author: DYKMAN, J.

text:
    Abijah Weston et al., Resp’ts, v. Daniel G. Brown et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 2, 1895.)

    Sale—Oohditioual.
    Where, in an action for the price of lumber, the contract of sale stipulates that the lumber and the proceeds of all resales thereof by the purchaser shall be the property of the vendor until payment in full, and that all money received by the purchaser for the sale of lumber by him shall be money had and received for the vendor until payment in full of the entire sum, the vendor is entitled to recover moneys received by the purchaser on sale of such lumber, and it is immaterial whether such sales are absolute or conditional.
    Appeal from a judgment in favor of plaintiffs.
    Rudd & Hunt, for appl’ts;
    F. P. Bellamy, for resp’ts.
   DYKMAN, J.

This is an appeal from a judgment in favor of the plaintiffs against the defendants for $117,719.92, entered upon the report of a refereee. The complaint contains fifty causes of action, forty-nine of which are, upon promissory- notes given to the plaintiffs by the defendants on account of lumber. The fiftieth cause of action is for a balance due upon the account for the lumber, for discounts paid upon the paper, and for money paid for freights. The referee found that the lumber which constituted the consideration of the forty-nine notes was a portion of the lumber which was the subject of the acount set up in the fiftieth cause of action in the complaint, and his decision was based upon that account. The defense of the action was that the notes were accommodation paper, and that the lumber for which plaintiffs claim w-as not sold to the defendants, but was consigned to them to bé sold for the plaintiffs. The lumber was shipped by the plaintiffs to the defendants under a written agreement, which provided for a conditional sale, as the plaintiffs claim, and not for a consignment for sale, as the defendants insist. The question arises between the immediate parties to the agreement, and no rights of creditors or bona fide purchasers are involved. It was,however, much more than an agreement for the consignment of goods for sale to the plaintiffs; it was a sale of the lumber, and the obligation of the defendants was absolute, whether it was conditional or not.

It was expressly stipulated in the agreement that:

“All said lumber so shipped, and the proceeds of all sales thereof by said second party, shall be and remain the property of the said first party until the said lumber so sold shall be full paid for by said second party to said first party; and all sums of money received by said second party for the sales of said lumber by him shall be moneys had and received by said first party until a sufficient amount thereof shall have been paid to the said first party by said second party to cancel the indebtedness arising upon the sale of the lumber so sold.”

The referee has limited the recovery to the lumber sold by the defendants previous to the fire, and has not charged the defendants with the lumber which was destroyed thereby. The payment of discounts upon the notes of the defendants was a valid charge against them, as they were given on account of the lumber. The same is to be said respecting the payment for freight upon the lumber shipped to the defendants. As, therefore, the referee has only charged the defendants for the value of the lumber which they sold under the contract, and as it was provided therein that the money received by the defendants upon such sale of lumber should be moneys had and received by the defendants for the plaintiffs, it is quite immaterial whether the sale was absolute or conditional, because the money received upon the sale under the contract belonged to the plaintiffs.

The record presents no error, and the judgment should be affirmed, with costs.

BROTO, B. J., and PRATT, J., concur in the result.


source: Caselaw Access Project

author: MAYHAM, P.J.

license: Public Domain

text:
    In the Matter of an Appraisal under the Transfer Tax Law of the Estate of Katharine J. S. Daeis, Deceased, Mary H. Ingraham, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 3, 1895.)

    1. Wills—Construction.
    Where a bequest is made to a person for life, remainder to her children . who should be living at her death, and she has but one child who was living at testator’s death, such child takes a vested interest at his death, with the right of possession suspended during life of her mother.

      % Tax—Transfer—Valuation.
    Two methods of establishing the value of an inheritance and fixing the transfer tax are provided in the statute,—one by the aid of,an appraiser, and the other by the surrogate without such aid. When one has been adopted, it precludes any resort to the other.
    3. Same.
    , Though the surrogate can fix the taxable value of an estate without the aid of an appraiser or the superintendent of insurance, yet where he appoints an appraiser and on. the filing of his report refers it to the superintendent to determine the value of a future estate, the determination pursuant thereto is binding on the surrogate, and he cannot, on appeal from his order confirming the superintendent’s report and fiixing the value of the estate, make a new valuation, unless his order is in all things reversed.
    4. Appeal—Beview.
    When the part of a judgment or decree which are appealed from can be reviewed on appeal.
    6. Same.
    The part of the decree which fixes the amount of the inheritance or the tax which follows from that amount, cannot be reviewed upon appeal,' where neither of these amounts are specified in the grounds of an appeal in the notice.
    6. Tax—Tbanseeb—When due.
    Though, in case of a vested remainder, the inheritance tax is fixed on the value of the estate when inherited, its collection is postponed until the remainder man succeeds to the beneficial use of the property, and-interest is only chargeable from that time.
    Appeal from an order and decree of the surrogate, reversing a former decree made by him and assessing a tax against the appellant, with interest for a period of eight months at the rate of six per cent, per annum, and after that time at the rate of ten per cent, per annum.
    Maynard, Gilbert & Cone (I. H. Maynard, of counsel), for app’lt;
    Walter N. Gill, for resp’t.
   MAYHAM, P.J.

On the 16th day of January, 1887, Mrs. Katharine J. S. Davis, of Ulster county, died, leaving a last will and. testament, in which she gave to her sister, Mrs. Julia L. S. Ingraham, the mother- of the appellant, all of her' real and personal property, for her sole and separate use and benefit for and during the term of her natural life, and, from and immediately after her decease, the testatrix, by her will, gave, devised, and bequeathed the same to the children of Mrs. Ingraham living at the time of her decease, share and share alike. At the time of the death of the testatrix, Mary H. S. Ingraham was the only child of the legatee and devisee of the life estate najned in the will of the testatrix. On the 2d of February, 1894, Julia L. S. Ingraham died, leaving, her surviving, Mary H. S. Ingraham, this appellant, her only child. The testatrix also left, her surviving, a brother, Harison H. Suydam,- who died September 6, 1893, and a niece, Mrs. De Will, who was a daughter of a sister' of testatrix and who died in July, 1894. The will ¡of the testatrix, Mrs.'Davis, was duly admitted to probate in Ulster county, on the 1st day of February, 1889, in and by which will Julia L. 5. Ingraham-was.named as sole executrix. After the death of Julia L. S. Ingraham, Mary H. S. Ingraham, her only surviving child,filedapetition in the office of the surrogate of Ulster county, asking for the appointment of an appraiser for the purpose of determining the amount of collateral inheritance or taxable transfer tax that should be paid upon the property devised and bequeathed to her under the will of the testatrix, Mrs. Davis. The surrogate thereupon apointed John E. Yan Etten as such appraiser, who appraised the value of the property of Katharine J. S. Davis, the testatrix, at $9,550, without making any deduction for commissions of executor and expenses of administration, which appear to have heen $263.75, and which, when deducted from the amount of the appraised value of the estate, left the balance of $9,286.25 as the value of the property ultimately passing under the will of the testatrix to the possession of Mary H. S. Ingraham, this appelant.

On the filing of the report of the appraiser in the office of the surrogate, an order was made by the surrogate, in pursuance of chapter 399 of the Laws of 1892, referring it to the superintendent of the insurance department to determine the present value of the interest of Mary H. S. Ingraham, as remainder-man, in the personal property in the estate of Mrs. Davis, the testatrix, appraised at $9,286.25, subject to the interest of a life tenant, who was sixty-two years old in January, 1889.

Pursuant to that order and request, the superintendent of insurance department, on the 13th day of October, 1894, filed the following report with the surrogate:

“Sir: In reply to your request of the 11th inst., I give below the present value desired:
Mame. Legacy. P. Y. at Date 1,16, ’87.
Mary H. S. Ingraham, Eemainder, $5,226.
“Yery respectfully, JAMES F. PIERCE,
“Superintendent.
“To Hon. J ames A. Botts, Surrogate Ulster County.”

Upon the receipt of this report, the surrogate made the following order:

“The surrogate of the county of Ulster having heretofore appointed John E. Yan Etten, Esq., appraiser, under and in pursuance of the transfer tax act, to appraise the property of Katharine J. S. Davis, deceased, who died on the 16th day of January, 1887, and the said appraiser having made and filed his report, in the office of said surrogate, on the fifteenth day of October, 1894, and after reading and filing the report of the superintendent of insurance herein dated October 13th, 1894, it is ordered that the said report be, and the same is hereby, approved and confirmed, and the cash value of the property of the said Katharine J. S. Davis, deceased, which is subject to the tax imposed by said act, and the tax to which the same is liable, are hereby assessed and fixed as follows: Property, personal. Person entitled to such property, Mary" H. S. Ingraham. Cash value, $5,226.00. Tax, $261.30. And the county treasurer of Ulster county, pursuant to statute, will add interest at the rate of ten per cent, per annum to amount of said tax from January 16th, 1887, to the date of payment.
JAMES A. BOTTS, Surrogate.” .

This decree was entered on the 15th day of October, 1894. Ori the 11th of December, 1894, Mary H. S. Ingraham appealed to the surrogate from such decree, and incorporated in the notice of appeal thereof as follows:

“From that portion of said decree which directs the county treasurer of Ulster county to add interest at the rate of ten per cent, per annum to the amount of said tax from January 16,1887, to the date of payment. And the grounds upon which this appeal is taken are that the interest is not chargeable or allowable on the amount of said tax at the rate of ten per cent, per annum from January 16, 1887, or from any other date to the date of payment, but that interest is allowable and chargeable upon said tax, if at all, from the date of the death of Julia L. S. Ingraham, which occurred in or about the month of February, 1894, and only at the rate of six per cent, from that date.”

On that appeal the surrogate on the 8th day of June, 1895, made a decree in and by which, after certain alleged facts, he— “Ordered, adjudged, and decreed that the fair and clear market value of the contingent remainder of the estate devised to said Mary H. S. Ingraham, by the decedent, Katharine J. S. Davis, could not be ascertained at the time of the death of the testatrix, but first became ascertainable after the death of the life tenant, Julia L. S. Ingraham, on February 2, 1894. That the contingency annexed to said estate or remainder affected the taxable character of the succession to the same, as testatrix, at her death, left a brother surviving, who might, in the course of events, take such remainder or a portion thereof, and in his hands the same would not be taxable. The decree made herein by the surrogate of Ulster county, and entered in his office on the 15th day of October, 1894, assessing, fixing and determining the amount of the transfer tax to be paid by Mary H. S. Ingraham upon the property or estate received by her under the will of Katharine J. S. Davis, deceased, so far as said decree fixes the cash value of the estate or property received by said Mary IT. S.' Ingraham under the will of the said decedent, Katharine J. S. Davis, deceased, and the amount of transfer tax to be paid thereon, and so far as said decree directs the county treasurer of Ulster county to add and collect interest on said tax at ten per cent, per annum from January 16, 1887, to the date of payment, be, and the same hereby is, reversed. That the estate or property which came to the possession of the said Mary H. S. Ingraham on the death of her mother, Julia L. S. Ingraham, February 2, 1894, under the provisions of the will of said Katharine J. S. Davis, deceased, consisted of personal property, the cash value of which is hereby assessed, fixed, and determined to be the sum of $9,286.25, and the transfer tax thereon is hereby assessed, fixed, and determined to be the sum of $464.31, and that tax accrued on the 2d of February, 1894. And the county treasurer of Ulster county will add and collect interest on said tax at six per centum per annum from the accrual thereof to the time of payment.”

And, if that tax is not paid within eighteen months from the time when the same accrued, the said county treasurer will charge and collect interest thereon at the rate of ten per centum per annum from the time of payment.

From this decree the appellant appeals to this court, and from every part and decree “except that portion which reverses so much of the order and decree heretofore entered in this matter on the 15th day of October, 1894, as directed the county treasurer to add and collect interest on the tax of $261.30, imposed by said order and decree upon the interest of this application in said estate under said will, at the rate of ten per cent, per annum from January 16,1881, to the date of payment.”

Perhaps the first question which presents itself upon this appeal is as to the time of the vesting of the title or interest of the appellant in the estate of the testatrix under the provisions of her will, and as to whether the appellant, on the death of the testatrix, took a vested or contingent interest in the estate.

By section 13, art. 1, tit. 2, pt. 2, p. 2432, 4 Rev St. (8th Ed., Banks & Bros.,), it is provided as follows:

“Future estates are either vested or contingent. They are vested when there is a person in being who would have an immediate right to the possession of the lands upon the ceasing of the intermediate or precedent estate. They are contingent while the person to whom or the event upon which they are limited to take effect, remains uncertain.”

It is true that this provision of the Revised Statutes relates to real estate. But by section 2, tit. 4, p. 2516, of the same volume 'of the Revised Statute the same rule is made applicable to personal property. That section reads as follows:

“In all * * * respects, limitation for future or contingent interests in personal property, shall be subject to the same rules prescribed in the first chapter of this act in relation to future estates in lands.”

It will be seen that by these provisions of the statute, as the appelant, who was remaider-man, under the will, was in existence at the time of the death of the testatrix, she would have taken her interest' immediately but for the intervening life estate of her mother, Julia L. S. Ingraham. Her estate was therefor a vested remainder, with the right of possession suspended during the "life of her mother. The value of that estate at the time the title vested was fixed under the order of the surrogate, by the superintendent of insurance, at the sum of $5,226; and upon that adjustment the succession tax was adjusted, under the provisions of statute, at $261.30.

By the provisions of section 13 of chapter 399 of the Laws of 1892, “the superintendent of insurance shall on the application of any surrogate, determine the value of any such future or con tin-gent estates, income or interest, limited, contingent, dependent or determinable upon the life or lives of persons in being upon the facts contained in any such appraiser’s report, and certify the same to the surrogate, and his certificate shall be conclusive evidence that the method of computation adopted therein is correct.” The statute requires that notice of the proceedings for the ascertainment and appraisal of such property be given, and witnesses may be examined on the part of any interested party in such property or the tax that may be assessed on the same.

No objection or exception to the report of the appraiser was taken by the "county treasurer or the appellant, and no objection to the tax imposed, except that the appellant objected to the 'interest, and the rate of interest, which -the county treasurer was directed to collect upon the amount of the tax assessed by the surrogate. The appellant now insists that the proceedings by and before the surrogate in fixing the amount of this tax were res judicata, and that the surrogate had no jurisdiction or authority, in deciding the appeal from that part of his order fixing the rate of interest on the'tax, to. reopen the question of the value of the inheritance, and make a new valuation of the estate passing to her, liable to taxation. In answer to this position of the appellant, it is insisted “that the surrogate may determine the cash value of' such estate, and the amount of tax to which the same is liable, without appointing an appraiser;” and that, under that provision of section 13 above referred to, the surrogate was authorized, on the appeal taken to him, to determine the value and estimate the amount of the tax.

I do not think that that section of the act of 1892 will bear any such construction. Two methods of establishing the value of the inheritance and fixing the tax are provided in that section,—one by the aid of an appraiser, and the other by the surrogate without such aid. Either method is complete in itself, and, when one has been adopted, it precludes any resort to the other. Any other construction would render the duel methods fixed by the statute inoperative and meaningless; and unless the appraisal fixed by the appraiser, and the value of estate of the appellant as fixed by the superintendent of insurance, and the assessment of tax made thereon by the surrogate, were in all things reversed and set aside by the surrogate in his order made on the appeal to him by this appellant, his power to fix the amount of the inheritance had been transferred to the superintendent of insurance, and could not be resumed by him, and his assessment made thereon could not be revoked.

This brings us to the consideration of the nature and effect of the appellant’s appeal to the surrogate. It is claimed by the appellant that that appeal brought before the surrogate for review only the question of interest, which, by that order, the treasurer was directed to collect upon the tax as fixed by the surrogate, on the report of the superintendent of insurance, based upon the inheritance as fixed by the appraiser. Section 18 of chapter 399 of Laws of 1892 provides that the notice of appeal “shall state the ground upon which the appeal is taken.” As we have seen, the notice of appeal states as follows:

“And the grounds upon which this appeal is taken are that the interest is not chargeable or allowable on the amount of said tax at the rate of ten per cent, per annum from January 16, 1887, or from any other date to the date of payment; but the interest is allowable and chargeable upon said tax, if at all, from the date of the death of Julia L. S. Ingraham, which occurred in February, 1894, and only at the rate of six per cent, from that date.”

This appeal would have been ineffectual if it had not, as required by that section, stated the grounds upon which it was brought, and, as the question of interest was the only one brought up for review, we do not see any authority in the surrogate to review and reverse that part of the order as to which no appeal was taken, especially as the report of the superintendent of insurance is by statute made conclusive as to the methods adopted by the superintendent in fixing the value of the remainder to which the appellant is entitled.

. So far as we know, the rule is universal, to which there seems to be no exception, that only the parts of a judgment or decree which, are appealed from can be reviewed on appeal. In Robertson v. Bulliona, 11 N. Y. 246: “The court can only review parts' of the decree from which an appeal is taken.” And the same effect is Kelsey v. Western, 2 N. Y. 500. This is a statutory rule, and seems not to have been departed from. That part of the decree which fixes the amount of the inheritance, or the tax which followed from that amount, cannot be reviewed, as neither of those amounts are specified in the grounds of appeal in the notice. As the statute requires, as we have seen, the notice of appeal to state the ground upon which it is taken, the order cannot be reversed upon grounds not stated.

In Avery v. Woodbeck, 62 Barb. 557, when, in an appeal from a judgment rendered in justice’s court, section 353 of the Code of Procedure required “stating the grounds upon which the appeal is f ounded,” and the appellate court was asked to reverse upon grounds not stated in the notice of appeal, Potter, J., in his opinion, after quoting the language of the section of the Code, puts these significant questions:

“'What is the use of this provision? What was intended by it? Does it mean nothing? If it meaars something, what docs it mean? Can the court hold that, notwithstanding this positive language, this specific requirement is useless; that the court can reverse for grounds not stated, as well as those which are; that it is a nugatory provision; that the supreme court may reverse or affirm the judgment upon other grounds than those complained of?”

And the learned judge, after putting these questions, which was one of Ms forceful ways of illustrating a proposition, holds that the judgment can only be reversed upon the grounds of error-alleged in the notice of appeal.

To the same effect are Bush v. Dennison, 14 How. Prac. 307; Lee v. Schmidt, 6 Abb. Prac. 183; Fowler v. Milliman, 2 Hun, 408; Slingerland v. Bronk, 47 How. Prac. 408.

The rule laid down in these cases is not changed by section 2587" of the Code of Civil Procedure.

Within these authorities, we are of the opinion that the learned surrogate erred in assuming to review and reverse his order on grounds not stated in the notice of appeal, and as to part of the-order which had been taken either by the appellant or the county officer representing the people, by whom no appeal had been taken.. In doing so, the. learned surrogate • acted without evidence, and in direct opposition to the certificate of the superintendent of insurance, whose certificate is by the statute made conclusive evidence, and, too, so far as appears by the case, without any hearing on the part of the appellant, whose tax was nearly doubled by the surrogate’s determination.

The remaining question is whether the surrogate erred in his-first order, in and by which he directed the county treasurer to “add interest at the rate of ten per cent, per annum to the amoqnt of said tax, from January 16, 1887, to the date of payment.” • If we are right in holding that the title to this property vested under the will in the appellant at the death of the testatrix, then the-only remaining contingency was as to the time of vesting in possession; and, if the appellant had not survived her mother, the possession after the termination of the life estate would pass under the will of the appellant, or, if she died intestate, to her personal representatives or next of kin, and could in no event pass to the surviving brothers and sisters of the testatrix. She was, therefore, on the death of the testatrix,, the complete and indefeasible owner of the estate in remainder bequeathed to her, the value of which, as we have seen, was fixed -by order of the superintendent of insurance. Did the postponement of payment by reason of the existence on an intervening life estate postpone the payment of tax?

By the provisions of section 2 of chapter 483 of Laws of 1885, the value of the life estate bequeathed to Julia L. S. Ingraham was at the death of the testatrix carved out of the corpus of the estate, and was exempted from taxation under that act, from the inheritance tax imposed by f-hat act. The balance of the estate, which was bequeathed to Mary H. S. Ingraham, this appellant, passed toiler as a vested remainder, and the value of her interest was by that section required to be immediately appraised.

The language of that section on that subject is as follows:

“The property so passing shall be appraised after the death of the decedent in the manner hereinafter provided, and after-deducting therefrom the value of said life estate or term of years-the tax prescribed by this act on the remainder shall be immediately due, and payable to the treasurer of the proper county, * * * and together with the interest thereon shall be and remain a hen upon said property until the same be paid.”

The same section makes provision for postponement of the payment of the tax by the remainder-man until the possession or enjoyment is obtained.

Section 4 of chapter 713 of the Laws of 1887 imposes, by way of penalty, interest at the rate of ten per cent, per annum, from the time the tax accrued, if not paid, within eighteen months, and that all tax, unless otherwise provided, shall be due and payable at the death of the decedent. Section 5 of this act provides that, in case of unavoidable delay, the estate of the decedent, or any part thereof, cannot be settled within eighteen months from the death of the decedent; that interest at six per cent, shall be chargeable after the expiration of eighteen months from the death of the decedent. It is.insisted by the learned counsel for the appellant that, under the circumstances of this case, the payment of the tax was postponed until the death of the legatee of the life estate, February 2, 1894, and that it was error to impose the penalty for failure to pay the tax of the ten per cent, interest from the death of the decedent; and they cite In re Curtis, 142 N. Y. 224; 58 St. Rep. 348, and In re Roosevelt’s Estate, 143 N. Y. 120; 62 St. Rep. 130, in support of that contention.

In re Curtis, supra, it was held that:

“If that technical vesting be admitted, what so passed was. rather a technical possibiltiy than a tangible reality, for the life estate was in the trustee; for, the daughter carrying the whole beneficial use, there was no power over it in the contingent remainder-man, and the nominal and technical fee might never become a taxable estate. It was never intended by the law to tax theory having no real substance behind it * * * Where it is only in the chance of uncertain events that the beneficial interest will finally alight, where they will be taxable at all, a delay until the contingency is solved is both just and necessary. This was substantially just and necessary. This was substantially the view taken by the general term, and it seems to me to be clearly right and just. It protects and preserves the interest of the devisees and legatees, on the one hand, and the rights of the state, on the other.”

The reasoning of this case, as well as the result reached in it, would seem to postpone the time of payment of the tax in the case at bar until it’ vested in the residuary legatee in possession on the death of her mother. It is true, as we have seen, the title passed at the death of the testatrix, but the beneficial use was postponed until the termination of the life estate. As it was all personal property, subject to the control of the life tenant, who was the executrix, the whole estate might have been squandered before the remainder-man could reduce it to possession; and the remainder-man, if compelled to pay the penalty of interest at ten per cent, for omitting to pay a tax on property to the use of which she was not entitled, would be giving a harsh construction, which could not have been contemplated by the legislature.

In re Roosevelt's Estate the question was whether the payment of the tax by the remainder-man must he made on the death of the testator, or could be postponed until the property vested in him on the death of a person having a life estate. Bartlett, J., says: “It is not to be assumed that the legislature intended to compeí the citizen to pay a tax on an interest he may never receive; and the reasonable construction of the act leads to no such unjust result.”

In re Hoffman’s Estate, 143 N. Y. 335; 62 St .Rep. 245, Finch, J., in discussing the question of the time at which the inheritance tax may be demanded, says: “The state will get the tax when the legatee gets the property.”

Within the liberal construction given by the court of appeals to the rights of remainder-man under th eprovision of the taxable transfers of property, we are forced to the conclusion that the tax for which the appelant is liable was postponed until the death of the life tenant, when she became entitled to the possession, and that the learned surrogate erred in reversing the order and decree of October 15, 1894, whereby the cash value of the inheritance of the appellant was fixed at $5,226, and the amount of tax on the same at $261.30, and in re-estimating the value of the inheritance at $9,286.25, and in assessing a tax based upon that valuation, and that the order and decree appealed from should be wholly reversed.

The order and decree of the surrogate of October 15, 1891, should be modified by striking out of it the provision that the county treasurer will add interest at the rate of ten per cent, per annum to the amount of the tax, from January 15, 1887, to the date of payment, and inserting, in lieu thereof, interest at the rate of six per cent, front February 2, 1894, the date of the death of the life tenant, to the date of payment; and, as so modified, that order and decree should be affirmed, with costs and disbursements of this appeal to the appellant.

All concur.


author: MAYHAM, P. J.

text:
    In the Matter of a Proceeding for the Taxation of the Estate of Emeline P. Nichols, Deceased.

      (Supreme Court, General Term, Third Department,

      Filed December 28, 1895.)
    1. TaX—Tbansfee—Exemptions.
    The exemption in favor of persons, to whom decedent stood in the mutually acknowledged relation of parent, is not restricted to bastard children.

      2. Same.
    The general words in section 2, chapter 399 of 1892, were intended to embrace a class of persons who, while not in fact sustaining the blood relation of parent and child, had assumed and adopted that conventional relation for ten years. So held, in case of beneficiaries, not of kin to testatrix, who had been reared by her as her children, had adopted her name, had lived with her for more than ten' years before the transfers to them, and were referred to in the will as “ having lived many years in my family, and married therefrom, and regarded as my children.”
    Appeal from an order and decree, dismissing an appeal "by-the executor and certain legatees from a decree fixing a tax on the property bequeathed some of the legatees.
    John B. Holmes, for app’lts;
    N. H. Browning, for resp’t.
   MAYHAM, P. J.

The appraiser appointed by the surrogate, under the provisions of chapter 399 of the Laws of 1892, fixing the fair market value of that portion of the real and personal estate devised and bequeathed to the devisees and legatees in whose behalf tins appeal is taken as follows: To Josephine Beers, real éstate, $1,000, and personal property, $7,624.68; to Carrie N. Childs, real estate, $1,000, and personal property, $7,624.88; to Phoebe 8. Wallcor, real estate, $1,000, and personal property, $7,750.08. The correctness of these appraisals is in no way questioned or in controversy on this appeal. On these appraisals the surrogate imposed a transfer tax of five percent., and, from the order fixing such tax, this executor and each of the above-named devisees and legatees appealed to the surrogate, claiming in such appeal that these legatees should only be taxed one per cent, on the clear market value of the personal property transferred to them under and by virtue of the will, and that nothing should he taxed upon the real estate devised to them, for the reason that, for more than ten years prior to the transfer, such devisees and legatees had stood in the mutually acknowledged relation of parent and child with the testatrix. That appeal was brought to a hearing, and on such hearing it was shown by undisputed testimony and evidence that each of the devisees and legatees who'are appellants herein were in infancy taken by the testatrix into her family, and were in all things reared, educated, and provided for as her children, were called by her name, and adopted the same, and were treated as her children, and as sister, although the case does not disclose that they were in any way of kin to her or to each other, and that each of them so lived in her family, and occupied that relation to her and to each other, for more than ten years; that the testatrix spoke of and to them as her daughters, corresponding with them by letter as such, and, on thoir marriage, furnished each of them, respectively, with an outfit and wedding, gave them birthday and holiday presents, as is customary between parent and children; and testatrix in her will referred to them as “having lived many years in my family, and married therefrom, and regarded as my. children.” On such appeal the surrogate affirmed the order and decree appealed from, and dismissed the appeal, and from that determination appellants appeal to this court.

The only question presented on this appeal for determination is whether, under the provisions of section 2 of chapter 399 of the Laws of 1892, the testatrix, “for not less than ten years prior to such transfer, stood in the mutually acknowledged relation of parent” to these appellant beneficiaries under her' will, within the meaning of the" provisions of that section. There are three distinct classes exempted from the succession tax of five per cent, by section 2 of chapter 399 of the Laws of 1892: (1) The persons expressly named in that section, being the father, mother, child, brother, sister, wife, or widow of a son, or husband of a daughter, of the testator, donor, or grator, and the lineal descendants of such decedent, grantor, donor, or vendor, born in lawful wedlock. (2) -Any child or children adopted by decedent, grantor, donor, or vendor in conformity with the laws of this state. (3) Any person to whom any such decedent, grantor, donor, or vendor, for not less than ten years prior to such transfer, stood in mutually acknowledged relation as parent.

It is Conceded that the appellants do not come within the first or second class above enumerated, but it is insisted that the appellants, who are devisees and 'legatees in this case, are persons as to whom the testatrix stood in the mutually acknowledged relation of parent for more than ten years prior to the making of the devise and bequests to them in the will, and are therefore exempt from the five per cent, succession tax. If this exemption can be based simply upon the mutually acknowledged relation of parent, without the existence of that relation in fact, a stronger case for its allowance than the one under consideration cannot well be imagined. But it is insisted by the learned counsel for the respondents that “the mutually acknowledged relation of parent” is not enough, unless it prove the parentage in fact; and in support of that contention he cites In re Hunt, 86 Hun, 232; 66 St. Rep. 812, and claims that that is a case precisely in point, and decisive of - this question. The great respect entertained by this court for the opinion of the distinguished judge who pronounced the opinion of the court in that case, and for the learned judges who, in that department, concurred in his opinion, as well as the desire of this court to follow well-considered opinions pronounced upon the same question in other co-ordinate departments of this court, furnish sufficient reason for this department to follow the decision in that case, provided, on examination, it shall be found that the case under consideration is identical in principal and fact .with the cáse to which we are referred.

On careful examination of the case of In re Hunt, supra, we think it distinguishable from the one at bar in many important particulars. It does not show that the beneficiary named in the will had lived in testator’s family, ten years prior to the bequest, in the mutually acknowledged relation of a parent, or that the decedent and legatee had ever recognized the existence of such family relation. On the contrary, the testator in his will speaks of her as his niece, and does not appear to have assumed towards her at any time the relation of parent, and there does not appear to have been anything in their relation to warrant the inference that she lived with him in loco parentis. There is no doubt, therefore, of the correctness of the determination of the.court in that case, and, as the exemption in the statute did not apply to that case, the court was not necessarily called upon to determine what person or class of persons came within the exemption, so long as it did not embrace the person named in the will, and we think the remark of the judge that tended to limit this provision of the statute to illegitimate children, and expressly his statement that “all the clause in question seems to have intended to cover was the case where an illegitimate child had been recognized by its parents, and such recognition was mutual, and had continued for ten years,” was not necessary for the decision of the case he was considering, and was, therefor, obiter.

If we are right in our conclusions that the Hunt Case differs from this, and that the statement of the judge, above quoted, was not necessary to the determination of that case, then we may, without questioning the correctness of the result, examine this statute, as applicable to the case at bar, without impugning the correctness of that decision. We are therefore at liberty to examine this statute as an original proposition, and in the light of all the adjudications bearing upon the case. Section 2 of chapter •399 of the Laws of 1892 reads as follows:

“When the property or any beneficial interest therein passes by such transfer to or for the use of any father, mother, husband, wife, child, brother, sister, Avife or widoAv of a son, or husband of ■a daughter, or any child or children adopted as such in conformity with the laws of this state, or the decedent, grantor, doner, or vendor, or to any person to whom any such decedent, grantor, donor, or vendor, for not less than ten years prior-to such transfer, ■stood in the mutually acknowledged relation of parent, or to any lineal descendant of such decedent, grantor, donor or vendor, born in lawful wedlock, such transfer of property, shall be taxable under this act, unless it is personal property, of the value of ten thousand dollars, or more, in which case it shall be taxable under this act, at the rate of one per centum on the clear value of such property.”

If this language is capable of construction as it stands, with■out intérplotation, or importing into it any idea or language not clearly expressed or contained in its wording, it is the duty of the court so to construe it. The legislature is presumed to use apt words to express the meaning and intent of its enactments, and it is ordinarly the duty of the court, in constructing the acts of the legislature, to give the language employed its usual and ordinary signification and force. Tested by this rule, what was the intent of the legislature where in this act they used the words extending this exemption “to* any person to whom any such decedent, grantor, doner, or vendor for not less than ten years prior to the transfer, stood in the mutually acknowledged relation of parent?” Did the legislature, in the use of the words “any person,” employ them in the general sense which the words themselves clearly import? Or did they intend that the court, in construing that general expression, should interpolate between the adverb and noun the qualifying adjective “illegitimate,” so that it should read and mean “any illegitimate person,” etc. ? If that was not the legislative intent, then the insertion of that word by the court would, it seems to us, be'unauthorized judicial legislation. It seems clear to us that the use of these general words was intended to embrace a class of persons who, 'while not in fact sustaining the blood relation of parent and child, had assumed and adopted that conventional relation, by mutually acknowleging it by their method of living, and mutual recognition of that relation for ten years. It does not seem to be the fact of the existence of the relation, but the acknowledgment of its existence for the time fixed, which controls the right to the exemption from this tax. The existence of the relation to the decedent, donor, grantor, orWendor of the kinsmen by consanguinity or affinity, or actual adoption, according to the laws of the state, entitled the persons designated to the exemption, without regard to the time of the existence of such relations, while the acknowledged relation of parent, to be effectual for that purpose, must be for a period of ten years. ■ There is no apparent reason for that extended period, if the relation of parent and child existed in fact, although the beneficiary was not born in lawful wedlock, and the paternity ormaternity in fact was intended as the only ground of exemption. But when the relation of parent was the result of conventional arangement, mutual acknowledgment of the existence of that relation for a period of ten years would be conclusive evidence of its existence. While it is true that the existence of such a conventional arrangement would not allow the child to inhert the estate of the decedent, in the absence of testamentary provision in its favor, still there are many cases in which the law recognizes and gives effect to a presumed or implied obligation growing out of such relation, where the parties stand in loco parentis; and. it may be assumed that, in enacting this statute, the legislature had in view the existence of such obligations.

It is urged by the respondent that, as the legislature refers in this section to children born in lawful wedlock, they must have had in mind illegitimate children, and that hence the provision of the act under discussion must have related to such persons; but it may, with equal, and, perhaps, more, force, be urged that, as such children were in contemplation by the legislature, if it had intended this provision to apply to them solely, it, instead of using the phrase “to any person,” would have said “ to any illegitimate person,” and thus limited the effect óf the word “any” to that class of persons. We are therefore led to conclude that the language used was not intended to restrict their exemption to illegitimate children alone, but was intended to cover "cases of children adopted in fact, and where the mutually acknowledged relation of parent had existed for ten years prior to the transfer. This view is strengthened by some of the adjudications upon the collateral inheritance or succession tax law. In re Butler, 58 Hun, 400; 34 St. Rep. 189, it was held that, where the decedent had adopted a boy three years of age, under the laws of the state of Massachusetts, who lived with the testator for eleven yeas when the testator died, having bequeathed to the boy about $50,000, that the bequest was not chargeable with the collateral inheritance tax, under chapter 483 of the Laws of 1885, as amended by chapter 713 of the Laws of 1887, which provided that:

“Any child or children adopted as such in conformity with the laws of the state of New York, or any person to whom the deceased, for not less than ten years prior to his or her death, stood in the mutually acknowledged relation of parent.”

And Dykman, J., in delivering the opinion of the general term in the second department, in discussing that case, uses this language:

“There is no reason for a sever construction of this statute. The boy was legally adopted under laws substantially similar to our own, so far as the mode of procedure is concerned, and that is sufficient to answer the requirements of this law. Moreover, the decedent stood in the mutually acknowledged relation of parent to this appellant for .eleven years and a half prior to his death. No evidence of, adoption is required by this portion of the statute, but mutual acknowledgment, and that is proven in this case by all the facts which cluster around these parties from the commencement of their relation to the death of the testator.”

The provision of chapter 713 of the Laws of 1887 upon this subject is substantially identical with the provisions of section 2 of chapter 399 of the .Laws of 1892, and there is a marked similarity between that case and the one at bar in reference to the mutually acknowledged relation of parent; and, if in that case no evidence of legal adoption was required, the same must be true of this. The learned judge, in his opinion in Re Butler, supra, quotes with approbation the opinion of Kennedy, Surrogate, in re Spencer, 21 St Rep. 145, in which it was held that the relation of one who stands in the place of a parent may arise by virtue of an agreement between adults, or from circumstances surrounding the commencement and continuance of such relations; and it was the intent of the law to give this class of cases the benefit of its exempting clause. In re Wheeler, 22 N. Y. Supp. 1075, Davis, Surogate, held that one who was brought up by the testator from childhood, and treated as one of his family, although not adopted by him, is one to whom he stood in the relation of parent, within the meaning of section 2 of chapter 399 of the Laws of 1892. None of these" cases are referred to or considered in re Hunt, snpra, hut each is more directly in point with the case under consideration, and more in accord with our views of the construction of this statute. We are, therefore, of the opinion that the learned surrogate erred in affirming the order appealed from, and dismissed the appeal. The order and decree of the surrogate, made and entered on the 16th day of July, 1895, assessing the tax at the rate of five per centum on the value of property appraised to Josephine Beers, Carrie N. Childs, and Phoebe Walker, appellants herein, and the order dismissing their appeal, made and entered on the 28th day of September, are reversed, and the order of July 16th so modified as to impose a tax of one ■per centum on the appraised value of the personal property bequeathed to the said appellants, respectively; and the real estate devised to them, respectively, should be exempted from any succession tax, with costs and disbursements to the appellants on this appeal.

All concur.


author: BRADLEY, J.

text:
    Harmon H. Howell, Resp’t, v. Grand Trunk Railway Company of Canada, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed December 28, 1895.)

    1. Carriers—Passenger—Baggage.
    A railway company, which gives a passenger a stop-over privilege at intermediate points, is not compelled to handle and reload his baggage. So held, in the case of a passenger, who purchased a ticket from a railway company and obtained leave to stop over until next day at an interrpediate station, and requests that his baggage be unloaded there, which was not assented to, and it is carried through to the point of destination named in the ticket.
    A Pleading—Amendment—Appeal.
    Where a variance between the complaint and the evidence is objected to by defendant on the trial, the court cannot, on review, treat the pleadings as amended, so as to conform to the facts found, for the purpose of creating error and reversing a judgment.
    Appeal from a judgment in favor of defendant in each case.
    Dilworth M. Silver, for app’lts;
    George F. Brownell, for resp’t.
   BRADLEY, J.

On January 2, 1883, the plaintiff in each of the actions purchased at Blythe, a passage over the defendant’s railroad from that place to Suspension Bridge, N. Y., and delivered to the defendant his baggage to be carried to the same destination. The baggage was transported to the latter place, and on the night of that day was destroyed by fire. On its arrival there, the baggage was taken into the possession of the customs officers of the United States, pursuant to the statute and regulations of that government relating to customs, and remained in the possession and custody of those officers in. the room appropriated to such purpose, at the time of the loss by fire, which destroyed the building in which the baggage then was. The property was not in the possession or under the control of the defendant at the time of the loss; nor was it in any sense the fault of the defendant that it was not so. On the arrival from Canada into the state of Hew York, it was taken into the possession of such custom officers, as was usual and required by the customs and navigation laws of the United States and the regulations adopted by the secretary of the treasury pursuant to such laws. The defendant, therefore, is not liable as a common carrier for the loss, unless it may for some cause be attributable to its negligence. It is not claimed that the fire was chargeable to any fault on its part. The depot building to which the baggage was transferred,and in which was the customs room, was the property of the Hew York Central &Hudson River Railroad Company, to which the defendant had the right of trackage.

It, however, is urged by the plaintiffs’ counsel that the defendant became liable by reason of its failure to observe the directions of the plaintiffs to take the baggage from the train at the intermediate station known as “London,” where they stopped .off over night. When they purchased their tickets, at Blythe, the plaintiffs intended to stop over night at London, and go f orward the next day to Suspension Bridge, which they were permitted to do. They testified, and the referee, on the requests made on their behalf, respectively found, that they told' the defendant’s agent at Blythe to check the baggage to London, which he failed to do, but checked it through to Suspension Bridge, and that, on the arrival at London, they requested the defendant’s agents and employes to take that baggage from the train, which was refused. The agent at Blythe did not promise or consent to check the baggage to London, but checked it to the place of- destination of the plaintiffs, as represented by their pasasge tickets. This was in accordance with the rule of the defendant, which provided that ■“baggage men must see the passengers’ tickets before checking baggage, and baggage must only be checked to the place for which a passenger holds a ticket.” As checks on baggage indicate its, destination on a train, it cannot as matter of practice, with propriety or prudence, be taken off by the employes of the railroad company, and left at an intermediate station, without special directions from it to that effect. When baggage has reached its place of destination, as indicated by checks upon it, the company is at liberty to assume that the person presenting the check is owner of the property, and the delivery to him is justified; but a different question might arise if a person, having clandestinely obtained possession of the check from the owner, should be permitted to to take the baggage at an intermediate place or station. The rule before mentioned was a. reasonable one. While the plaintiffs may not have known of its existence, they understood that the agent at Blythe did not consent to check their baggage to any place other than Suspension Bridge, and the fact that it was checked to that place furnished some reason for them to apprehend that they would be unable to have it taken off the train at London: The contract was to carry the plaintiffs and transport their baggage to Suspension Bridge. They had permission to stop over night at London, and resume their passage the next day. This interruption permitted in their passage upon the tickets did not necessarily include the baggage.

It is true that a person seeking passage for his property has the right to prescribe the route and the manner of its transportation when more than one route and different means are open to the common carrier, and for the consequences resulting from failure to observe such direction the carrier is responsible. Goodrich v. Thompson, 44 N. Y. 324; Isaacson v. Railroad Co., 94 N. Y. 278. But that proposition has no essential application to the situation in the present case. The plaintiffs desired to have the baggage taken by the route on which it was transported, and the right to have it so done was derived from the contracts, as represented, by their tickets, for a continuous passage to the place of destination. It is not seen that the mere privilege, extrinsic the contract, which permitted the passengers to stop off over night at an intermediate station, and resume their passage the next day, afforded to them the right to require the company to unload and reload their baggage at such station. Our attention is called to Railway Co. v. Lyon, 123 Pa. St. 140. There the company refused to sell to the defendant in error a passage ticket to Birmingham station, where the train uniformly stopped for passengers to alight in the city of Pittsburgh; and he was required to take a ticket for a station further on, and known as the “Union Depot,” within the city. The company’s agent also declined to check his baggage to Birmingham station, and checked it to the destination mentioned in the passage ticket. The court very properly held that the rule of the company requiring its agents to refuse to sell tickets and check baggage to the intermediate station was unreasonable. The doctrine of that case would have been applicable to the present one if the defendant had declined to sell to the plaintiff a passage ticket to London. This the defendant was neither requested nor refused to do. That case, therefore, does not seem to have any necessary application to the one at bar.

The action, however, is not founded upon any alleged default in not yielding to the request of the plaintiffs to permit the baggage to lay over at London until the following day. They, by their complaints, allege that the defendant received the baggage at Blythe, Canada, to be carried from there to Suspension Bridge, in the state of Hew York, and that, by the negligence and improper conduct of the defendant, the baggage was lost. The question that the plaintiff must rely upon the cause of action as alleged was raised at the trial by the defendant’s counsel. Ho motion was made for leave to amend the complaints. It is now urged that the complaints may, on this review, be amended so as to conform the pleadings to the proofs. This might be done if it appeared that the parties had consented to try and have the action determined upon an issue not within that alleged in the pleadings; but that, as has been observed, is not the situation. In support of a judgment, a court may, on review, treat pleadings as amended, so as to conform the facts found, when it can be done without overruling an exception well taken upon the question of variance between the pleadings and proofs. Pratt v. Railroad Co., 21 N. Y. 305. But that rule does not apply with the same force to creat error, and for the purpose of reversal of a judgment. The cited case of Hudson v. Swan, 7 Abb. N. C. 324, was reversed (83 N. Y. 552). The referee, in his determination of the case, treated the action as founded upon the cause of action alleged in the complaint; and there was no error in his conclusion that it was not sustained by the evidence.

The judgment should be affirmed.

All concur.


author: PER CURIAM.

text:
    David Zenner et al., Resp’ts, v. George W. Dexter, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    Venue—Convenience op witnesses.
    The place of trial for the convenience of witnesses will be changed to the county in which occurred all the transactions on which the right to maintain replevin is based, and of which the witnesses will be principally residents.
    Appeal from an order, denying a motion to change the place of trial from Onondaga to Chenango county on the ground of convenience for witness.
    John W. Church, for app’lt;
    Wilson, Wells & Cobb, for resp’ts.
   PER CURIAM.

We think the order appealed from should be reversed. The action was replevin, to recover certain goods sold by the plaintiffs to the defendant’s grantor, and by the latter sold and transferred to the defendant. The original sale was by an agent of the plaintiffs, in the county of Chenango, and the goods were delivered there. The sale by the purchaser to the defendant was also made in that county. The plaintiffs, by this action, seek to disaffirm the original sale and recover the goods, upon the ground that they were fraudulently obtained of them by the defendant’s grantor, and that he fraudulently transferred them to the defendant. It is rendered quite manifest from a reading of the papers contained in the appeal book that, on the trial, no serious question as to the sale and delivery of the goods by the plaintiffs to the defendant’s grantor will be raised. Obviously, the only issues to he tried in this case are: (1) Whether the defendant’s grantor fraudulently purchased the goods in question; and (2) whether the defendant was a purchaser of them in good faith. 'As the sale by the plaintiff was made in Chenango county, if the purchaser was guilty of any fraud it was perpetrated there. Indeed, practically all the transactions between the parties to sufeh sale took place in the county of Chenango. Again, all the transactions relating to the sale of the goods to the defendant occurred in Chenango county. It seems very improbable that any witnesses out of that county will be called upon the issue as to the good faith of the defendant’s purchase or as to the good faith of the original purchase. A careful examination of the papers contained in the appeal book has led us irresistibly to the conclusion that the witnesses that will be examined upon the trial of this case must and will consist principally of residents of Chenango county, and that their convenience requires that the place of the trial shall be changed to that county. We think the defendant was not guilty of any such laches as should defeat this motion. The delay was sufficiently explained by the affidavits used upon the motion.

Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs, to abide the event.


text:
    Edward H. Utter, Resp’t, v. James D. Nelligan. App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December, 1895.)

    Aífeal—Justice’s court—Hew trial.
    On an appeal from a judgement of the justice’s court to the county court for anew trial, payment of a counterclaim subsequent to such appeal may be shown on the new trial in the county court, without an amendment of the pleadings.
    Appeal from a judgment entered in favor of plaintiff.
    Halliday & Denton, for app’lt;
    Newman & Blood, for resp’t.
   PER CURIAM.

This is an appeal from a judgment of the Tompkins county court in favor of the plaintiff, and from an order denying a new trial, made upon the minutes of the trial judge. The action was originally commenced in a justice’s court to recover rent for the use of a house and lot owned by the plaintiff. The trial in justice’s court resulted in a judgment for the plaintiff for $19.50 and costs. The defendant appealed to the county court for a new trial, which resulted in a direction of a verdict for the plaintiff for the same amount, with costs. The defendant rented the plaintiff’s house of Joseph Utter and A. J. Q-lanister, who were the plaintiff’s agents, for seven and one-half months, at three dollars per month. He never paid the plaintiff or his agents any portion of the rent, but claimed to have made repairs upon the premises of the value of $112, under an alleged agreement with the plaintiff’s agents to pay him therefor. The agents denied that there was any such agreement except for the allowance of one month’s rent for some slight repairs that he was permitted to make. On September 4, 1894, the defendant brought suit against the plaintiff’s agents to recover for such repairs. The agents set up a general denial, payment, and offset for one mouth’s rent, and upon the trial in justice’s court, on September 24, 1894, a verdict was rendered for the defendant therein. On the 26th of the same month, this action was brought in justice’s court to recover for six and one-half month’s rent. The defendant set up a general denial, payment, and a counterclaim for the same repairs as those upon which he brought action against the plaintiff’s. agents. Judgment was rendered for the plaintiff. In October, 1894, the defendant appealed both of said actions to the Tompkins county court. The action against the plaintiff’s agents was first tried in that court, and resulted in a verdict of thirty dollar’s for the plaintiff therein, which sum, with costs, was paid by the plaintiff in this action on March 9, 1895. In the following May, this action came on for trial before the county court. On the trial the plaintiff proved his claim, and rested. The defendant then proposed to prove his counterclaim, when it was conceded that it was the same claim as that upon which the defendant recovered against the plaintiff’s agents, and which was paid by the plaintiff. The defendant, however, objected tó the plaintiff’s proving such payment, upon the ground that there was no supplemental pleading which gave notice of that defense to the counterclaim. This objection was overruled, and the defendant excepted. The plaintiff then proved that the action against his agents was tried, and resulted in a verdict for the plaintiff in that action, who was the defendant in this, and that it was paid by the plaintiff in this action to the defendant’s attorney. After this proof was admitted, the defendant offered proof of his counterclaim, which was objected to by the plaintiff, and excluded by the court. The court thereupon directed a verdict for the plaintiff for $19.50.

It seems that upon a new trial in county court on an appeal from a justice’s judgment, the case should be tried upon the issues formed by the pleadings in the justice’s court. Becker v. Barnum, 19 Wkly. Dig. 94; Longrill v. Downey, 7 N. Y. Supp. 503; Thompson v. Pine, 5 Hun, 647; Hayes v. Kedzie, 11 Hun, 577; Reno v. Millspaugh, 14 Hun, 229. Moreover, it was but just that the parties upon a retrial should be allowed to introduce the same proof in the county court under the pleadings as they would have Been allowed to introduce upon the trial in a justice’s court. If the last trial had been in a justice’s court, no reply being necessary, the plaintiff would have been entitled to prove that the defendant’s counterclaim had been paid. We think tbe same rule should apply upon a retrial of an action in the county court commenced in a justice’s court. In other words, we think that the same proof, under the pleadings, should he admissible in the county court as would have been admissible in a justice’s court, and that, under the Code, a party is not required to amend his pleadings in the county court where the proof offered would have been admissible in a justice’s court under the pleadings as they stood. Hence, our conclusion is that, under the pleadings, the plaintiff was entitled to prove that the counterclaim set up by the defendant had been paid; that, under the circumstances of the case, it was not reversible error to reject the defendant’s evidence as to such counterclaim; and that the court properly directed a verdict for the plaintiff.

Judgment and- order affirmed, with costs.

All concur.


text:
    In the Matter of the Application by Glenside Woolen Mills to Lay out a Highway. John K. Doyle et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.

    1. Highway—Opening—Decision oe commissioners.
    The purpose of section 89, chapter 568 of 1890, was to allow persons interested in a proceeding for opening a highway, who desire to apply for an order vacating or modifying the decision of the commissioners, thirty days within which to institute the application or motion, and it is not its purpose to require the application to be heard or made in court within that time.
    2. Appeal—Decision oe commissioners.
    An order of the county court, dismissing application to vacate the decision of the commissioners appointed to lay out a highway, without a hearing on the merits, is' appealable.
    8,. Same—Stipulation.
    An order, dismissing such application, will not be held to have been entered by consent of applicant, so as to prevent his appealing therefrom, merely because it was entered in pursuance of a stipulation made for the ■purpose of correcting the order so that it should state truthfully the effect of the decision of the county court.
    Appeal from an order, denying a motion to set aside the report of the commissioners.
    M. E. Driscoll, for app’lts;
    Charles R.Milford, for resp’t.
   PER CURIAM.

This is an appeal from an order denying the appellants’ motion to set aside the report of commissioners appointed under the highway law to determine the necessity of a proposed highway in the town of Slcaneateles, and to assess the damages by reason of laying out and opening, the same. The commissioners determined that the highway was necessary, and that none of the persons through whose land it was proposed tó be laid were entitled to any damages therefor. The report or decision of the commissioners was made March 14, 1894, filed in the office of the clerk of the town of Skaneateles March 15, 1894, and in the office of the clerk of Onondaga county March 16, 1894. Within thirty days from the time of the fihng of the petition in the town clerk’s office, and on the 14th day of April, 1894, the appellants served upon the attorney for the petitioner, a notice that, on the affidavits accompanying it, a motion would’ he made on the 27th of the same month, at ten o’clock, before the court appointing such commissioners for an order vacating and setting aside their report or decision. On that day the parties appeared before the court; whereupon the attorney for the respondent objected to the hearing of the motion, on the ground that it was not made within thirty days after the fifing of such report or decision, as required by section 89, ch. 568, Laws 1890; and the court, without passing upon the merits, sustained the objection, and denied the appellants’ application, with $15 costs. The order was entered June 25, 1894. On the 13th of the following month, the appellants appealed to the general term of this court. Upon an application made to the county court, on the stipulation of the parties, May 1, 1895, the order entered June 25, 1894, was vacated and set aside, and another order entered in its place and stead, whereby it was ordered and adjudged that the preliminary objection interposed to the hearing of the motion or application to vacate the report or decision was sustained, and the motion was dismissed, with fifteen dollars cost. From the last order the appellants appealed to this court, May 28, 1895.

The first and only question relating to the merits of this appeal is whether, under section 89, the appellants’ motion to vacate the report or decision of the commissioners was in time. So far as material to this question, that section provides:

“Within thirty days after the decision of the commissioners shall have been filed in the town clerk’s office any party interested-in the proceedings may apply to the court appointing the commissioners for an order confirming, vacating or modifying their decision, and such court may confirm, vacate or modify such •decision. If the decision be vacated the court may order another hearing of the matter before the same or other commissioners. If no such motion is made, the decision of the commissioners shall be deemed final. Such motion shall be brought on, upon the service of papers upon adverse parties in the proceeding, according to the usual practice of the court in actions and special proceedings pending therein; and the decision of the county court shall be final, excepting that a new. hearing may be ordered as herein provided.”

The contention of the respondent is that, inasmuch as the motion was not actually brought to a hearing before the court within thirty days after the decision was filed, it had no power to hear it, and that, under the statute, the decision of the commissioners became final; citing several lexigraphic definitions of the word ‘“motion” as sustaining that contention. Thus, the question presented is whether this statute should be construed as requiring; an actual hearing of the application before the court within thirty days after the decision, or as requiring the party seeking to vacate or modify such decision within thirty days to inaugurate the application or motion by- the serving upon the adverse parties of the papers required to be served as the basis of such motion or application. That provisions of a statute which limit in point of time the right to move for a new trial, or to take an appeal, are to be construed in favor of the party desiring a review, is a well-established principle of the law relating to the construction of the statutes. Suth. St. Const. § 369, and cases cited in notes. Applying this rule to the statute under consideration, we are led to the conclusion that ite purpose was to allow persons interested in the proceeding, who desire to apply for an order-vacating or modifying the decision, thirty days within which to institute the application or motion, and that it was not its purpose-to require the application to be actually heard or made in court within that time. If the respondent’s contention were to be upheld, and the statute construed as requiring an actual application in court within thirty days, it might often result in great hardship to the party applying for such an order, and actually prevent him from availing himself of the remedy provided for, without any fault or neglect upon his part. On the other hand, if the-construction we have placed upon this statute prevails, it will result in no injury to the opposing party, and will permit one who-seeks to avail himself of this provision a certain opportunity to-do so. We are of the opinion that the learned county court erred in dismissing the appellants’ application, and that the order should be reversed.

. We think the respondent’s claim that the order appealed from was" entered in pursuance of a stipulation which would prevent the-appellants from appealing therefrom cannot be sustained. It is manifest that the purpose of the stipulation was'to aid the appellants on an appeal by correcting the order so as to make it conform to the facts, show the actual determination made by the county court, and that it did not decide the question upon the merits. Under such circumstances, it should not, we think, be held that this order was so far entered by consent as to prevent the appellants from prosecuting their appeal. Indeed, there is no pretense that the appellants consented to the order. They were vigorously opposing it. The stipulation was for the purpose of correcting the order so that it should state truthfully the effect of the decision of the learned county court. The court having erroneously held that the motion or application was not made in time, and having refused to pass upon the merits, the order dismissing the application was, we think, appealable to this court. In re City of Buffalo, 64 N. Y. 547.

Order appealed from reversed, with $10 costs and disbursements, and proceeding remitted to the Onondaga county court, to the end that the appellants’ motion may, be considered and decided upon the merits.