text:
    John Konvalinka et al., Ex’rs, etc., of George Schlegel, deceased, Applt’s, v. George Schlegel, Impleaded with others, Appl’ts., and Maria Schlegel, widow, Resp’t.

      (Court of Appeals,

      Filed January 18, 1887.)
    1. Will — Construction — Dower—When widow entitled to.
    Where the will of testator after directing the payment of his debts and funeral expenses and the disposition of his household furniture proceeded as follows: “All the rest residue and remainder of my estate, property and effects of every nature, kind and description, I give, devise and bequeath to my executors and executrix hereinafter named and I authorize and direct them to sell and dispose of the same at such time and on such terms as to them shall seem best, and to divide the proceeds thereof equally among my wife and children, share and share alike ” Held, that the widow was not put to her election but was entitled to her dower and her share under the will.
    2. Same — Election — When widow put to hee election.
    Dower is never excluded by a provision for a wife except by express words or by necessary implication. When thei'e are no express words, there must be upon the face of the will a demonstration of intention of the testator, that the widow shall not take both dower and the provision. The only sufficient and adequate demonstration which in the absence of express words will put the widow to her election is a clear incompatibility arising on the face of the will between a claim of dower and a claim to the benefit given by the will.
    3. Same — Power in trust to sell land.

      Held, that the devise to the executors was void as a trust but valid as a power in trust for sale of the land and a division of the proceeds. That powers of or in trust for sale are not inconsistent with the widow’s right to dower, and that there is no legal difficulty in the trustee executing the power of sale but the sale will be subject to the widow’s right of dower.
    4. Same — General rule as to devise of lands on trust to sell, etc.
    A devise of lands eo nomine upon the trust for sale or a devise of lands eo nomine to a devisee beneficially does not per se express an intention to devise the lands otherwise than subject to its legal incidents, dower included.
    5. Same — Meaning of a devise of “ all his property.”
    Where the testator gives “all his property” to the trustee he cannot ba assumed to give the widow’s dower which he has not, to said trustee.
    Appeal from a judgment of the supreme court, general term, second department, affirming a judgment in favor of the defendant, Maria Schlegel, widow of George Schlegel, entered at a-special term, held in King’s county, upon a trial of the action brought to obtain a judicial construction of the will of George Schlegel, deceased.

      John W. Konvalinha, for plffs, appl’ts; Iienry Me Closkey, for infant deft’s ; W. JE. Cfrover, for adult children, applt’s; Greorge Bliss, for resp’t.

      . Affirming 39 Hun, 451.

   Andrews, J.

The question is whether the widow of the testator is put up to her election between dower and the provision in the will. The estate of the testator consisted of both real and personal property. The will, after directing the payment of the testator’s debts and funeral expenses, and after giving to his wife the bedroom furniture in his dwelling-house, and to his children the rest of the furniture therein, proceeds as follows: “All the rest, residue and remainder of my estate, property and effects of every nature, kind and description, I give, devise and bequeath to my executors and executrix hereinafter named, and I authorize and direct them to sell and dispose of the same at su<?h time and on such terms as to them shall seem best, and to divide the proceeds thereof equally among my wife and children, share and share alike.”

There can be no controversy as to the general principles governing the question of election between dower and a provision for the widow in the will. Dower is favored. It is never excluded by a provision for a wife, except by express words or by neces.sary implication. Where there are no express words, there must be upon the face of the will a demonstration of the intention of the testator, that the widow shall not take both dower and the provision. The will furnishes this demonstration only when it clearly appears without ambiguity or doubt, that, to permit the widow to claim both dower and the provision would interfere Avith the other dispositions and disturb the scheme of the testator as manifested by his will. The intention of the testator to put the wido w to an election cannot be inferred from the extent of the provision, or because she is devisee under the will for life or in fee, or because it may seem to the court that to permit the Avidowto claim both the provision and dower would be unjust as a family arrangement, or even because it may be inferred or believed, in view of all the circumstances, that if the attention of the testator had been drawn to the subject, he would have expressly excluded dower. We repeat, the only sufficient and adequate demonstration which, in the absence of express words, will put the widow to her election, is a clear incompatibility arising on the face of the will, between a claim of dower and a claim to the benefit given by the will. We cite a few of the cases in this state, showing the general principle and the wide range of application. Adsit v. Adsit. 2 Johns, Ch. 452; Sanford v. Jackson, 10 Paige, 266: Church v. Bull, 2 Den., 430; Lewis v. Smith, 9 N. Y. 502; Fuller v. Yates, 8 Paige, 325; Havens v. Havens, 7 Sandf., Ch. 331; Wood v. Wood, 5 Paige, 599.

In view of these settled rules, Ave think the widow in this case was not put to her election. The devise to the executors was void as a trust, but valid as a power in trust, for the sale of the lands and a division of the proceeds, and the iands descended to the heirs of the testator, subject to the execution of the power. 1 Rev. Stat. 729, § 56; Cooke v. Platt, 98 N. Y. 35. It is strenuously urged that the power of sale being peremptory, it worked an equitable conversion of the land into personalty, as of the time of the testator’s death, and created a trust in the executors in the proceeds for the purpose of distribution, which trust, it is alleged, is inconsistent with a claim of dower. The doctrine of equitable conversion, as the phrase implies, is a fiction of equity which is frequently applied to solve questions as to the validity of trusts ; to determine the legal character of the interests of beneficiaries ; the devolution of property as between real and. personal representatives, and for other purposes. It seems to be supposed that there is a necessary repugnancy between the existence of a trust in real property created by a will, and an outstanding dower interest of a widow in the trust property. We perceive no foundation for this contention. If the purposes of a trust,, as declared, require that the entire title, free from the dower interest of the widow, should be vested in the trustees in order to effectuate the purposes of the testator in creating it, a clear case for an election is presented. But the mere creation of a trust for the sale of real property, and its distribution, is not inconsistent, with the existence of a dower interest in the same property. There is no legal difficulty in the trustee executing the power of sale, but the sale will necessarily be subject to the widow’s-right of dower, as it would be subject to any outstanding interest in a third person, paramount to that of the trustee.

In the cases of Savage v. Burnham, 17 N. Y., 577, and Tobias v. Ketcham, 32 id. 327, the widow was put to her election, not because the vesting of the title in trustees was per se inconsistent, with a claim for dower, but for the reason that the will made a disposition of the income, and contained other provisions which would be in part defeated if dower was insisted upon. There is language in the latter case, which, disconnected with the context, may give color to the contention of the appellant. But it is the principle upon which adjudged cases proceed which is mainly to be looked to, because a correct principle is sometimes misapplied. There is, however, no ground for misapprehension of the meaning of the learned judge, in that case, interpreting his language with reference to facts then under consideration.

It has frequently been declared that powers of or in trust for sale are not inconsistent with the widow’s right or dower. Gibson v. Gibson, 17 Eng. Law and Eq., 349; Bending v. Bending, 3 Kay and J., 257; Adsit v. Adsit, supra; In re Fraser, 92 N. Y., 239. And it was held in Wood v. Wood, 5 Paige, 596, that the widow was not put to her election, where the testator devised all his property to trustees, with a peremptory power of sale, and directed the payment to the widow of an annuity out of the converted fund. The same conclusion was reached, under very similar circumstances, in Fuller v. Yates, 8 Paige, 325; and In re Frazer, supra, the widow’s dower was held not to be-excluded by a provision in the will, although as to a portion of the realty the power of sale given to the executors was peremptory.

The general doctrine is very clearly stated by the vice-chancellor in Ellis v. Lewis, 3 Hare, 310; “ I take the law to be clearly settled at this day that a devise of lands eo nominee upon trusts for sale, or a devise of lands eo nominee to a devisee beneficially, does not, per se, express an intention to devise the lands otherwise than subject to its legal incidents, dower included.” This remark of the vice-chancellor also answers the claim that the testator, when he described as the subject of the dower “ all the rest, residue, and remainder of my estate,” meant the entire title, or the estate as enjoyed by him. A similar argument was answered by Lord Thurloav in Foster v. Cooke, 3 Brown, Ch. 347. “ Because,” he said, “ the testator gives all his property to the trustees, I am to gather, from his having given all he has, that he has given that which he has not.”

The argument that the testator intended equality of division between his wife and children is also answered by the same consideration. The proceeds of the testator’s estate were by the will to be equally distributed. It left untouched the dower of the widow, which he could not sell or authorize to be sold, and which was a legal right not derived from him, and paramount to all others. It may be conjectured, perhaps reasonably inferred, that the testator really intended the provision for his wife to be exclusive of any other interest, but so it is not Avritten in the Avill, and Ave are not permitted to yield any force to the suggestion. It is a question of legal interpretation, which has been settled.

The judgment should therefore be affirmed.

All concur.


source: Caselaw Access Project

author: Danforth, J.

license: Public Domain

text:
    James H. Truesdell, Heir-at-Law and Executor of Darius Truesdell, deceased, Resp’t, v. Henry J. Sarles, Appl’t.

      (Court of Appeals,

      Filed January 18, 1887.)
    1. Judgment — Moetgage — Coubt no authority to change deed into— CREDITOR'S ACTION.
    In a creditor’s action brought by plaintiff to set aside a conveyance of real estate by the judgment debtor to bis wife, tbe complaint averred that the conveyance was granted by the debtor in favor of his wife Avithout consideration, with the sole purpose and intent to hinder, delay and defraud creditors and demanded that the conveyance be canceled of record and the judgment declared a lien upon the property. The evidence showed that the deed was upon the actual consideration of $ 1,000 expressed therein, and was made Avith no intent to defraud any creditor, but in good faith: Field, that a judgment declaring that the deed should stand “asa mortgage security in the sum of §1,000,” and that subject to it, the plaintiff’s judgment should be a lien upon the property is not within the relief prayed for in the complaint, and is erroneous; that it in effect affirmed the validity of the conveyance to the wife so far as she was concerned, and that there was no authority for changing her deed into a mortgage. Ruger, Ch. J., and Earl J., dissenting.
    Appeal from a judgment of the supreme court, general term, second department, modifying, and affirming as modified, a judgment of the Westchester county special term, in favor of the plaintiff, Avhich judgment set aside a conveyance as in fraud of the rights of creditors.

      Francis Larkin with John Gfidney, for applt’s ; William Gr. Valentine, for respt’s.

         Reversing, 38 Hun, 612 mem.

   Danforth, J.

This is a contest, between the plaintiff, as executor of one Darius Truesclell, a judgment creditor of Henry J. Sarles, with execution issued and returned unsatisfied, on one-side, and tbe debtor and bis wife, Adaline, on tbe other, concerning tbe title to certain real estate, conveyed to her through one Gidney, as an intermediary. Tbe complaint shows that the judgment was recovered October 19, 1881, in an action commenced August 17, 1881, upon an account for goods; that Henry J. Sarles acquired title to the premises in question in 1871, and his deed to Gidney and that from Gidney to Adaline were given June 7, and recorded June 20, 1877, without consideration, with the sole purpose and intent to hinder, delay and defraud creditors, and with notice to Adaline of her husband’s indebtedness to the plaintiff and other persons; but she nevertheless holds the legal title, and claims “ to be the owner of the real estate in her own right.” The plaintiff asks judgment that the conveyances be cancelled of record, as fraudulent and void as to creditors of Henry J. Sarles; that the real estate described in them be declared to be his property and the judgment a lien upon it.

The defendant Adaline, by answer, put in issue the allegations of the complaint, and alleged that the deed to her was upon the actual consideration of $1,000, as expressed therein, and made-for the purpose of conveying to her the legal title, with no intent to defraud any creditor or other person, but in good faith. The answer of Henry J. Sarles, so far as any question here is. concerned, was in substance the same.

The learned trial judge found that, when conveyed to Ada-line, the premises were subject to a mortgage of $1,000, and, so far from finding that she paid no consideration, he found that the-conveyance to her was for the consideration set up in her deed and answer, and, instead of directing the cancellation of the deed as void, declared that it should stand “ as a mortgage security in the sum of $1,000; ” but that, subject to it, the plaintiff’s judgment should be a lien upon 'the property, and rendered judgment accordingly, with costs to be recovered of Adaline and Henry J. Sarles. Upon appeal the general term held that it was justly found that the conveyance was a mortgage, but, as Adaline had maintained her defense, she should not pay costs, but, on the other hand, have her claim established at $1,000, with interest from April 1, 1872, with costs of the action, and so modified, and then affirmed the judgment of special term.

We think the circumstances of the case required the general term to go further, and reverse, rather than modify, the decision of the trial judge. Upon the issues formed by the pleadings, the question was whether the evidence disclosed fraud, either in fact or law, sufficient, as against Adaline Sarles, to set aside the deed under which she claimed title. This was the only available ground of relief, and the burden of proving it was on the plaintiff. It is hardly necessary to criticise the evidence, for the judgment of neither court follows the plaintiff’s prayer or the statement of his cause of action. It is therefore in violation of the well-settled rule that no judgment can be given in favor of a plaintiff on grounds not stated in his complaint, nor relief granted for matters not charged, although they maybe apparent from some part of the pleadings or evidence. Rome Exchange Bank v. Eames, 1 Keyes, 588; Wright v. Delafield, 25 N. Y., 266; Southwick v. First Nat. Bank, 84 N. Y., 420. This point was fairly presented by the exception taken at the close of the plaintiff’s case, and again at the close of the testimony, to the refusal of the trial judge to grant the defendant’s motion to dismiss the complaint, and by exceptions to the refusal to find certain conclusions of law to which his attention was directed.

So far -from sustaining the plaintiff’s cause of action, the decision of the special term and the final judgment of the general term, not only in effect, but directly, affirmed the validity of the conveyance to Adaline. There is not only no finding of a fraudulent intent on her part, but the precedence and right of security, with indemnity against costs, adjudged to her an equivalent to a finding that she was innocent of fraud, or notice of any intended fraud on the part of her grantor. She stands, then, upon the record as a grantee for a valuable consideration, and this, even i£ inadequate in amount, is sufficient to sustain her title. 2 Rev. St., § 137. The decision of the court below is therefore wholly inconsistent with the contention of the plaintiff, as expressed in his complaint, that the deed was fraudulent in fact on the part of both husband and wife. Nor does the evidence permit the conclusion that it was obtained under even suspicious or inequitable circumstances. Already incumbered with a mortgage of $1,000, the property was conveyed in pursuance of an agreement that the grantee should have the title in consideration of $1,000, confessedly her own money, advanced and paid towards the building of the house. According to testimony taken upon supplementary proceedings, and introduced by the plaintiff, the debtor, “ at the time of the transfer, and for years afterwards, was solvent and able to pay his debts at a moment’s notice.” This evidence was substantially reiterated by the debtor upon the trial, and neither by cross-examination nor otherwise was a different state of his affairs presented. It is shown that in 1872 he was dealing with the plaintiff, but he paid fully and promptly, first by note at short intervals, and then met the notes, at maturity, according to the usage between them, and, although he continued from 1872 to 1881 to buy of the plaintiff, the debt in judgment was in no part an old one, but contracted, as the evidence disclosed and the trial judge found, between the twenty-sixth of March, 1881, and the twenty-first of May, 1881. The fact that the plaintiff had given credit previous to the deed. and was not informed, when subsequent credit was given, of the conveyance to tbe wife, is no evidence of fraudulent intent Carr v. Breese, 81 N. Y. 584. There are therefore no facts or incidents showing intended fraud, — no act susceptible of fraudulent operation, — and, if there are in truth circumstances which would permit a court to turn the absolute conveyance into a mortgage, they are neither alleged in the complaint nor stated in evidence.

Our attention, however, is called by the learned counsel for -the respondent to a request made by the defendant, and a finding by the trial judge in assent thereto, viz ; “ that, at the date of said conveyance, July 7, 1877, and for three or four years previous -thereto, the said Henry J. Sarles was indebted to his wife in the sum of $1,000, which was loaned to him by her, (and which was given to her by her father,) and expended in the erection of the house upon the premises described in the complaint by the defendant Henry J. Sarles ; and the conveyance was made to Ids wife, in pursuance of an agreement by her husband to convey to her the said lot of land, for security for the said $1,000, which was the consideration for said conveyance to his wife, the defendant Adaline Sarles.” This was presented after unsuccessful motions to dismiss the complaint, and evidently not hi aid of the judgment subsequently given; for it was made the basis of a request for other findings and for conclusions of law (1) that the deeds conferring title on the defendant Adaline “ were made, executed,, and delivered in good faith and for a valuable consideration, without intent to hinder, delay, or defraud the creditors of the defendant Henry J. Sarles, or the said plaintiff, of their or his lawful debts, or demands,” and (2) “ that the defendants have judgment for the dismissal .of the complaint in this action, together with the costs and disbursements of the same,” — -and these requests being denied, the defendants excepted to both refusals. The exceptions were well taken — to the refusal to dismiss the complaint, for no case had been made out; to the refusal to find as requested, because the evidence warranted nothing less. Nor was the right to insist upon the point made by the first exception waived by the subsequent request. Having failed to obtained the entire relief asked for, the defendants might demand less, without losing any right to complain of the denial of the whole.

The cases (Carpenter v. Roe, 10 N. Y. 227; Savage v. Murphy, 34 N. Y. 508; Case v. Phelps, 39 N. Y. 164; Shand v. Hanley, 71 N. Y. 319) cited by the respondent are not analogous. In all it appeared that the conveyances in question were voluntary. In Carpenter v. Roe, the debtor was largely in debt, and his solvency contingent upon the stability of the market in which, at the time, he speculated, and failed within 50 days thereafter. In the other the conveyance was made with a view to continued and future indebtedness, and witb intent to avoid payment thereof; all parties conspired to carry out tbe fraudulent purpose. Here the deed was upon a valuable consideration, without fraudulent intent, or facts from which such intent could be inferred. As between the debtor and bis wife, the property belonged to her; and if, as against creditors, tbe deed is to be converted into a mortgage, it must be upon proper evidence in an action where such relief will be consistent with the case made by the complaint and embraced within the issue.

Upon the case as now presented, the plaintiff failed, the defendants’ exceptions were well taken, and the judgments of the general and special terms should be reversed, and a new trial granted, with costs to abide the event.

(All concur, except Ruger, C. J., and Eaiil, J„ dissenting,)


author: Ruger, C. J.

text:
    Harriet A. Brady, et al., Exrs., Resp’ts v. Patrick Cassidy, et al., Appl’t.

      (Court of Appeals,

      Filed January 18, 1887.)
    1. Sale. — When title vests in vendee.
    The plaintiffs sold certain property tlien upon premises occupied by tbe defendants, a bill of sale was executed and there remained nothing to be done to complete tbe purchase, but tbe preparation of an inventory and the ascertainment and payment of the price of the property sold. Held, that the execution of the hill of sale passed the title to the property; that after the making of the above contract the plaintiff had no right to deliver any of the property covered by the bill of sale to a person who had previous to the date of the bill of sale said he would take part of it, but between whom and the plaintiff no valid executory contract of sale was made.
    2. Contract — When the court must interpret.
    The rule is well settled that ■when the terms and language of a contract are ascertained, in the absence of technical phrases whose meaning is obscure, or the existence of latent ambiguities rendering the subject-matter of the contract uncertain and doubtful, the office of interpreting its meaning belongs to the court alone.
    8. Same — Evidence — Parol to vary — Competency.
    It is not enough to render parol evidence competent, to explain the meaning of a written contract, that there were circumstances known to one of the parties but unknown to the other, which might have influenced such party in making a contract, but to create an ambiguity that opens such a contract to parol explanation, it must be established by proof of circumstances known to all of the parties to the agreement and available to all in selecting the language to be employed to express their meaning.
    Appeal from a judgment of tbe general term of the court of common pleas of the city and comity of New York, affirming a judgment on a verdict in favor of the plaintiff in an action for the price of goods sold and delivered. •

      John IS. Parsons with Otto Horwitz, for appl’ts; Oreorge H. Porster, for resp’ts.
   Ruger, C. J.

Previous to June, 1888, Alfred Brady had for many years carried on the business of making plumbers’ castings at a foundry and warerooms located in the city of New York. Having died in May of that year, bis executors determined to dispose of the business and property on hand, and, in pursuance of that intention, early in June, effected a transfer of what was called “ the plant ” to the defendants, at a price agreed upon, and also leased the premises in question to them from the' day of sale to the first day of January, thereafter, and the defendants took immediate possession thereof. On the twentieth day of June, subsequently, they also sold to the defendants their stock on hand, and executed and delivered to them a written bill of sale, reading as follows :

“ Sold to Oassidy & Adler, the entire manufactured stock in good condition,, consisting of pipes, fittings, flues, etc., now on hand at foundry and storerooms, on 55th and 56th streets, 10th and 11th aves. The price on same to be eighty (SO) per cent, from list price, besides the sum of seven hundred dollars. The stock to be taken without tarring, and to be left on premises ; the same to be-paid for in cash. The receipt of one hundred dollars, as part payment of same,, is hereby acknowledged. I. Wietterbottom, Ex’r.”

The property sold being then upon premises occupied by the-defendants, the execution of the bill of sale passed the title, and there remained nothing to be done to complete the purchase but the preparation of an inventory, and the ascertainment and payment of the net price of the property sold. The preparation of the inventory was immediately set about by the plaintiffs, it was completed and delivered to the defendants some time about the middle of July, and it appeared therefrom that the net price of the property included therein was 111,955.38. Upon an examination of such inventory by the defendants, after its delivery to them, they discovered that it did not contain all the property purchased, and that a large amount of pipe, consisting proportionally of the most valuable part of the stock which had. ajjpeared among the goods on hand in the stock at the time of the gale to defendants, was not included in it, and, upon demanding an explanation of this circumstance, were informed by the plaintiffs that it had been delivered by them to other parties, customers of the foundry, after the day of sale, .upon orders received by them previous-to that time, and they claimed the right to make such delivery under the terms of the bill of sale. The defendants protested against this disposition of the property, and claimed damages for its removal from the foundry. The-value of the goods, over the contract price, thus removed, amounted to several thousand dollars. This action was brought to recover the amount shown to be due by the inventory; and the-defense was a counter-claim for damages arising out of the withdrawal by the plaintiffs of the pipe in question from the stock sold after the delivery of the same to the defendants.

The question discussed relates to the validity of this defense.

No question was made on tbe trial but that the pipe in question was on the premises on the day of sale, and was exhibited to the defendants as a part of the stock by the plaintiffs ; but it was claimed that such goods ought not to be considered as included in the terms of the bill of sale. Neither was it claimed that there was anything ambiguous in the language of the bill of sale, or any doubt or uncertainty arising over the description of the property referred to therein; but it was claimed by the plaintiffs, and held by the trial court, that proof of the circumstances surrounding the sale and the situation of the parties created an ambiguity, which authorized the plaintiffs to give parol evidence to explain and apply the language used to the subject of the sale, and limit the effect of the description. The burden of establishing such a condition of things naturally rested upon the plaintiffs, and. they attempted to meet by proof the responsibility thus cast upon them. Evidence was given by which it was attempted to be shown that they had, previous to June 20th, effected sales of pipe, fittings, etc., from the stock to third parties, which constituted the property delivered after their sale to defendants.

The evidence to establish such sales was extremely loose and unsatisfactory, and fails, as we think, to show any valid agreement for such sales. The principal witness on tills question was one Newcomb, a former clerk of the plaintiffs, who claims to have bought the bulk of the property delivered after June 20th from the plaintiffs, and to have sold and delivered it to customers of his own directly from the warehouses leased to the defendants. Some of it was delivered after June 20th, to a purchaser who had previously promised to come and look at the stock, and select some goods for purchase; but the most of it was delivered to persons who had no relations with the plaintiffs, but bought directly of Newcomb after the twentieth of June. The only authority shown in Newcomb to make such sales arose from a notice given by him to one Finch, an employé of the plaintiffs, about a week previous to June 20th, to the effect that he would take the balance remaining in the stock of certain kinds of pipe and fittings then specified by him. These goods were not charged to Newcomb at this time, neither was any part of the purchase price then paid or goods delivered, nor was any memorandum in writing made of the transaction. It does not even appear that the plaintiffs agreed to sell the goods to Newcomb. Some few articles were also shown to have been ordered by two or three different parties previous to June 20th, and were entered in the books as sold, although they were delivered thereafter; but the amount and value of such goods do not appear, and they were apparently regarded on the trial as of insignificant importance. It is quite evident from tins state of facts that even no valid executory contract of sale was made between the plaintiffs and Newcomb, much less that any contract was effected transferring the title of the property in question to the intending purchasers. It is also clear that the proof did not establish any valid execu-tory contract of sale of such goods to third persons, prior to June 20th, within the provisions of the statute of frauds. Rockwell v. Charles, 2 Hill, 499. There was no suggestion in the evidence that the defendants had knowledge of these alleged sales, or reason to suppose that any portion of the stock pointed out as that proposed to be sold, had been previously sold to other parties. Such an idea could have been entertained by them only upon the assumption that the plaintiffs were intending to perpetrate a fraud in making a sale to them.

Under these circumstances, the court, upon the trial, left it to the jury to determine what the parties meant by the use of the terms “ stock on hand” as used in the bill of sale ; whether it meant all of the pipes in the building, whether previously sold to other parties or not, or only those pipes that the executors still owned at the time the contract was made. The determination of the court to leave these questions to the jury was duly excepted to by the defendants, and it was further requested to pronounce upon the meaning and intent of the contract in the respect mentioned, which it refused to do, and the defendants also excepted to this refusal. The court also charged the jury that “ there was certain stock which they (the executors) owned that was in the inventory ; all that was in the inventory Cassidy & Adler got. There was certain stock that they (the executors) did not own, that is not in the inventory, and that Cassidy & Adler have not got. The defendants duly excepted to so much of this instruction as stated that there was some part of the stock that the executors did not own at the time of the sale to defendants. We think these exceptions were well taken. The theory that there was any part of the property in question of which the plaintiffs were not the owners at the time of their sale to defendants had no support, as we have seen, in the evidence.

Upon the undisputed facts of the case,' the plaintiffs had failed to show a contract which, as between themselves and the alleged purchasers, transferred the title of the property. Notwithstanding all that was said and done, the plaintiffs remained the legal owners of such property, and entitled to dispose of it as they did to the defendants on the twentieth of June. Caulkins v. Hellman, 47 N. Y. 449; Burt v. Dutcher, 34 N. Y. 493; Benj. Sales, 321, §§ 308-310. Even assuming that a valid exe-cutory contract of sale was made by the plaintiffs, prior to June 20th, to the purchasers referred to, such purchasers acquired no title to any specific property, and, upon a refusal by the vendors to fill the orders, had a right of action simply for damages. The effect of the instruction last referred to was to withdraw from the jury the consideration of all evidence relating to the prior sales, to other persons, and determine, as a question of law, that such transactions effected a transfer of the property referred to from the plaintiffs to such persons. They were thereby directed to consider the evidence as establishing a change of ownership of the property in dispute, and to determine the meaning of the language used in the contract in the light of that circumstance. We think the evidence was not susceptible of such a construction, and that it wholly failed to show any change of ownership of the property referred to.

We think, also, that it was the undoubted right of the defendants to have the meaning and intent of this contract determined by the court, and not by the jury. The rule is well settled that when the terms and language of a contract are ascertained, in the absence of technical phrases whose meaning is obscure, or the existence of latent ambiguities rendering the subject-matter of the contract uncertain and doubtful, the office of interpreting its meaning belongs to the court alone. Dwight v. Germania Ins. Co., 103 N. Y. —; 3 N. Y. State R. 115; First Nat. Bank v. Dana, 79 N. Y. 108. It would be a dangerous principle to establish, where parties have reduced their contracts to writing, and defined their meaning by plain and unequivocal language, to subject their interpretation to the arbitrary and capricious judgment of persons unfamiliar with legal principles and settled rules of construction. No such ambiguity, however, existed in the language of this contract as made it necessary or proper to refer its meaning to the jury, and the evidence as to the surrounding circumstances established no case showing that any uncertainty existed as to the identity of the property intended to be sold, or as to the meaning and intent of the contract. Whatever notion might have been entertained as to the understanding of the plaintiffs in respect thereto, there was not the slightest evidence to show that the defendants had any reason to suppose that the contract had any other meaning than that expressed by the literal signification of its language. It is not enough to render parol evidence competent that there are circumstances known to one of the parties, but unknown to the other, which might have influenced such party in making a contract ; but, to create an ambiguity that opens such a contract to parol explanation, it must be established by proof of circumstances known to all of the parties to the agreement, and available to all in selecting the language to be employed to express their meaning.

This contract, however, was plain and unambiguous in its language, and was susceptible of but one construction. It stated that the subject of the sale was “the entire manufactured stock, in good condition, consisting of pipes, fittings, flues, etc., now on hand at foundry and store-rooms on Fifty-fifth and Fifty-sixth streets, Tenth and Eleventh avenues.” No technical words are used in the description, and no difficulty existed in applying the language used to the subject of the contract with certainty and exactitude. Notwithstanding this plain description of the property sold, the jury were permitted to find, under the instructions of the court, that it did not mean the entire stock on hand, but that it referred only to so much thereof as remained after other parties had removed such goods as they had previously notified the plaintiffs of an intention to purchase. The proof showed that the goods thus taken consisted of the most valuable part of the stock, and, if authorized, the construction put upon the language used effected a very material alteration of the terms of the contract to the damage of the defendants.

Other exceptions to the charge have heen called to our attention, which we regard as worthy of serious consideration; but, in view of the conclusions reached upon the main point in the case, we deem it unnecessary particularly to refer to or discuss them.

The judgments of the courts below should be reversed, and a new trial ordered, with costs to abide the event.

All concur.


text:
    Kate E. Sherry, Admx., Appl’t, v., New York Central and Hudson River R. R. Co., Resp’t.

      (Court of Appeals

      Filed January 18, 1887.)
    1. Negligence — Contributory — Railroad crossing — Omission- to give signal — Question por jury.
    In an action for damages for tlie killing of intestate by a train of a railroad company at one of its street crossings, where the train omitted to give the statutory signal of its approach. Held, that although the bell was not rung or the whistle sounded it was still the duty of one traveling on the street crossed by the railroad to exercise due care and diligence to discover whether a train was about to pass, and if she failed to do so, or if, seeing the approaching train, she nevertheless undertook to cross, she was guilty of negligence, and if injured can have no just cause for action. That to determine whether a complaining party is within this rule of exclusion, or whether her conduct in a given case was consistent with reasonable and ordinary care, all the circumstances surrounding the transaction are tobe examined. That usually it is a question for the. jury.
    2. Same — When a question poe the jury — Nonsuit.
    The railroad of six tracks crossed the street, where the intestate was struck and killed, upon a curve. On this occasion there were also box-cars of the defendant upon a side track which cut oil the view until the wayfarer had actually reached the main track. By the sudden appearance of the locomotive, while intestate was crossing, she was called upon to determine whether she should stand still, or retreat, or try to get over the tracks. Held, that she had to determine instantly between these hazards. That it cannot be said as matter of law what a prudent and reasonable person would have done in circumstances similar to those in which the intestate ivas placed. That a jury alone can determine what was her duty and how far it was performed. That the court erred in granting a non suit.

      Appeal from a judgment of the supreme court, general term, fourth department, affirming a judgment of the Herkimer county circuit granting a nonsuit in an action to recover damages for the death of jdaintiff’s intestate.

      Crumby & Jones, for appl’t; C. D. Prescott, for resp’t.

       Reversing 40 Hun, 634.

   Danforth, J.

The learned counsel for the respondent, at the opening of this argument, conceded that he was bound to assume, for all the purposes of the case, that upon the occasion in question th$ defendant omitted to give the statutory signal of its approach. It was therefore in fact and in law guilty of negligence. But although the bell was not rung or the whistle sounded, it was still the duty of one traveling on the street crossed by the railroad to exercise due care and diligence to discover whether a tram was about to pass, and if she failed to do so, or if, seeing the approaching train, she nevertheless undertook to cross, she was guilty of negligence, and, in either case, if injured, so contributed to the accident that she can have no just cause of action. To determine, however, whether a complaining party is within this rule of exclusion, or whether her conduct in a given case 'was consistent with reasonable and ordinary care, all the circumstances surrounding the transaction are to be examined. Usually, therefore, the question is for the jury, and only in exceptional cases can the court answer it. The court may dispose of the case ; and it is its duty to do so when no facts are in dispute, or any weighing of testimony necessary.

The cáse before us was disposed of by the trial judge as one of that character, and the appeal questions the correctness of his decision. The appellant here was plaintiff in the action. Her intestate, Charlotte Briggs, was struck and killed by the defendant’s locomotive engine at the railroad crossing of Fifth street, in the village of Little Falls, between 2 and 3. o’clock in the afternoon of October 4,1883. The railroad of six tracks crosses the street upon a curve, but nearly at right angles. It afforded protection by neither flag-man nor gate, and, upon the occasion in question, its train came from the west upon the crossing, out of time, at the speed of 30 miles an hour, sounding neither bell nor whistle, and, so far as appears, without other warning of its approach. Between Fifth street and the west were various obstructions to the view, a ledge of rocks separating two of the tracks from the other four, and the fences of a cattle-yard extending up to the west line of Fifth street. On this occasion there were also box ears of the defendant upon a side track, just Avest of the crossing, and which cut off the view until the the wayfarer had actually reached the main track. The curve was of such a radius that although, when on the tracks, a person could, according to her position, see an approaching train at a distance of from 580 to. 645 feet, sbe could, under the most favorable circumstances, identify the track over which it moved at but from 400 to 440 feet. There was much wind at the time, and south of the railroad, and in its vicinity, were mills and factories, whose machinery created considerable noise.

The woman came along Fifth street to the crossing, passed over two tracks and through the intervening space by the box cars to the most northerly, or fourth, of the four tracks, and, passing on, had reached No. 1, or the most southerly, when she was struck and kiñed. In deciding the motion for a nonsuit the court held that, under the circumstances in evidence, it would be a question for the jury whether “ she may not have exercised her hearing — may not have listened, — and still not have heard the train; that whether she could have seen the train from the open space, or from the most northerly of the four tracks, was also for the jury,” saying “ upon the evidence here, the jury would have a right to find that there were box cars there, and that her view was impeded somewhat by those, so they might find she could not see upon the track until she passed to the southerly edge of that siding, or stepped over the rail.” Nor did the learned judge think that it could be said as matter of law that she did not look while on the railroad after passing the point up to which she could not see. From that point where the view was unobstructed by the box cars across the road to the rail of track No. 1, — where she was killed, — was thirty-two feet and two inches. It was covered by the defendant’s tracks. She was upon them, and the argument is that, if she looked, she must have seen the approaching train, and during that time had the ability to save herself by keeping off the track No. 1. “ I am hardly willing,” says the learned judge, “ to say that, whether she looked or not, might not be a question to the jury. What I do think is that she had no right to pass over that thirty-two feet and two inches, and go upon that track, with the train in full view coming towards her; and when she did it, she did it either from a thought that she could get over in safety before the train struck her, or made a miscalculation; and, if she did, that is negligence, because, when she saw the train coming, her duty was not to attempt to get past before the train came, but to wait, — and, if she took the chances, she took the chance of her death, without holding the defendant liable.”

Upon this ground the nonsuit was granted, and upon this ground the learned counsel for the' respondent contends that it should be sustained. Certainly, upon the evidence there is no other. In approaching the railroad, and entering upon its group of tracks, the jury might well find that the traveler exercised as much diligence as a prudent person would exercise under the circumstances, having regard for her own safety and fairly endeavoring to perform her duty. This, under the rulings of the trial judge, was the law of the case. She undoubtedly came into a place of danger tlie instant her foot touched the road-bed of the defendant; but the omission of the defendant to obey the law, and give notice of the running train, was an assurance of safety, and that no locomotive engine was within 80 rods of the place where she then lawfully was. That omission was not only negligence and a violation of a statutory duty on the part of the defendant, but it also bears upon the conduct of the plaintiff, and must affect any estimate of the amount of care she should have observed. Nor did the court hold that she did not look or observe after reaching the tracks. She is charged with having seen the train before she reached the track where she was killed. The evidence permits the inference that, before reaching the middle of the four tracks, the train could not be seen, and might not be heard, and, when first in view, that it would be difficult to determine on which of the four tracks it was moving. One L. passed over the same crossing just a little ahead of Mrs. Briggs. He first saw her as he was going upon the track from the north, she then being 20 feet behind him. He passed completely over the railroad, and reached the south side of all the tracks, when he first heard the tram approaching. He heard the noise, but could not see the train. “ After hearing the train,” and while standing within four feet of the first track, he says, “ I saw the old lady between track two and three.” C., being south of the crossing, saw her coming from, the north towards and upon the four tracks. “ Before going on she raised her head up.” He says: “ As the train rounded the curve the old lady was somewhere between tracks two and three, coming south, facing me; ” and adds: “ From the point where the old lady was when the train rounded the curve, the track upon which a train approaching from the west is coming cannot be determined without you are familiar with the tracks. The track the train is approaching on cannot be seen.” “ I next,” he says, “ saw the old lady between tracks one and two. I then saw her throw up her head and quicken her pace. She was coming to the south. My attention was called to the train as it came down between Fifth and Sixth streets. It was blowing off steam. I noticed the smoke. It was a cold, windy afternoon. The wind was blowing from the west. From where I stood I could see this steam and smoke. The wind blew it to the ground facing the engine. It blew it down in front of the engine. The old lady at that time was between tracks one and two.” At that time, also, a train was coming from the east; and, on the crossing just south of the railroad, the witness L. Avas preventing, with some difficulty, another woman, drawing a little wagon, from entering upon the railroad.

There is other evidence bearing upon these circumstances/ and, in reviewing the propriety of a nonsuit, the appellant is entitled to have all of it construed in a manner most favorable to her contention. Harris v. Perry, 89 N. Y., 308. We think it cannot properly be said, as matter of law, that the intestate was in fault. By the sudden appearance of tbe locomotive she was called upon to determine whether she should stand still or go north or south, — north to retreat, or south to get over the tracks. If, as is assumed, she saw the locomotive, it may also be inferred that she was ignorant as to which track it was upon. The configuration of the tracks, the wind driving before the locomotive its steam and smoke, might well tend to disturb her judgment. The noise of the mills; the fracas with the woman whose course was interrupted; the train coming from the east; even the very number of the tracks, — might add to her confusion. Determine she must, and that instantly, between these hazards. It cannot be said, as matter of law, what a prudent and reasonable person would have done in circumstances similar to those in which the intestate was placed. For aught she could see there was possible danger in each direction, and her present position one of jeopardy. A jury alone can determine what was her duty, and how far it was performed. These things were to be ascertained as facts, and the principle embodied in the maxim, “ad questiones facti non respondent judices,” has full application. Wasmer v. Daleware, etc., R. Co., 80 N. Y 218; Beisiegel v. Same, 34 N. Y. 622; Greany v. Long Island, R. Co., 101 N. Y., 419.

We think the court erred in taking the case, from the jury. The judgment should therefore be reversed, and a new trial , granted, costs to abide the event.

(All concur, except Earl, J., taking no part.)


author: Andrews, J.

text:
    People ex rel. John F. Bridgeman, Resp’t v. Benjamin H. Hall, Appl’t.

      (Court of Appeals,

      Filed January 18, 1887.)
    1. Office and Officer — Chamberlain — City of Troy, New York — Interim Appointment.
    The charter of the city of Troy provides: “In the event of sickness of the chamberlain,'if he shall neglect to appoint some suitable person to discharge the duties of the office, the Mayor may appoint some suitable person, to be approved by the common council, to discharge the duties of such officer during such sickness or absence.” The Mayor in a communication addressed to the common council after reciting that “ Henry S. Church, the chamberlain of the city, had abandoned his office and according to accounts had left the city,” and also, that a partial examination of his accounts rendered it morally certain that he was a defaulter, concluded as follows: “ Under these circumstances and in pursuance of the provisions of the charter, I do hereby appoint, subject to your approval, Benjamin P. Hall, to discharge the duties of the office of chamberlain during the absence of Henry S. 'Church.” The appointment of Hall was duly approved by the common council, and he subsequently entered upon the duties of the office. He afterwards insisted that although the appointment on its face was an ad interim one, yet that it was in legal effect an appointment, for the full term of three years, for the reason that the Mayor, under the circumstances existing at the time, had no power to make a temporary appointment, but did have power to nominate a chamberlain for a full term and none other. Held, that the restrictive words in the appointment could not be disregarded without changing the essential character of the appointment; and if the power to make a temporary appointment could not, under the circum-stauces, be exercised, then the appointment was void, and did not inure as an appointment for a full term.

      2. Same — Res Ad.tudicata — Estoppel.
    A former judgment which by its terms expressly disclaims any decision of the matter in controversy, notwithstanding it may be inferred as a necessary sequence to the fact found that the question at issue was really decided, cannot operate as an estoppel.
    Appeal from a judgment of the supreme court, general term, third department, affirming a judgment of the Rensselaer county circuit, in favor of the relator on a writ of quo warranto to try the title to the office.

      Esek Cowen, for appl’t; li. A. Parmenter, Merritt and Ryan and William J. Roche, for resp’t.

       Affirming 39 Hun, 653 mem.

   Andrews, J.

We think the judgment should be affirmed, and shall content ourselves by stating briefly the reasons for this conclusion.

The controversy relates to the title of the office of chamberlain of the city of Troy, at the time of the commencement of the action, in September, 1885. The relator claims title by virtue of his nomination by the mayor, May 21, 1885, for the office of chamberlain, “ for the ensuing term of three years,” and its confirmation, under the provisions of the charter, by the failure of the common council to reject the same. The defendant claims title under a written appointment, contained in a communication addressed by the mayor to the common council, dated February 7, 1884, in which the mayor, after reciting that “ Henry S. Church, the chamberlain of the city, had abandoned his office, and, according to accounts, had left the city,” and also that a partial examination of his accounts rendered it morally certain that he was a defaulter, concluded as follows: “ Under these circumstances, and in pursuance of the provisions of the charter, I do hereby appoint, subject to your approval, Benjamin F. Hall to discharge the duties of the office of chamberlain during the absence of Henry S. Church.” The communication was received by the common council on the day of its date, and the appointment of Hall was thereupon approved by a majority vote of the council. It is insisted by the defendant that, although the appointment on its face was an ad interim one, it was in legal effect an appointment for the full term of three years, for the reason that the mayor, under the circumstances existing at the time, had no power to make a temporary appointment, but had power to nominate a chamberlain for a full term, and no other, and that the appointment and confirmation of Hall must be referred to the power actually existing, and not to that attempted to be exercised, and that the restriction contained in the terms of the appointment was therefore nugatory. If this contention is well founded, the defendant was the rightful incumbent of the office in September, 1885, as his term would not expire until February 7, 1887. If, on the other hand, the appointment of Hall was valid as an ad interim appointment only, or was wholly void, and these questions are now open for decision, notwithstanding the adjudication in the former action, then it is conceded that the relator is entitled to the office under the nomination and confirmation of May 21,1885. It is plain that, if the appointment of Hall was valid only as a temporary appointment during the absence of Chamberlain Church, his right to hold the office expired on the resignation of Church, April 2, 1884, or, at all events, on the-expiration of Church’s term, October 7, 1884. In either case-there was a vacancy in the office May 21,1885, which could be filled by a nomination and an.appointment for a full term. The main question is as to the character and legal effect of Hall’s appointment, February 7, 1884.

The chamberlain, under the Troy charter, is to be nominated by the mayor, and confirmed by the common council, and has a term of three years. The charter also contains this provision: “ In the event of the sickness or absence of the chamberlain, if he shall neglect to appoint some suitable person to discharge-the duties of the office, the mayor may appoint some suitable, person, to be approved by the common council, to discharge the duties of the office during such sickness or absence.” The appointment of Hall plainly indicatéd on its face that it was an attempt to exercise the power conferred by this provision, and that it was not intended as a nomination for a full term. It assumed that there was no vacancy in the office, but that circumstances existed which justified the exercise of the power to make a temporary appointment under the provision referred to. It is insisted, however, that the exigency contemplated by the charter had- not arisen, and that the mayor had in fact no authority to make a temporary- appointment for the reasons— Mrst, that Church, although he had acted as chamberlain under a regular appointment for one full term and part of a second term, was never in fact chamberlain de jure, by reason of not having filed a proper bond, and that, therefore, no acting chamberlain could be appointed in his place, he being an officer de facto merely; second, that the defalcation and flight of Church was not such an absence as was contemplated by the charter; and, third, that his flight from the .city, with an intention not-to return to Troy, as is found, was an abandonment of the office, and a removal from the city, which created a vacancy,, which could be filled only by an appointment for a full term.

"We deem it unnecessary to- consider whether, under the circumstances disclosed, the power to make a temporary appointment existed on February 7, 1884. It is clear that the mayor supposed he had the power, and undertook to exercise that power, and that alone. Assuming that the mayor had no power to make a temporary appointment, for any or all the reasons urged, the necessary result upon that assumption is, we think, that the attempted appointment of Hall was a nullity. The mayor has power by the charter, in case of a vacancy, to nominate for a full term, and also a power to appoint for a temporary period, .viz., during the absence of the incumbent. He has, in other words, two distinct powers relating to the same general subject, one of which he attempted to exercise, and so declared; but it turns out that his only authority in the particular contingency was to exercise the other power, which he did not intend or -attempt to exercise, but plainly excluded from his consideration. It is sought to make his act stand as an execution of the other power, contrary to his intention. We find no authority jixstifying such a contention. Under the general principle of agency and powers, such a result is excluded. Lord Coke says, (Co. Litt. 2586:) “ Regularly, it is true that when a man doth less than the commandment or authority committed unto him, then, the commandment or authority being not pursued, the act is void. And when a man doth that which he is authorized to do, and more, that is good for that which is warranted, and void for the rest. Yet both these rules have divers exceptions and limitations.” See, also, Sugd. Powers, c. 5. Where an agent does an act in excess of his authority, and the excess is separable, the act in many cases may stand so far as it is authorized, and for that the principle may be bound. But where an agent or the donee of a power does a different thing from what he is authorized to do, and what he does is intended as an exercise of one of several powers, and he does the act for one purpose, and in the assumed exercise of one specific power,» it would seem to be contrary to reason to treat the act as done under a different power, and make it binding, contrary to the intention.

There are certainly very strong reasons, founded in public policy, against permitting a person to claim and hold a public office in such a case and under such circumstances as are disclosed in this record, against the intention, and through the mere mistake, of the appointing power as to the existence of extrinsic facts, supposed to exist, and which, if they had existed, would have rendered the appointment valid according to its “ terms. It might very well be that the public interests would, in the judgment of the mayor and common council, require a different appointment for a full term than for a temporary period. The restrictive words in the appointment cannot be disregarded without changing the essential character of the' appointment. They constitute an integral part of the transaction, and cannot be separated from the prior words without subverting the whole intention of the appointing power.

We conclude, therefore, that if the power to make a temporary appointment could not, under the circumstances, be exercised, the appointment of Hall was void, and did not inure as an appointment for a full term.

The question involved in the Michigan cases (People v. Lord, 9 Mich. 227; Stadler v. City of Detroit, 13 Mich. 346) is not represented. There the appointing power attempted to exercise a power of appointment clearly defined, but, by inadvertence or misapprehension, put a limitation upon the appointment which was unauthorized. Here upon the assumption made, an attempt was made to exercise a special power, which, under the circumstances, could not be exercised for any purpose or to any extent whatever ; and there was no attempt to exercise the actual power.

The remaining question arises in respect to the estoppel of the former judgment. The prior action was founded upon the title of the relator, under his prior nomination and appointment of January 15, 1885. The defendant set up, as in this case, his appointment of February 7, 1884. Judgment was rendered in that action against the relator, and in favor of the defendant. It is now insisted that the judgment is conclusive that the appointment of Hall was for the full term of three years from February 7, 1884. It Is clear that this point was not adjudicated on the face of the judgment. On the contrary, the judgment, while affirming the title of the defendant to the office, expressly declares that it was not decided, nor intended to be decided, whether he was legally chamberlain under a temporary appointment, or under an appointment for a full term of three years; but the argument is that as the only title which Hall had was-under the appointment of February 7, 1884, the judgment necessarily determines that that appointment was a valid one; and, as the judgment further determined that Hall was the rightful chamberlain when the judgment was rendered, (June 6, 1885,) and as this could not be true if the appointment was a temporary one only, it follows that the appointment of February 7,1884, must have been for a full term, and must ha've been so determined. The judgment, doubtless, did determine that the appointment of February 7, 1884, was a valid appointment. But tins concession does not help the defendant in raising an estoppel, unless he can show further that the judgment also determined that the appointment was for a full term. This-point the court expressly refused to decide. It is sought to be inferred, as a necessary sequence to the fact found, against the express disclaimer in the judgment itself; but it is a decisive answer to the defense of res adjudicata that judgment passed against the relator in that action on a ground which is utterly inconsistent w.ith an adjudication that Hall’s appointment was for a full term. In that action both the title of the relator and of the defendant were in issue. The relator was defeated on the ground that he had omitted to give, a proper bond, under the appointment of January 15, 1885, and so the judgment declares. This clearly implies that, but for this omission, his title to the office under that appointment would have been valid. This could not be so if the appointment of Hall was for a full term, as that term would not expire till February 7, 1887. The most that the defendant is entitled to claim is that the judgment contains contradictory and inconsistent implications, one that the appointment of February 7, 1884, was for a full term, and the other that it was a temporary appointment only. Under this situation, the matter is set at large, and the judgment constitutes no estoppel. It comes within the qualification stated in the Duchess of Kingston’s Case, 20 State Tr. 355, that a judgment is not conclusive of “ any matter to be inferred by argument from the judgment.” It is unnecessary to consider the grounds urged against the conclusiveness of the former adjudication.

The former judgment not being in the way of an adjudication of the case upon the merits, we are of opinion that, for the reason stated, the -judgment should be affirmed.

All concur.


author: Rapallo, J.

text:
    Harriett S. Ferdon, et al., Executors, Appl’ts, v. Henry T. Canfield, Resp’t.

      (Court of Appeals,

      Filed January 18, 1887.)
    INSURANCE (Life) — Policy payable to third parties — Cannot be assigned BY INSURED.
    A policy of life insurance which, is payable to persons other than the person whose life is insured, and who are expressly termed in the policy the “ assured,” and the premiums are payable by them, cannot be assigned by the person whose life is insured. .He has no interest therein, and an assignment by him cannot affect the interests of the persons to whom the amount is payable.
    Appeal from a judgment of the supreme court, general term, first department, reversing a judgment of the New York county special term, in favor of the plaintiff, in an action to recover on a policy of life insurance.
    Samuel W. Canfield obtained from the Equitable Life Insurance Company a policy of life insurance' on the Tontine plan, which was made payable to his wife and six children, who paid the premiums. He assigned it to John W. Ferdon as collateral for $3,000, borrowed by him. At the expiration of the tontine period an action was brought by Ferdon against the insurance company for the money remaining in their hands. An action was also brought by Henry T. Canfield, as assignee of the children against the company for the same money. These two claimants upon the insurance society, admitting the fact of its haying the money, etc., were ordered to interplead to determine which was entitled thereto. After they had so interpleaded, John W. Ferdon died, and his executors were substituted as plaintiffs in his place.
    The action was tried , at special term resulting in a judgment in favor of plaintiff, which was reversed, however, by the general term on appeal. Whereupon the plaintiffs gave the required stipulation, and appealed to the Court of Appeals.

      A. & A. X. Fallon, for appl’ts; Oscar Frisby, for resp’ts.

       Affirming 30 Hun, 571.

   Rapallo, J.

Although the life of Samuel W. Canfield was the life insured by the policy, he was not the party assured thereby. His life was the subject of the insurance; but the contract does not, on its face, purport to have been made eithér. with him or for his benefit, nor does he appear to have had any interest therein which he could assign. The policy recites that, in consideration of the representations made in the application therefor, and of the sum of $1,009.25, payable in advance by Catherine E. Canfield and six others, children of the said Samuel W. Canfield, who are expressly declared to be the assured, and of the semi-annual payment of a lite premium, the society assures the life of the said Samuel W. Canfield in the amount of $25,000, and promises to pay the amount of said assurance to the said seven named children, in equal shares, in 60 days after due notice and satisfactory proof of the death of said person whose life is insured. Under this contract it is impossible to see how any assignment by the person whose life is insured can affect the rights of the parties to-whom the amount of insurance is, by the terms of the policy, made payable, and who are therein declared to be the parties by whom the premiums are payable, and to be the parties assured.

The plaintiffs claim under an assignment of this policy, made by Samuel W. Canfield to their testator, as collateral security for money loaned by him to Canfield; and the defendant claims under an assignment of the same policy from the children, who are therein described as the assured. No facts appear, either in the findings or the evidence, disclosing any equities on the part of the plaintiffs outside of the title claimed by them under the assignment by Samuel W. Canfield to their testator, and we are unable to perceive any foundation for their claim. The contract of the Equitable Assurance Society was not with Samuel W. Canfield, but, by its express terms, was with the assured, viz., his children.

The claim is made, in the points of the counsel for the appellant, that by the terms and conditions of the policy, (which was on the Tontine plan,) in case Samuel W. Canfield should be living at the time of the maturity of the policy, the amount due was payable to him personally. We are unable to find anything’ to that effect. The provision as to payment before death was that, upon the completion of the Tontine x>eriod, the legalholder or holders of the policy should be entitled, at their option, to withdraw in cash the policy’s share of the fund. The only provision under which it could be claimed that Samuel W. Canfield might in any event be entitled to draw anything is a subordinate one, to the effect that the legal holder or holders of the policy, on the completion of the tontine period, might, at their election, instead of withdrawing their share of the tontine fund, continue the assurance for the original amount, and apply their entire tontine dividend to the purchase of an annuity to reduce the future premiums, and that, if in any year the amount derived from such annuity, together with the annual dividend on the policy, should exceed the amount of premium due, the excess should be paid in cash to the said Samuel W. Canfield or assigns. It can easily be surmised how the name of Samuel W. Canfield, instead of the assured, happened to be inserted in this clause, but it is quite uninrportant to consider that matter, inasmuch as the contingency provided for never occurred.

The counsel for the appellant also claim that the alleged assignments from the assured to the defendant in this action were incomplete, and, in some respects, invalid. But these objections, if well founded, do not help the case of the plaintiffs. If the defendant has not a valid assignment of the interests of the assured, the fund belongs to them; but this does not improve the plaintiffs’ title.

The order of the general term should be affirmed, and judgment absolute rendered against the plaintiffs on their stipulation, with costs.

All concur.


author: Earl, J.

text:
    Nicholas F. Palmer, Ex’r, etc. Appl’t, v. Geo. A. Morrison, Resp’t.

      (Court of Appeals,

      Filed January 18, 1877).
    1. BANKRUPTCY — SALE BY ASSIGNEE WITHOUT ORDER OP COURT.
    Whether under the bankrupt law of 1841, a sale of a bankrupts’ real estate, by tne assignee in bankruptcy, without an order of the court, authorizing it, is absolutely void. Quaere. (Smith v. Long, 12 Abb. Ñ. C. 113, criticised)
    2: Contract — for sale of land — Specific performance — when title DEFECTIVE — ASSIGNMENTS.
    The interest of a party in an unexecuted contract for the sale of land is real estate, and at his death passes as such to his heirs and not to his administrators; and the heir alone can assign and convey such interest.

      William Man, for appl’ts; Martin ‡ Smith and George A Strong, and John M. Bowers, for resp’ts.

       Affirming, 19, J. & S. 530.

   Earl, J.

This action was brought to enforce the specific performance of a contract for the sale of land by the vendor against the vendee. The vendee defends on tbe ground that the plaintiff is not able to give such a title to the land as he has the right to demand and receive. The material facts are as follows : In the year 1842, and prior thereto, the land was owned in fee-simple by one Hartshorn, then a resident of this state, who, in December of that year, was, upon his own application, adjudged a bankrupt by the United States district court for the Southern district of New York, pursuant to the bankrupt act of 1841. He obtained his final discharge from his debts in 1843, and prior thereto no debts had been proved against his estate. But after his discharge in May, 1848, a debt of $194 was proved ; and that was the only one, so far as the record discloses, that was proved. William C. H. Waddell was the official general assignee in bankruptcy for the Southern district of New York, and as such became vested with the title to the land. On the twenty-second of March, 1844, he made a report, recommending a sale of the land, and thereafter he advertised it for sale, and on the seventh of May, 1844, it was sold at auction, and bid off by one Reed, for the price of two dollars. John Townshend, claiming to have purchased the bid from the administratrix of Reed, in 1866 applied to Waddell for a deed of the land; and, on the fourteenth of that month, Waddell executed a deed to him, which was placed upon record on the second of October, 1869. In 1871 Townshend conveyed the land to one Yan Schoeiieng, who, in 1874, mortgaged the same to Francis B. Hegeman. That mortgage was subsequently foreclosed, and the land was bid off by, and conveyed to, Mrs. Hegeman, and the plaintiff, under a power of sale contained in her will, entered into the contract of sale to the defendant.

The courts below held that the plaintiff was not able, to convey a good title to the land, and based their decision upon the case of Smith v. Long, 12 Abb. N. C. 113, in which it is claimed this court decided that, under the bankrupt law of 1841, an assignee in bankruptcy had no power to dispose of the real estate of the bankrupt, except in pursuance of an order of the bankrupt court, fixing the time and manner of such sale, and that, if there was no such order, the omission was jurisdictional, and the sale void under section 9 of the bankrupt act, which required that all sales, transfers, and other conveyances by the assignee of the bankrupt’s property should be made at such time and in such manner as should be ordered and appointed by the court in bankruptcy. Here there was no order of any kind of the bankrupt court directing the sale.

It is strenuously contended on behalf of the plaintiff now, as it was in the case of Smith v. Long, that the absence of the order, even if irregular, did not render the sale, and the deed given in pursuance thereof, absolutely void. It is claimed that a very large amount of real estate in the city of ~New York is~ held under deeds executed by .Waddell, as assignee, in pursuance of sales made in the same way, witliou-t any order of the bankrupt court, and that it would unsettle many titles now to hold that the deeds of the assignee under such circumstances were void. It is proper to say, in reference to the case of Smith v. Long, that after it was decided, a motion for reargurnent was made, and that motion was never decided, for the reason that the case was settled, and the opinion was therefore withheld from publication in the reports of this court. There were two grounds stated in the opinion for the reversal of the judgment in that case, and the decision can rest upon the one ground that the grantee of the land there in question had no right under the Oode to commence and maintain his action in the name of his remote grantor, and, under the circumstances, the last ground stated in the opinion for the reversal of the judgment, to-wit, that the sale and deed were void because there was no order of the court fixing the time and manner of the sale, should still be regarded as an open question in this court. It was not necessary to decide it in that case, and it was not finally determined. There is some dispute, both upon reason and authority, whether the order was a necessary pre-requisite to the validity of a sale and deed under the bankrupt act; and the abl~ judge who wrote the opinion in Smith v. Long reached the conclusion that it was: and whether it was or not should not be determined in this case in the absence of the bankrupt or his heirs, who would not be bound by any decision which might be made in the litigation between these parties.

But there are other grounds for the affirmance of this judgment. These facts standing alone,-to-wit, that no debts were proved against the estate of the bankrupt before his discharge, and but one small debt afterwards; that the land was sold by the assignee for but two dollars, without any proof even that that was paid, or that any binding contract for the sale was made; that no deed was given by the assignee until after the lapse of 22 years, when no conveyance could have been compelled, and that the deed was then given without any order of the court, and that no possession ever accompanied the title under the assignee's sale,-leave piaiiitiff~s title involved in iiiucli infirmity a~d uncertainty that any court could well decline to compel a vendee, entitled to a good. marketable title, to take a conveyance thereof. Fry, Spec. Perf. (3d Amer. Ed.) 437.

- BU~ there is still a surer aic~ n~-~r~s~tisfactory ~ro~tr~d tpou which to deny the relief th~' plaintiff seeks. I~'~r -was a binding contract for the sale of the land by the assignee to Reed, and Reed died, and his administratrix assigned his contract of purchase to Townshend, (of which facts there is no proof,) then Townshend obtained no right from the adminis-tratrix. She.had no interest in the contract or the land, and no right to deal with or sell the. same. Reed’s interest under the contract was real estate, and at his death passed as such to his heirs, and not tq his administratrix; and his heirs alone were authorized to assign and convey such interest. Boone v. Chiles, 10 Pet. 180; Simmonds v. Catlin, 2 Caines, 61; Hathaway v. Paine, 34 N. Y., 92, 103; Stoddard v. Whiting, 46 N. Y., 627. Waddell, therefore, had no authority to convey to Townshend, and the rights of Reed’s heirs, if, by his death, they acquired any in the land, appear to be still intact. The deed was not made in pursuance of any public sale, and was-wholly unauthorized by law.

The judgment should therefore be affirmed, with costs.

All concur.


text:
    People ex rel. John H. Millard, Resp’t v. Alfred C. Chapin, State Comptroller, Appl’t.

      (Court of Appeals,

      Filed, January 18, 1887.)
    1. Mandamus. — Appeal — Discbetion op coubt beviewabee by coubt op Appeaes.
    The discretion of the court to grant or refuse the writ of peremptory mandamus is not absolute, but governed by legal rules, and its exercise is subject to review by the court of appeals.
    2. Same — Cannot be used to bectipy judicial decisions.
    When the comptroller exercised a jurisdiction which the law entrusted to him. Held, that-the sufficiency of the evidence on which he acted, cannot be reviewed by mandamus nor the decision of the comptroller in such a case, even if wrong, be so recited. That the writ does not lie to compel an officer exercising such functions to reach any particular decision, or set aside a decision already made.
    8. Same — When denied — Statute op limitation's.
    It is within the discretion of the court- to deuy the writ of mandamus when the delay in moving for it is unreasonable, although the time falls short of the time given for commencing actions. — But after that time, when the delay is unexplained and unaccounted for, it should not be granted after the period fixed as a bar for actions has expired.
    4. Taxation — Invalid tax sale — Repundinh pubchase pbice — What a compliance with laws, 1885, Chap. 427, § 83, 85.
    Where it appears that the state comptroller had conveyed lands sold at a tax sale to the person to whom the bid at the sale had been assigned by the purchaser at said sale, and the sale having been found to be invalid the said comptroller had refunded the purchase price to the assignee, and the person to whom he had sold and conveyed thetitle, etc., in the said lands, Held, that this was a full compliance with the statute and relieved the comptroller from further duty in the transaction.
    Appeal from an ordeivofL-til-3 supreme court general term, second department, reversing the order of tbe special term of Dutchess county refusing a writ of peremptory mandamus.

      Dennis O'Brien, Atty.-Gen., for comptroller, appl’t; Abram J. Bose, for respd’t.

       Reversing, 40 Hun, 336.

   Danforth, J.

By petition, verified October 6, 1885, the relator applied at special term for a peremptory mandamus, requiring the comptroller to pay him the sum of $721.57, the sum, with interest, of moneys paid by a purchaser of 50 or añore lots of land at an invalid tas sale, made in 1859. The application was denied at a special term; but its order was reversed, and the writ granted by the general term. The objection of the relator that the order is not appealable to this court is not well founded. The discretion of the court to grant or refuse the writ is not absolute, but governed by legal rules, and its exercise is subject to review. People v. Common Council of Syracuse, 78 N. Y. 56.

We agree with the special term that the relator failed to show any right to a mandamus. On the contrary, it appears that one Henderson, the purchaser at the tax sale, and who paid the price thereof to the comptroller, assigned his bids to one Yiele, and the coanptroller conveyed the lands by deed to him, as such assignee, on September 15, 1862. The sale was invalid, because the notice to redeem was not in compliance with the statute. Laws 1855, c. 427, § 61.

At various times, between 1864 and 1877, the comptroller refunded to Yiele the purchase price of 12 of the lots now in question. On January 22, 1877, Yiele made an affidavit which, after reciting the conveyance aforesaid to him by the comptroller, stated that on September 28,1863, he sold and conveyed to Johir M. Peck “ all the right, title, or interest acquired by him froan the tax sale of 1859, in the lands conveyed to him by the comptroller, so far as his title had not been destroyed by redemption or cancellation.” This affidavit, with other evidence, was filed on that day in the office of the comptroller, and at different times thereafter, but prior to February 20, 1878, the purchase price of all the remaining lots was refunded by him to the said. John M. Peck. This was, I think, a full compliance with the statute, and relieved the comptroller from further duty in the transaction. By the statute (supra, §§ 83, 85) it is made his duty, upon discovering the invalidity of a sale for taxes, to cancel the sale, and “ refund, out of the state treasury, to the purchaser, his representative or assignee, the purchase money and interest thereon.” It is not necessary to decide whether or not the statute (supra) is limited to the purchaser at the tax sale; and the assignee of the bid or purchase, Yiele stood, indeed, in that relation to Henderson, and with his assent, the money which he did not receive in person was-paid to Peck. Nor is it necessary to decide that the right to reclaim the purchase would or would not pass by a conveyance of the land, -or merely follow the person of the original purchaser; for there was also evidence before the comptroller that Yiele had conveyed the lands to Peck. The sufficiency of that evidence is not to be reviewed by mandamus, nor can the decision of the comptroller, even if wrong, be so rectified. He exercised a jurisdiction which the law entrusted to him. The result complained of was a judicial determination, and the writ does not lie to compel an officer exercising such functions to reach any particular decision, or set aside a decision already made. People v. Chapin, 103 N. Y.-S. C. 3 N. Y. State Reporter, 38. The pro-ppriety of his conduct,however, seems unquestionable. He had be fore him, in legal effect, Henderson, the purchaser, Yiele, his as-signee, and Peck, a claimant with the sanction of Viele, — the only persons who seemed to be connected with the tax sale, and with them, so far as he knew, he might lawfully and was required by the statute to deal.

Upon what, then, is the relator’s contention founded ? On February 13, 1885, Maria L. Osborn, the widow, and children, heirs at law of one Ogden H. Osborn, in consideration of $25, conveyed to him by quit-claim deed the tax lands to which reference has already been made, and Maria L. Osborn, the administratix of Ogden, also upon the same consideration, assigned to him all the interest which her intestate ever had of, in, and to any tax certificate, or to any privilege, right, or benefit under any tax certificate or certificates, and to any and all money which should be or should have been refunded or repaid to said Ogden H. Osborn, or to her administratrix, by the comptroller of the state of New York, for any redemption from tax sale, or cancellation of tax sale, or as grantee or assignee of any purchaser at a tax sale, or for any other cause whatever.

Osboru was grantee of Yiele, under a deed bearing date September 15,1863, acknowledged February 28, and recorded in the proper clerk’s office July 6,1864. ' The learned counsel of the relator argues “ that the comptroller had-notice of this deed, and so is estopped from setting up any subsequent payments.” But I find no evidence of that. The mere record of the deed was not notice. Nor is there any foundation for the assertion that the comptroller recognized its existence in any way. It is said upon the relator’s points that “ the comptroller made a payment to Osborn upon the deed for one* lot, which had been redeemed.” I find nothing of the kind in the case; and the folio to which alone we are referred contains merely a description of the lot, and, in substance, that'its sale was canceled, and $15.68, the amount due, refunded by the comptroller to Ogden H. Osborn, March 21, 1864. Under what circumstances, or why this was done, does not appear. Certainly, there is no reference to a deed or other title acquired by Osborn. It doubtless indicates that Osborn was in some way shown to be entitled to the money; but it has no tendency to show that he was thought to be, or that he claimed to be, entitled to the price paid for any other lot, or to be the assignee of the tax title or the sum bid, or the grantee even of the purchaser or of the as-signee of the purchaser. If any presumption is to be indulged in, it is that he made no such claim; for afterwards, and in the same year, the comptroller refunded to Viele the price of other lots, and, in successive years, the residue as above stated, to Viele or Peck. There is nothing to show that these payments were not made and received in good faith and under the belief on both sides that Viele and Peck were entitled to them. Their conduct indicates that. On the contrary, Osborn, if he had any rights, slept upon them so long that he must be deemed to have acquiesced in the claim of Viele and of Peck, or, at least, to have -consented by his silence and inaction to the dealings of the comptroller with them as the lawful assignees of the purchaser. And, although the statute of limitations does not prevent the issuing of the writ of mandamus, the damage and inconvenience resulting from the lapse of time are to be considered, and the writ should not be granted after the period fixed as a bar for actions has expired, (People v. Common Council, supra : ) and if, as is claimed in behalf of the relator, he has no other legal remedy, his condition in this respect is not improved by that circumstance. When another remedy exists, the writ will not issue. It may also, in the discretion of the court, be denied when the delay in moving it is unreasonable, although it falls short of the time given for commencing actions; but after that time, when the delay is unexplained and unaccounted for, it ought not to be granted. In this case the period of the longest limitation for bringing an action was permitted to pass, — upwards of 20 years from the discovery of the invalidity of the sale to the relator’s purchase. If any right at any time existed in the relator’s assignor, his delay in enforcing it was not only unreasonable, but to the prejudice of others.

Without adverting to other grounds on which the appellant, not without reason, relies, we think the relator’s claim too stale to justify the interference of a court in its favor. The state and its officers are entitled to no less protection than a private litigant.

The order of the general term should therefore be reversed, and the order of the special term affirmed, with costs.

All concur.


author: Finch, J.

text:
    Harmanus B. Hubbard, Ex’r., Appl’t., v. H. M. Sadler et al., Resp’ts.

      (Court of Appeals,

      Filed January 18, 1887.)
    1. MUNICIPAL CORPORATION — STREET IMPROVEMENTS — SUPERVISORS, POWER TO ISSUE BONDS — Laws 1875, CHAP. 482 — Laws 1881, CHAP. 554.
    Laws 1875, chapter 482 as amended by chapter 554 of Laws 1881, gives authority to the supervisors of Kings county, as a local legislature to lay out and construct streets and avenues in the town of New Utrecht and to provide by limited or general assessment for the payment of damages awarded for property. It also authorizes the issue of short-term municipal bonds upon which to borrow money for the payment of the awards.
    2. Same — Eminent domain — Provision eor compensation.
    The resolution of the supervisors acting under said statute authorized the issuing of short-term bonds upon which to borrow money for the payment of the awards in connection w'ith the construction of a certain street. The proceeds of the loan were to be at once devoted to such payment, and the town to be reimbursed by the local assessments, and in case of their deficiency by general taxation. Held, a valid method of providing for the payment for land taken for local improvements.
    Appeal from a judgment of the supreme court, general term, second department, áf&rming a judgment of the Kings county special term, dismissing the complaint in an action for an injunction against an alleged threatened trespass.
    The defendants Sadler, Ferguson and Moore, were appointed grading commissioners, by a resolution of the Board of Supervisors of Kings county, for the opening and grading of 18th Avenue, in the town of New Utrecht, in the county of Kings. Under said resolution they and one Curren, a contractor, claimed the right to build said avenue and to enter upon and take the land of plaintiff’s testator. Plaintiff’s testator brought this action to restrain them claiming among other things that there was no adequate provision made in the resolution for compensating for land taken. During the pendency of the suit he died and the action was revived and continued in plaintiff’s name.

      John D. Pray, for appl’t; William Sullivan, for resp’t.

       Affirming 37 Hun, 644 mem.

   Finch, J.

The constitutional question raised in this case was decided against the views of appellant in Re Church, 92 N. Y. 1, It is now suggested that a difficulty exists not then considered, in the alleged fact that the act of 1875, (chapter 482,) with its amendments, does not authorize the supervisors to issue bonds in order to obtain money with which to pay awards to landowners, and, inferentially at least, forbids such issue. We did not in the case cited discuss that question, but practically decided it when we held that the public purse stood behind the awards, and guaranteed their payment. The statute as amended (Laws 1881) gives authority to the supervisors, as a local legislature, to lay out and construct certain streets and avenues, and to provide by limited or general assessment for the payment of damages awarded for property taken. Under this authority the supervisors acted. They provided, first, for an assessment district of property benefited, upon which, as an area of taxation, the cost of the improvement was imposed ; but, recognizing its possible insufficiency further provided that any deficiency of principal or interest upon the debt incurred by the awards should be paid by general taxation. It is the mode of reaching rather than the substance of this result that is the subject of criticism. The resolution authorizes the issue of short-term bonds, none running longer than six years, and some only two, upon which to borrow money for the payment of the awards. The proceeds of the loan were to be at once devoted to such payment, and the town tobe reimbursed by the local assessments, and in case of their deficiency, by general taxation. To effect this result, the resolution provides “that any deficiency required to meet the principal and interest on said bonds shall be made a tax on the real and personal estate of the town.”

It is now argued that a deficiency upon the bonds is all that is provided for, and payment is due to the land-owner from their proceeds alone, and, if there can be no bonds, there can be no payment. But the local legislature authorized explicitly their issue, and if in doing so it acted within the scope of the statute committing to it upon some such subjects, and within some limits, the powers and duties of a legislature, that is an end of the question. Of course, it is not doubted that the state may confer upon a municipal corporation the power to borrow money if otherwise it did not exist. What it could itself do in laying out, opening, and grading streets and avenues like the one in question it could authorize the local legislature to do, with all its own discretion. It did confer such authority in broad and general terms by the act of 1875 and its amendments. It transferred to the supervisors its own power and authority, as to a particular class of streets and avenues, to fix a plan for their grades; to lay out, open, grade, construct, close, and alter any of them ; to “ provide” for the estimate and award of damages; for an assessment on property benefited; for the levying, collection, and payment of damages, and all other charges and expenses necessary to be incurred.

Control over the whole subject, legislative discretion as to all incidents and details, and the mode of accomplishing the purpose, was thus, in the broadest and most general way, conferred upon the supervisors. Providing for assessments for benefit, and general taxation of the town for any possible deficiency, they could, as they did, and as was right and reasonable, in the interest of the land-owner, anticipate the slow collections of such proceeds by borrowing the money needed for payment beyond the collection of the first 30 days, to pay the awards, giving in exchange the obligations of the town, running only for the comparatively brief period of reimbursement.

Reference is, however, made to subdivision 29 of the act of 1875, which gives authority for the issue of long-term bonds not exceeding 20 years, for the purpose of building and repairing bridges, purchasing turnpike roads or toll-bridges, buying land for a town-hall, and constructing the same, and enlarging cemeteries ; and it is argued that this grant of authority excludes an intention to bestow it in other cases. These are special, and to some extent unusual and extraordinary, expenditures, as to which there might possibly have arisen doubt whether the creation of a long-term bonded debt was a necessary incident-of a general grant of power. It may not have been needed, but, if it was, it seems to have been rather for the purpose of limiting and defining the power of borrowing money which might have flowed from the general grant of authority than of supplying its absence, and cannot, by inference, forbid the borrowing of money for short periods in anticipation of a tax ordered to be laid for reimbursement. Ketchum v. City of Buffalo, 14 N. Y., 376. Practically, the town is authorized to incur the debt to the landowners. It is made responsible for its payment, and authorized to provide the necessary means, and, through the provision for a general tax upon failure of the special assessments, becomes as to the land-owner the real debtor. We think the grant of legislative power was not exceeded by the act of the supervisors in providing, through a temporary loan, for the prompt and immediate payment of the awards pending the ultimate reimbursement by taxation.

No other question is raised in the case and the judgment should be affirmed with costs.

All concur.