioned in the complaint binds the Old Dominion Steamship Company, Delaware, to pay the Lorillard ■Steamship Company $12,000 as a lump sum, together with $750 per month. The monthly sum is the agreed price to be paid to induce the Lorillard company to cease to exercise its franchises, ■and that company agrees to cease to exercise its franchises in consideration of that sum. The $12,000 is an aggregate made up of various sums which, in form, accrued for like considerations under a former contract made with like intent and imposing like obligations.

I think the contracts were illegal and ultra vires. These companies were organized under laws which contemplate a public benefit to be derived from the exercise of their powers in a public service, and this contract is in plain violation of the object of their incorporation as well as against public policy. It would, therefore, seem plain that the Delaware company has contracted to pay, and has paid, large sums of money for illegal purposes, and threatens to continue the wrong. The complaint, therefore, makes a plain case of accomplished waste and threatened waste. The plaintiff, being a stockholder of the company whose funds have been thus wasted and which are threatened with like wrongs, is injured and deprived of his just rights. It was the duty of his company to cease this wrong. It has refused to do its duty. Plaintiff has requested it to sue to cancel the contract. It has been sued by the Lorillard company upon these illegal claims and refused to interpose any defense, although plaintiff has requested it to make such defense. This gives plaintiff the right to intervene for the protection of his own rights and those of persons in like situation. Indeed, within the recent case of Currier v. New York, West Shore and Buffalo Railroad Company, recently decided in this department (35 Hun, 355), I fail to see why any demand was even necessary. The allega tions show that it would have been an idle ceremony. So far, therefore, as the demurrer raises the questions of a cause of action and plaintiff’s standing I think it sbonld be overruled. I fail to find any merit in tbe other grounds of demurrer.

Judgment should be affirmed, with costs.

BaRNAed, P. J., concurred-; DteMAN, J., not sitting.

Order overruling defendant’s demurrer and judgment thereon affirmed, with costs.


author: Parker, J.:

text:
    EDGAR H. VANDEMARK, Appellant, v. IRA PORTER and WESTCOTT PORTER, Respondents.

      Highway — what facts show a dedication and acceptance thereof — 1 B. 8., 520, sec. 99 — the failure to open and work one part of a highway does not prevent another pa/rt opened from remaining a highway.

    For more than, thirty years a road, running from a road known as Hall’s road to the defendant’s house, had been opened and worked so as to make it passable for heavy and light loads, and had been used by such of the public as had occasion to do so. In 1854 the commissioners of highways made an order laying out a road from the Seaman road to the Hall road; the defendant’s house was situated on this road, thus laid out, which from the defendant’s house to the Hall road followed the road theretofore used, and this portion of the road, thus laid out, was opened and was placed in a road district and worked, the adjoining owners being assessed for the expenses incurred in so doing, while that portion of the road lying between the defendant’s house and the Seaman road was never opened or used.

      Held, that these acts showed a dedication of the land, and an acceptance thereof by the public authorities, sufficient to make the road from the defendant’s house to the Hall road a public highway.

      It seems, that section 99 of 1 Revised Statutes, 520, providing that every public highway that shall not be opened and worked within six years from the time of its being so laid out, shall cease to be a road for any purpose whatever, does not require the road to be opened and worked throughout, and that a failure to open and work a portion thereof would not prevent so much thereof as had been actually opened and worked, placed in a highway district and used by the public, from remaining a public highway. (Per Parker, J.)

      Beckwith v. Whalen (70 ÍT. Y., 430).

      Appeal from a judgment in favor of the defendants, entered in. Sullivan county on the report of a referee.
    The action was originally brought in a Justice’s Court, and came-into this court on a plea of title. The action was for trespass in cutting timber. The defense was, that the acts complained of were-performed by defendants in removing obstructions from a public highway; and the only question in dispute was, whether the locus-in quo was a public highway. The referee found that the locus in quo was and is a public highway; and the defendants had judgment,, dismissing the complaint and for costs.

      John Q. Gray, for the appellant.

      R. R. Jelliff, for the respondents.
   Parker, J.:

Was the locus in quo a public highway at the time of the commencement of the action, is the question presented by this appeals

For more than thirty years there has been in existence the road which the defendants claimed to be a public highway. It extended from what is known as the Hail road to-the house of the defendant, a portion thereof being upon the lands of the plaintiff. The-road was used to draw logs, lumber, etc., over, and light wagons and sleighs were run over it by persons going to and from the lands of both plaintiff and defendant, and also by themselves.

It is very clear that it was not a good road, but it was passable- and witnesses testified that it is equal to the average mountain thoroughfare. In 1854 the majority of the commissioners of highways of the town of Neversink made an order laying out a road from the Seaman road to the Hall road, and while there appears to-be some difficulty in locating a road according to the survey, the-evidence seems to justify the finding of the referee, that from the-house of the defendant to the Hall road, the highway so laid out and surveyed was opened and worked, while from the house of the-defendant to the Seaman road it was never opened or worked.

In 1855 the road was placed in a road district by the commissioner of highways and described as District No. 22. Subsequently an-overseer was appointed by such district, and the adjoining owners were assessed for highway labor thereon, which practice continued. tip to the time of the commencement of this action. The order-laying out the highway was regular on its face, but the plaintiff claims that it ceased to be a public road for any purpose whatever,, because not opened and worked throughout its entire length within six years from the date of the order. The Revised Statutes provide,, among other matters not pertinent here, that every public highway laid out, or thereafter laid out that shall not have been opened and. worked within six years from the time of its being so laid out, and every such highway hereafter to be laid out that shall not be-opened and worked within the like period, shall cease to be a road for any purpose whatever.” (1 R. S., 520, § 99.) About one-half of the length of the road as laid out was opened and worked so as to become passable for teams, and was placed in a road district, and the owners of adjoining lands have been annually assessed for highway labor thereon. The other half has never been either opened or worked within the meaning of the statute.

Beckwith et al v. Whalen (70 N. Y., 430) was an action brought by the town of Brighton to compel the adjoining town of Penfield to pay one-half of the expense of building a bridge over a stream dividing such towns. It appeared that while a portion of the road as laid out by the commissioners had been opened and worked, yet that portion of the road which was next to the stream had not been made passable for teams within the time prescribed by statute, and the court held that when the bridge was built there was no lawful, highway with which it was connected, but further said : “ It is not material to determine whether the road is to be regarded as an entirety, and hence, unless opened and worked throughout, that the whole road would cease, or whether that part which had been opened and worked would remain a highway.''- It seems to be reasonably clear that the failure to open and work a portion of a highway would not invalidate so much thereof as had been opened and worked in compliance with the statute, subsequently placed in a highway district by the commissioners of highways and thereafter used by the public.

As that question has not been heretofore passed upon, and the Court of Appeals, in the case above cited, left it an open question, it is proper to ascertain whether or not there is any other ground upon which the learned referee was justified in holding that the premises in question constituted a public highway. The road, as worked and traveled, extends from the Hall road to the Porter House, a distance of a little over three-quarters of a mile, and is, therefore, a cul de sac. It is well established that a cul de sac may become a public highway by dedication, or by being laid out by commissioners of highways, under the statute. (The People ex rel. Van Rensselaer v. Van Alstyne, 3 Abb. Ct. of App. Dec., 575; People ex rel. Williams v. Kingman, 24 N. Y., 559; Wiggins v. Tallmadge, 11 Barb., 457.)

It being established that a cul de sac may become a highway by dedication and acceptance, it requires but a brief examination of the acts of the parties and the public authorities relating to this road to reach a conclusion that a public highway was thus established in this instance. To constitute a public highway by dedication there must be an unequivocal act of dedication and an acceptance by the public authorities. (Wiggins v. Tallmadge, 11 Barb., 457; Trustees of Jordan v. Otis, 37 id., 50; Chapman v. Swan, 65 id., 210.) It is not essential that the dedication be in writing; it may be done by an act in pais as well as by deed. (Thomp. on Highways, 53; Marble v. Whitney, 28 N. Y., 297.)

Over ten years before the making Of the order, and which was made in 1854, the owners of the premisés through which this road runs opened the road from the Hall road to the Porter place where it is now located, worked it so as to make it passable for heavy and light loads, and thereafter they and such of the public as had occasion to do so used it. In 1854 the occupants of the premises acquiesced in the action of the commissioners in laying out and recording the road as a public highway. After 1854 it was placed in a road district, highway labor assessed thereon, and one of the owners was for many years overseer of the road district. These acts on the part of the owners demonstrate conclusively an intent to dedicate the lands to the public for the purposes of a highway. An acceptance of the highway by the public may be by long public use or by the positive acts of the public authorities in recognizing and adopting the highway. (Cook v. Harris, 61 N. Y., 448.) In the same case it is held that the dedication and acceptance may both occur on a single day.

In this case, after the road had been opened, worked and used for a period of ten years, the commissioners of highways made the order laying out and recording a highway. True, they extended the road about three-quarters of a mile, but the order, beyond question, was an acceptance by the public authorities of the road already dedicated to the public. Subsequently the commissioners districted the road and assessed highway labor thereon, and appointed an overseer for said district each year, down to the time of the commencement of this action. Under all of the authorities here was^clearly an acceptance by the public authorities. There was no act which the statute authorizes which was left undone in this case. Even though the commissioners of highways had taken no action in the matter, still an acceptance by the public is made out. A user by the public for more than twenty years constitutes an acceptance and establishes a highway. (2 R. S. [7th ed.], 1249, § 100; Wiggins v. Tallmadge, 11 Barb., 457.) Beyond dispute this road has been used by the public for a much longer period than twenty years. It follows that the referee was right in holding that the locus in quo is a public highway.

The judgment should be affirmed, with costs.

LbaeNed, P. J., and Bocees, J., concurred.

Judgment affirmed, with costs.