text:
    BENJAMIN L. HOYT and AUGUSTUS W. FRANKLIN, as Administrators, etc., of BENEDICT W. FRANKLIN, Deceased, Appellants, v. HENRY TUTHILL and Others, Respondents.

      Contribution — an obligor may bing an action in equity to compel contributions from co-obligors — when the request of co-obligors to malee the payment need not be proved — release of one co-obligor does not release 'the others — if the action brought is an equitable one the tenyea/r statute of limitations applies.

    The plaintiffs’ intestate with five others purchased certain real estate and gave to their grantor their joint and several bond, together with a mortgage on. the said premises, to secure a portion of the purchase-price. In 1872,1878 and 1874 the plaintiffs’ intestate paid installments falling due upon the obligations and taxes and interest. January 8,1876, the premises were sold upon the foreclosure of the said mortgage and were purchased hy the plaintiffs’ intestate. This action was commenced in October, 1881, to compel all the other obligors, except one who had been released hy the deceased, to contribute their proportionate share of the amount which the deceased had been compelled to pay.

      Held, that although the liability of each defendant might have been enforced in a separate action at law, yet that the plaintiffs might, for the purpose of preventing a multiplicity qf actions, join all the co-obligors in a single action in equity.

      That it was not necessary for the plaintiffs to show that their intestate paid at the express request of the co-ohligors, or of either of them.
    That as the obligation to contribute was several in its nature the release of one of the obligors by the deceased did not release the others.
    That even if the plaintiffs’ intestate by the purchase of the property at the foreclosure sale became, as to it, a trustee for his co-ohligors, this fact furnished no defense to this action brought to compel contribution as to payments made by him prior to the time of such purchase.
    That as it was proper for the plaintiffs to bring an action in equity instead of at law, the ten and not the six years’ limitation applied, and that they were entitled to recover for payments made more than six years prior to the commencement of the action.
    Appeal from a judgment, entered on a decision made at tbe Yates Special Term on the trial of an action in equity.
    On the 27th day of December, 1870, Benedict W. Franklin (the plaintiffs’ intestate), Horatio W. Perkins, George B.. Page, E. Darwin Tuthill, Henry Tuthill and William H. Fox purchased jointly a lot of land, in the village of Penn Yan, from Samuel F. Curtis, agreeing to pay therefor $3,000, and received a warranty deed of the premises. Thereafter the grantees paid $500 of the purchase-price, and on the 31st day of December, 1870, they duly executed, acknowledged and delivered to Curtis their joint and several bond conditioned for the payment of $2,500, the balance of the purchase-price, “ in five equal annual payments from and after the 1st day of January, 1871,” and secured the payment thereof by a mortgage upon the premises.
    When the first payment of principal and interest, amounting to $675, fell due in January, 1872, Benedict W- Franklin paid it from his own individual funds, and the same is true of the payments which respectively became due in January, 1873, and January, 1874, amounting to $640 and $605 respectively. Failing to pay the installments of principal and interest, which by the terms of the bond and mortgage became due in January, 1875, an action of foreclosure was commenced by Murdock, the then owner of the bond and mortgage, in the month of November, 1875, in which action the said obligors, were each and every of them made parties defendant and served with process, and the premises were, January 8, 1876, sold under a judgment of foreclosure to the plaintiffs’ intestate. Franklin paid all the taxes and assessments levied on the premises down to and including the year 1875. The said Benedict "W. Franklin died intestate in December, 1877, and the plaintiffs were duly appointed and qualified as administrators of his estate. This action was commenced in October, 1881, to compel contribution from the defendants.

      M. A. Leary, Delos MoGvrdkj and B. W. Frcmldin, for the appellants.

      W. F. Cogswell, of counsel, for the respondents.
   Smith, P. J.:

The plaintiffs’ intestate, one of several obligors and mortgagors who were jointly and severally bound by the express terms of their obligation, having made payments in reduction of the mortgage debt, this action is brought against all th^ other obligors, except one who has been, released, to compel contribution.

The action is one of equitable cognizance, the enforcement of contribution in cases of this nature being a very important and beneficial exercise of equity jurisdicton. (Story’s Eq. Jur., §§ 483, 484, 485, and cases cited in notes.) All the persons liable are properly made parties in order that their several interests may be adjusted and the amounts for which they are respectively liable may be ascertained. Besides, although the liability of each defendant for his quota is several and may be enforced in an action at law (Cowell v. Edward, 2 B. & P., 268), yet where the co-obligors are numerous they may be joined in one action in equity to prevent multiplicity 'of suits. (Craythorne v. Swinburne, 14 Ves., 160; 3 Pomeroy on Eq. Jur., § 1418 and note [1], and cases there cited.)

For the purpose of establishing a right to compel contribution, it is not necessary for the plaintiff to show that he paid at the express request of the defendants, or either of them, provided the right is made out in other respects. If the defendants were equally liable for the debt with himself, contribution will be compelled upon the principle that equality is equity (Aspinwall v. Sacchi, 57 N. Y., 331), and no request from them is necessary, or if necessary a request will be implied.

The plaintiffs have brought themselves fully within these rules. Their testator paid certain installments on the joint bond and mortgage when they became due, and also taxes upon the premises, and the claim is that each of the defendants shall be compelled to contribute his share of the moneys so paid.

It is ui’ged by way of defense that the release of Mr. Perkins, one of the obligors, discharged the othei’S. But the contract or obligation to conti’ibute being several, one of several co-obligors may be released without discharging the others. (Pars. on Cont. [6th ed.], 34, 35.)

It is suggested, too, by the defendants’ counsel that the plaintiffs’ intestate by purehasing the mortgaged property at the foreclosui’e sale became a trustee for his co-obligors. We do not think it necessary to consider that question on this appeal. If the intestate became the trastee of his co-obligors, the bare fact is no defense to the claim for contribution in respect to payments made by him before he became trastee. It may be that' he or his representatives have received moneys in the use of the property, or as a profit in the purchase in which his co-obligors are entitled to share; but those .are questions that do not appear to have been gone into at the trial.

It is also contended for the defense that the action is barred by the statute of limitations. That depends on whether the six-year or the ten-year limitation applies. We have seen that an action at-law would lie against each of the obligox-s separately to recover his quota, and of coui’se such an action would be within the six-year statute. In general where there is a legal and an equitable remedy in respect to the same subject Inatter the latter is under the control of the saxpe statute bar as the foi’mer. (Borst v. Corey, 15 N. Y., 505; Rundle v. Allison, 34 id., 180.) But the statute bar applicable to equitable x-emedies will be applied whei’e the legal remedy is impex-fect (Rundle v. Allison, supra), or where the xdght sought to be enforced by the equitable x-emedy is not a mere incident of the right attainable at law, as was the ease in Borst v. Corey (supra), but is distinct fx’om and independent thereof and not within the cognizance of a coux-t of law. An instance of the latter class of actions is Scott v. Stebbins (27 Hun, 335; affirmed by the Court of Appeals, 91 N. Y., 605). In the present case it was necessary for the plaintiffs to x’esort to a court of equity, where alone all the parties could be brought into one action for the purpose of adjusting their respective interests and ascertaining the amount for which they are severally liable, and compelling contribution from each by one decree, tbns avoiding a multiplicity of suits. And if, as is suggested by tire defendants’ counsel, tbe plaintiffs’ intestate became a trustee for his co-obligors and an accounting is necessary to determine tbe equities of tbe respective parties, that circumstance of itself makes the case one of equitable cognizance exclusively. As tbe action was brought within ten years after the cause of action accrued it is not barred.

We think the judgment dismissing the complaint should be reversed and a new trial ordered, costs to abide event.

Present — Smith, P. J., ITardin and Barker, JJ.

Judgment reversed and a new trial ordered, costs to abide event.


source: Caselaw Access Project

author: Smith, P. J.:

license: Public Domain

text:
    In the Matter of the Petition of CYRUS W. SWAN and Others to Drain Certain Lands, etc.

      Drainage of swamps — no appeal lies from, an order directing a further assessment— when an assessment may be laid before the title to the easement has been acquired — 1881, chap. 608.
    An order of a county judge directing a further assessment of damages to ho made in proceedings instituted for the drainage of swamps, as provided in section 1 of chapter 608 of 1881, is final and conclusive, and no appeal lies therefrom to the General Term either on questions of law or of fact.

      It seems, that where proceedings for the drainage of swamps are instituted under the general acts, the acquisition of the title to the easement to he taken is not an essential prerequisite to the laying and confirmation of an assessment for the damages to he occasioned.

      People ex rel. Williams v. Haines (49 N. Y., 587) distinguished.
    Appeal from an order of the Niagara County Court, made December 28, 1883, adjudging and determining a new assessment to be necessary for tbe payment of all obligations incurred in the above entitled proceeding.

      John T. Murray, for the appellant, Earl Pierce.

      Ellsworth <& Potter, for the respondents, commissioners.
   Smith, P. J.:

This proceeding was commenced in April, 1870, under chapter-888 of the Laws of 1869, known as the general drainage act, for the-purpose of draining a tract of land in the towns of Cambria and Wilson, in the county of Niagara, containing about ten thousand, acres, and consisting of seventy-five separate parcels of land belonging to as many different owners. Commissioners were appointed who estimated the cost of the work, including land damages, and expenses at $18,315.79, and assessed that sum upon the said ten thousand acres, apportioning the same among the several parcels-thereof. Some of the landowners so assessed appealed from said assessment to the county judge of Niagara but the appeals were dismissed, and the order dismissing them was affirmed by this court. Writs of certiorari were then sued out by some of the landowners who had appealed, tó review the proceedings of the commissioners in this court, but the writs were quashed. Thereafter the relatorswho sued out said writs, brought an action in this court to restrain the commissioners from collecting said tax, but after trial, the complaint was dismissed in July, 1876. These several proceedings were decided adversely to the persons who brought them, on the-ground that their remedy was by appeal to the County Court. In the meantime the commissioners had let the work b'y contract, and the contracts were completed and the work was-accepted before the-1st of December, 1872. For the purpose of carrying on the work,. the commissioners in 1870 borrowed $7,700, and signed and issued interest bearing obligations therefor.. They collected -the sum of $17,903.05 on said assessment, less the sum of $3,041.65 deducted or allowed for land damages or right of way, and only the sum of $412.74 remained uncollected on said assessment, and they paid out on account of said improvement all that they collected except t-he-sum of $1,350.34. In consequence of the expense and delay caused by said litigation, the commissioners found that the sum collected on the said assessment was insufficient to meet the entire cost of the1 said work and the necessary incidental expenses connected therewith, and on the first day of March, 1882, in pursuance of the provisions-of chapter 608 of the Laws of 1881, they made a further assessment upon the property originally assessed, of the sum of $4,001.48 less the amount of assets available to reduce the same, to provide for-such deficiency, and filed an order to that effect. From that order an appeal was taken to the Niagara County Court by Earl Pierce, who is the owner of a farm on which part of the drains made by the commissioners are located, and who took his title subsequent to the first assessment, from the person who owned the same at the time of said assessment, and who was assessed thereon for benefits from said improvements. Upon that appeal the order was set aside without prejudice to the right of the commissioners to file a new order and statement. On the first day of January, 1883, they filed another statement and order, and made a new and further assessment for the sum of $6,697.30, to meet said deficiency. From that order the said Pierce appealed to the County Court, and from the order of that court affirming the same, this appeal is taken.

The appellant is met by the objection that the order of the County Court is not appealable. The act of 1881 provides that the determination of the County Court upon an appeal from an order making a further assessment to provide for a deficiency, as authorized by said act, shall be “final and conclusive.” The act of 1869 contained a similar provision in regard to the order made upon an appeal from an original assessment (sec. 12), but the same section gave ail .appeal from such order to this court on questions of law. The Court of Appeals held that those two provisions made the order final upon matters of fact, but subject to appeal upon questions of law arising under that act. (Matter of Ryers and others, 72 N. Y., 1.) There is no provision in the act of 1881, giving an appeal to review any question whatever, and such right of appeal does not •exist unless it can be found elsewhere.

The provision in the act' of 1881, that the determination of the County Court shall be final and conclusive, excepts the case from the operation of the prior general statute providing for an appeal to this court from -orders in special proceedings. (Code of Civil Pro., § 1357.) Even if the general statute had been adopted subsequently to the act of 1881, it would not have operated as a repeal or amendment of the latter in respect to the limitation referred to. (In the Matter of the Application of the Comrs. of Central Park, etc., 50 N. Y., 493.)

Nor do we think that the act of 1881 can be regarded as a part ■of the act of 1869, so as to bring, it within the provision giving an appeal from any question of law arising under the latter act. It amends the previous legislation on the subject of drainage by adding a separate section, complete in itself, and giving a new remedy in the shape of a supplemental assessment. As the further assessment is to be levied upon the same property upon which the original assessment was made, it is not likely that it would give rise to any questions of law not involved in the first assessment. To give an appeal from the second assessment for the purpose of raising questions that were, or might have been, litigated on appeal from the first assessment, would not only be unnecessary, but mischievous .and unjust. The fact that the original assessment stands unreversed is conclusive evidence that a further assessment is proper in case of •a deficiency. The only question now discussed by the appellant on the merits, to wit, whether the order of assessment is void, for -the reason that title to the easement had not been acquired when the order was made, is one which was involved in the original •assessment, and might have been raised by appeal from the original order. The., only questions open on the further assessment are ■questions of fact, and they have been reviewed by the County Court, and the decision of that court is conceded to be conclusive as do them.

For these reasons we are of the opinion that the appeal should be dismissed. But as the question is new and the case is an important one, we have looked into the merits. The case of People ex rel. Williams v. Haines (49 N. Y., 587) is relied on by the learned counsel for the appellant in support of his contention, that no assessment can lawfully be levied until title to the easement has been acquired by grant. That case arose un der a special statute for the drainiug of lands in the town of Royalton. (Laws 1867, chap. 774.) In some material respects it differs from the general drainage act. We think a careful reading of thp latter act will show that where it becomes necessary for the commissioners to condemn lands by legal proceedipgs for that purpose, it is not requisite that the title to such lands shall be acquired before an assessment can be made. As soon as the .amount of damages to be paid for such lands is ascertained, the commissioners may proceed to make an assessment. (Sec. 10.) 'That the ’payment of such damages is not a prerequisite to the power of assessment, seems apparent fi’om the provision in section eleven, that “in cases where any persons have been awarded land damages, such damages shall be deducted from the assessment, and only the balance shall be collected.” That provision is meaningless, if all damages must be paid before an assessment can be made. No such provision was contained in the act which was the subject of interpretation in People v. Haines.

In the present case the commissioners had obtained grants of the easement from all of the seventy-five owners except twelve. Only one of the grants was acknowledged or witnessed so as to entitle it to be recorded, but all were valid and sufficient conveyances as between the parties to them, and the commissioners, with the consent of all of the grantors, had entered upon their respective lands and constructed the ditch. The ditch was notice to subsequent purchasers of the existence of the easement. That was enough to bring the case within the ruling in Haines’ case, as we understand it, as to all the owners except the twelve who did not execute grants. As to them, proceedings to acquire the title had been instituted under the statute, and the amount of damages to be paid to each had been fixed by a report of the commissioners of appraisal duly confirmed. All that was lacking to perfect the title was payment or deposit of the amount of damages, and in view of the facts-stated in the appeal book, it is to be presumed that the commissioners have no means of making such payment, except such as they may realize from said further assessment. And when realized they will be under a legal duty to so apply it. If the case were before us on the merits, we would think it our duty to affirm the order, but for the reasons already stated, the appeal is dismissed.

Hardin and Barker, JJ., concurred.

Appeal dismissed, with costs.


author: Smith, P. J,:

text:
    JANE B. WHEELER, Respondent, v. HENRY S. DUNNING and Others, Appellants, and the SOUTHERN CENTRAL RAILROAD COMPANY, Respondent.

      Conveyance — condition subsequent — what aats of the grantor operate as a waiver' thereof.

    In 1864 one Dunning conveyed certain real estate to an agricultural society by a deed which contained conditions providing that the grantee should not sell any separate part of the land; that it should not sell the whole without having first offered the same to the grantor, his heirs or assigns, at the price which any other person was willing to pay therefor, and that the grantee should make and keep a good fence around the land. In January, 1868, Dunning took a mortgage from the society for the payment of $1,100 in one year. The mortgage contained a power of sale, but none of the conditions set forth in. the deed. The mortgage was subsequently transferred to the plaintiff, who brought this action to foreclose it.

      Held, that the acceptance of the mortgage by the grantor and the assignment thereof by him were in effect a waiver of pei’formance of the conditions contained in the deed, and that a purchaser under the judgment of foreclosure of such mortgage would take the land freed from such conditions.
    Appeal from a judgment, entered on the report of a referee.

      S. E. Payne, for Dunnings, appellants.

      1. D. Teller, for the plaintiff and respondent.

      F. E.' Taber, for ihe Southern Central Railroad Company, defendant and respondents.
   Smith, P. J,:

In March, 1864, Henry S. Dunning and wife conveyed to the defendant, the Cayuga County Agricultural and Horticultural Society^ certain premises by deed, containing the following conditions : First. That the grantee should not, at any time, sell any separate part of said land. Second. That the grantee should not sell said land without first having offered the same for sale to the grantor, his heirs or assigns, at the same price that any other person or persons might be willing to pay for the whole; and, third. That the grantee should make and maintain, and at all times keep in good order, a good and sufficient fence around the whole of said premises. In January, 1868, the grantee executed to the grantor a mortgage on the whole of said premises to secure the payment oí the sum of $1,100 in one year, with semi-annual interest.' The mortgage contained a power of sale of the entire premises, and did not contain any of the conditions expressed in said deed. The mortgage was transferred by mesne assignments from Dunning to the plaintiff, and this action is brought to foreclose the same, default having been made in the condition thereof, whereby the power of sale contained therein has become operative. The Southern Central Railroad Company is made a party defendant by reason of the' fact th'at it occupies with its track a portion of said premises. It occupies under a lease or license granted to it by the agricultural society, after the portion so occupied had been condemned to the use of the said railroad company in proceedings ’ instituted for that purpose by the railroad company, in which the grantor, Dunning, participated so far as to petition for a change of route to the one now occupied by the company. The grantor, Dunning, died in 1811, leaving a will, and the defendants, Dunning, are his heirs and devisees.

The referee held that the action of the grantor in respect to the proceedings which resulted in the acquisition by the railroad company of a portion of said premises for the uses of its road, excused the performance by the grantee of the first and third conditions expressed in said deed, and by way of enforcing the second condition, he directed that upon a sale of the premises under the decree ordered by him herein, an opportunity be offered to the heirs of said grantor to take any pai-t of the premises put up for sale, at the highest bid made for the same.

The conditions in the deed are conditions subsequent. A condition of that nature may be excused when its performance becomes impossible by the act of the party for whose benefit it is created, or it may be waived by the one who has a right to enforce it. In the former case, the condition is discharged altogether and the estate made absolute; in the latter, the estate is relieved from the consequence of a breach thereof. (2 Wash, on Real Prop., 15, § 18.)

In the present case, if the grantor, in his lifetime, had- foreclosed the mortgage, he, or any other person purchasing the premises at the foreclosure sale, would have taken the entire estate freed from the conditions in the deed. If the grantor had purchased, he would have been restored to his original estate and the conditions would have been merged; if any other person had become the purchaser, such person would have been vested with all the title which the mortgagor and mortgagee could convey, to wit, an unconditional fee simple. (Code of Civ. Pro., § 1632.) The result of a foreclosure by an assignee of the grantor and mortgagee, is precisely the same. By the assignment of the mortgage the mortgagee transferred all the rights and equities possessed by him as incidents to the mortgage. In other words, the acceptance by him of the mortgage, and his assignment of the same to a purchaser for value, were a waiver of performance of the conditions expressed in the deed, in case of default in the condition of the mortgage, and the consequent exercise of the power of sale therein contained. Por these reasons we are of the opinion that the appellants have no rights or interests by virtue of the conditions in the deed, superior to the lien of the plaintiff’s mortgage.

Without expressing an opinion' respecting the grounds taken by the referee, we are of the opinion that his conclusions are right, except in directing that upon the sale under the decree the appellants should be afforded an opportunity to purchase, on paying the highest sum bid, which direction was made upon the assumption that the second condition in the deed is yet in force and is superior to-the lien of the mortgage. But as the respondents, who alone are-prejudiced by that ruling, have not appealed, we are not asked to reverse it.

The decree is therefore affirmed as it stands, with costs to the-respondents, to be paid by the appellants.

Hardin, J., concurred; Barker, J., not participating in the-decision.

So ordered.


author: :Smith, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. JOSEPH G. SWALES, LORENZO J. FRENCH and WILLIAM E. SWALES, Appellants.

      .Bond conditioned for the appearance of the obligee at the next term of the court — it is not broken by his failure to appear at any subsequent time other than the term specified, although the prior term be adjowned to such time. ' •

    "The defendant Swales as principal, and others as sureties, gave a bond in bastardy proceedings dated June 27, 1878, conditioned that he would appear at the next Court of General Sessions to be held in the county of Monroe and not depart the said court without leave. Lhe first term after that date commenced September ninth; the next commenced on November eleventh and continued until January twenty-fifth. It appeared that the September term of the court was adjourned to the day on which the November term was appointed to be held. It was claimed that defendant having failed to appear on January twenty-fifth the bond was forfeited. After the commencement of the term held in November, the defendant appeared and an appeal taken by him from the order of the justice was heard, and after being modified was affirmed.
    ;In this action, brought upon the bond upon the ground that the defendant having appeared at the term of the court held in November, had departed the said court without leave:

      .Held, that the bond only required the defendant to attend at the next term, that is, the term held in September, and that the court then held could not by adjourning to the day on which the November term was commenced, extend the obligations Of the parties to the bond, or make them liable for a failure of •the defendant to appear, or. not to depart the said court without leave during such adjourned term.
    Appeal from a judgment on a decision, rendered, at the Monroe •circuit, upon a trial by the court without a jury.

      Thomas Haines, for the appellants.

      II. H. Woodward, for the respondents.
   :Smith, P. J.:

The action is upon a bond given by the said Joseph G. Swales .as principal, and the other appellants as his sureties, dated 27th June, 1878, and conditioned that the said principal would appear at the •next Court of General Sessions of the Peace, to be held in the •county of Monroe, and not depart the said court without leave. The first term of that court’ after the execution of the bond commenced 9th September, 1878. The next term thereafter commenced 11th November, 1878, and continued until 2oth January, 1879, on which day, the said principal having failed to appear on being called, the bond was declared forfeited and an order was ■entered to that effect. The bond was given in bastardy proceedings on an appeal taken by said principal from an order of filiation made by two justices of the peace. After the commencement of the November term the principal had appeared in the Court of Sessions, his appeal had been heard, and the court had made an order modifying the order of the justices by reducing the amount which the principal was required to pay weekly for the support of the bastard child, and in substance affirming it as modified, and requiring him in open court to give the proper bond for the support of ■said child, etc., as required by statute.

The judge who tried this action found that Swales appeared at the next ternl of the said Court of Sessions after the execution of the bond, and departed the said court without its leave; and he ordered judgment against the defendants for the amount of the penalty of the bond. All the defendants appeal.

It appears by the record book that the September term of said Court of Sessions was adjourned to the day on which the November term commenced, and the theory of the plaintiff is understood to be, that by such adjournment the September term was carried into the November term, and was thereafter kept in life by virtue of the successive continuances of that term, until it was finally adjourned on the day when the bond in suit was forfeited. We áre not prepared to assent to that position. The obligation of the defendants, by the terms of their bond, did not extend beyond the next term of the court. We think that term necessarily ended when the' term next succeeding it began. We do not understand how a court, consisting of only a sufficient number of judges to hold a single term, can hold two terms at one and the same time. If ■such a court has power to keep each of its terms in life, by tacking it to the next succeeding term, every term might be continued indefinitely by that process, and thus the obligation of parties to a bond like the one in suit might be prolonged till the court ceased to exist. The terms of the courts .of sessions are required by law to be appointed and published in advance. The parties to the bond are presumed to have had such appointments in view when they assumed its obligations. Had tbe September term failed, tbe court would have bad power by statute to act in tbe case at tbe next term witb the same effect as it could have done at tbe September term if it bad been held. (Code of Civil Pro., § 14.) Tbe same section gives tbe like power when a term of court is adjourned, or the place of bolding tbe same is changed, as prescribed in tbe first chapter of the Code, of which tbe section is a part. But tbe present case is not one of those thus provided for. (See sections 36 and 41 of tbe Code.) If tbe case bad been within those provisions, the-parties would have been deemed to have contracted witb reference to them, and upon that ground tbe judgment could have been sustained. But in tbe circumstances, tbe effect of the judgment is to> extend tbe obligation of tbe sureties to tbe November as well as-the September term. Into that engagement they did not enter. So far as tbe sureties are concerned, their contract is strictissimi juris, and as to its extent is to be strictly construed.

In The People v. Greene (5 Hill, 647), Coweh,*!., speaking of at similar bond, said: The power of tbe court to continue it in force,, or in other words, to renew and make it applicable to tbe next term, in any way, even with tbe assent of the obligors, may well be-doubted. It is not a recognizance ; but a thing in pais, like any other deed ; and it is difficult to conceive bow it can be continued' without a new bond.” And be cited Keephaver v. Commonwealth (2 Pa. R., 240) in which Gibson, C. J., said: Becognizances being for appearance at the next, and not at every succeeding session, are to be discharged sit tbe end of tbe term, by’committing tbe prisoners,. delivering them on new l>ail, or setting them at large. But to avoid the trouble of renewing tbe security, it is sometimes the practice, when the bail consent, to forfeit tbe recognizance and respite it till tbe next term, and this answers the purpose perfectly well.”

If we are right in bolding that tbe September term ended when tbe November term commenced, tbe finding of tbe trial judge that at the next term, after tbe execution of tbe bond, Swales departed from tbe court without leave, is without evidence to support it, and there has been no forfeiture of tbe bond.

Tbe principal is released as well as tbe sureties. True, be came into court at the November term and proceeded to the trial of his-appeal, and after the trial was ended be failed to appear. Hñdoubtedly, as be submitted himself to the jurisdiction of the court, at that time, he was amenable to the judgment which the court pronounced, and he might have been proceeded against by attachment, or other appropriate remedy, for failing to obey the judgment, but he did not thereby become liable on his bond, the obligation of which expired with the September term.

The judgment should be reversed, and as the facts cannot be changed, a new trial.would be useless, and judgment should be ordered dismissing the complaint.

HardiN and Barrer, JJ., concurred.

So ordered.


text:
    JENNIE BINGHAM, Appellant, v. JAMES K. BURLINGAME, as Sheriff, etc., Respondent.

      Docketing of decrees of a surrogate — form of fhe execution to he issued upon them — Oode of Omit Procedure, sec. 2554.
    In July, 1879, a decree was entered by the surrogate oí the county of Monroe against one Bingham, and thereafter and in November of that year the same was docketed in the clerk’s office of that county. On November 16, 1880, an execution was issued thereon, tested in the name of one of the justices of the Supreme Court, and subscribed with the name of the attorney of the owners of the judgment.

      -Held, that the execution was void for the reason that it had not been issued by the surrogate or his clerk under the seal of his court, as required by section 2554 of the Code of Civil Procedure, which took effect September 1, 1880, and determined the form and manner in which executions upon such previously docketed judgments should be issued.
    Appeal from an order of the Monroe County Court, denying the plaintiff’s motion for a new trial, made on the minutes of the justice before whom the action was tried. The jury rendered a verdict in favor of, the defendant.

      J. A. Adlingíón, for the appellant.

      J. Sullivan, for the respondent.
   Smith, P. J.:

Replevin for a piano. The defendant justified under an execution issued against the property of George E. Bingham, the plaintiff’s husband, upon a decree of the surrogate of the county of Monroe. The defendant alleged that the piano was the property of the husband, and was levied on as such. The decree was entered in July, 1879, and docketed in the clerk’s office of said county in November, 1879. The execution was issued on the 16th of November, 1880, and was tested in the name of one of the justices of this court, and subscribed with the name of the attorney of the owners of the judgment.

It was objected at the trial, and is now contended by the plaintiff’s counsel, that the execution was void, it not having been issued by the surrogate or his clerk under the seal of his court, as required by section 2554 of the Code of Civil Procedure. The respondents claim that the case is controlled by the provisions of Statute that were in force when the present Code took effect (Laws 1837, chap. 460, § 64, as amended by Laws' 1844, chap. 104, § 2), and that as the execution complies with those provisions in all respects, except the teste, it is valid, a mistake or omission in the teste not rendering it void or voidable. (Code Civ. Pro., § 24; Park v. Church, 5 How. Pr. R., 381.)

We think the plaintiff’s counsel is right in his contention. The acts of 1837 and 1844, above referred to, were repealed by chapter 245 of the Laws of 1880 (§ 1, subs. 14 and 21), which took effect the 1st of September, 1880. The repeal of a statute arrests and terminates all proceedings under it which are not fully completed, unless there is a saving clause exempting them from the operation of the repeal. (Butler v. Palmer, 1 Hill; 324, and cases there cited; Angel v. Town of Hume, 17 Hun, 378.) The only saving clauses 'in chapter 245 bearing upon this question are the second and fifth subdivisions of the third section. So far as those provisions affect this case, subdivision 2 saves any right lawfully accrued or established prior to the taking effect of the act, and the fifth subdivision saves any future proceeding taken pursuant to law in an action or special proceeding pending in a Surrogate’s Court, “except as otherwise implied in the Code of Civil Procedure.” That is to say, the right is preserved, but the new remedy provided by the Code must be followed. A like construction has been given frequently to- similar statutes. (People v. Livingston, 6 Wend., 529, 531; McCotter v. Hooker, 8 N. Y., 497, 504; Acker v. Acker, 81 id., 143, 149; In re Election of Trustees of New York Express Co., 11 Weekly Dig., 483.) In People v. Livingston {supra), Savage, Oh. J., instanced several repealing statutes that saved pending remedies as well as rights, and he pointed out the distinction between them and the statutes with which he was dealing. What we have said accords with the views expressed by us in the Matter of Gates (26 Hun, 179, 180) as tb the meaning and effect of subdivision 5 of section 3 of chapter 215.

The respondent’s counsel refers us to subdivision 11 of section 3317 of the Code of Civil Procedure, but we think it has no application to the case. By the express terms of the opening clause of that section the eleventh subdivision has no application “ where a particular provision included within a chapter, or a portion of a chapter,” specified in a subdivision of that section, “ expressly designates the courts, persons or proceedings affected thereby. Section 2551 is such a provision.

The opening clause of section 3317 is not adverted to in the Matter of Underhill (1 Redf. Surr. R., 318), cited by the respondent’s counsel. The other cases cited by him are not in conflict with the views -above expressed. Bean, v. Tonnele (1 Civil Pro. R., 33) held merely that the right contended for by the appellant was saved to him. In Clark v. Hutchinson (1 Code R., 127) the remedy was expressly preserved by statute. (Code of Pro.; Laws 1848, chap. 379, § 216.) The question in Ex parte The New York, etc., Mining Gompamy (22 Wend., 636) arose under chapter 386, Laws 1810, which preserved all prior “suits or proceedings.” (Sec. 38.)

As, in the instance before us, the repealing statute saved the right only to issue an execution, but not the form and manner of issuing it, which was provided by the former statute, it follows that a valid execution could only be issued as provided by section 2551 of the Code. The execution upon which the defendant relied, not having been issued out of the Surrogate’s Court, as prescribed by that section, was void, its reception in evidence was error and it constituted no defense.

The order should be reversed and a new trial ordered in the Monroe, County Court, costs to abide event.

Hardin and Barker, JJ., concurred.

So ordered.


author: Hardin, J.:

text:
    MARY L. PECK, Plaintiff, v. WILLIAM VANDERMARK, as Executor, etc., of SEALEY PECK, Deceased, and Others, Defendants.

      An agreement made in consideration of rrumriage is valid, if contained in letters written by the pa/iiy to be cha/rged — light of the promisee to sue aft&r the death of the promisor for damages for a breach of the agreement.

    In the fall of 1879 the plaintiff, a widow, who was about forty-five years old and was then drawing a pension, received a proposal of marriage from the defendant’s testator, who was a few years older than she was. Thereafter a correspondence took place between them in which they discussed financial matters and what would he allowed to her in case she should marry him. In his letters he stated that he was worth about $10,000; that in case she married him he would bequeath to her the use and profits of his entire property during her life, and that she should dispose of one-half of it as she should see fit in case she survived him. Relying upon this agreement she married him March 9, 1880, and lived with him until he died June 6, 1881. He left a will dated April 80, 1881, by which he gave to the plaintiff a legacy of $200, and the residue of his estate to a sister and nephew. The plaintiff having presented a claim against the estate to the executors, which was rejected, brought this action against the executors, and the devisees and legatees, and sought to recover a judgment against the executors for the damages she had sustained by the testator’s breach of his agreement.

      Meld, that the written promise contained in the letters was sufficient to take the case out of the statute of frauds.
    That the plaintiff was entitled to recover.
    Motion for a new trial on exceptions, ordered to be beard in tbe first instance at tbe General Term after a nonsuit directed at tbe Ontario circuit.

      Mcrnnmg & KmdAg, for tbe plaintiff.

      W. H. Adams, for defendants Yandermark and Peck.

      McMaster & Pm'Tchurst, for defendant Trenebard.
   Hardin, J.:

Section 2 of tbe Revised Statutes (2 Edm. ed., 140) provides that every agreement shall be void “ made upon consideration of marriage, “ unless such agreement or some note or memorandum thereof expressing tbe consideration, be in writing, and subscribed by the party to be charged ■ therewith.” Plaintiff, being a widow, . in the fall of 1879 visited in the county of Ontario, and received the attentions of the testator to some extent, and from him a proposal of marriage. She gave no decisive answer while she was away from home on a visit, but returned to her home in Chautauqua county, and a correspondence took place between the parties in respect to their inter-marriage. As she was a widow some 45 years of age, and he a few years older, they discussed and considered financial matters and what should be allowed to her in case she consented to marry him out of his .property; He had real estate in Ontario and Seneca counties worth about $5,000 and personal property worth about $2,000. He represented in his letters to her that his property at a fair valuation was “ worth about $10,000” in his letter to her of October -7, 1879, stated that he would bequeath to her the use and profits of his entire property during her lifetime and half of it to be hers, to dispose of ” as she see fit ” in case she survived him. After several letters passed between them, they apparently came to an agreement to marry, and she relying upon his promise entered into the marriage relation with him on the 9th day of March, 1880, and she lived with him until the 6th day of June, 1881, when the testator died by his own hand.

Testator left a will bearing date April 30, 1881, wherein he left a legacy of $200 only to plaintiff, and bequeathed and devised the residue of his estate to the defendants, Trenchard a sister, and Peck a nephew of the deceased.

The will was duly admitted to probate September 19, 1881, and the defendant Yan Denmark qualified as the executor thereof. After advertisement for claims the plaintiff presented a claim to the executor for $6,000, and the same was rejected by the executor, who also refused to consent to a reference under the statute.

Trenchard aud Peck were made parties in order that they may have an opportunity to protect whatever right they may have in the premises and that they may be bound by the j'udgment herein, and plaintiff claims no costs against them ” but demands judgment for $6,147 with interest from March 9, 1880, against Yan Dermark as executor. Plaintiff gave in evidence several letters which passed from her to the deceased, and several letters of his to her. We think the letters competent to establish the agreement set out in the complaint and to establish the promise of the deceased in consideration of the marriage, and that those subscribed by the deceased were sufficient to answer the requirements of the statute of frauds to which we have alluded.

In Schouler’s Domestic Relations (p. 266) it is said, viz.: “ Letters also, if they sufficiently furnish the terms of the agreement, have been held good marriage contracts.” ■ And it is now clearly settled that a letter which sustains the terms of an agreement, or refers to another paper which specifies the terms, is sufficient to take the contract out of the statute of frauds.”

Of course, in this case, it was proper to read his letters,, in conjunction with hers, to which he referred, as well as those of his subsequent to his proposal of terms and promises, iu order to ascertain the exact terms of the contract entered into by the parties in regard to the property. (Myers v. Smith, 48 Barb., 614; Rogers v. Smith, 47 N. Y., 324.)

Evidently the consideration for the testator’s promise was the con- • sent of the plaintiff to let go her annuity derived from the United States government, by way of a pension given for the loss of her former husband, the agreement to marry and the marriage of herself to the testator. Marriage is a good consideration for a promise. Chancellor Kent says “ marriage is held to be a high consideration in law.” (4 Kent’s Com., 542; see, also, Sterry v. Arden, 1 Johns. Ch., 260; Campion v. Gotten, 17 Vesey, 264 and note; Schouler’s Domestic Relations, 268.) In Curry v. Curry (10 Hun, 370), Talcott, J., says: “ It is true that marriage itself is a valuable and sufficient consideration to sustain many contracts.” Marriage did not extinguish or destroy the contract made in contemplation thereof. It is expressly enacted in the statute of 1848, chapter 200, that all contracts made between persons in contemplation of marriage shall remain in full force after such marriage takes place. Having made the promise before marriage, and the plaintiff having-let go her pension and performed her part of the promise by entering into marriage with the deceased, he was obligated to observe his promise, and his failure to assure to her his property by will or otherwise according to his agreement was a breach of his contract. The evidence of his breach of it was perfect when he died, without having made over or secured to the plaintiff his property as he agreed, or having made a will that should carry out the tenor and . spirit of his undertaking with the plaintiff.

Upon the evidence before the court the defendants doubtless were entitled to have the jury find as a matter of fact just what the • terms of the agreement were. We think the letters of the deceased clearly reflect his intentions, and furnish the basis for ascertaining ■ the exact terms of the agreement of the deceased. . The essence of’ the agreement relied upon was in writing and made so definite by the letters of the deceased that its terms may be ascertained. The case of Wright v. Weeks (25 N. Y., 153) is unlike this as there the writing "relied upon to take the contract out of the statute of-frauds did not contain the terms of the agreement. Here the parties are named, the consideration made known, and the subject matter, namely, deceased’s property, as well as the promise in-respect thereto are stated, and we think the statute is satisfied. ( Wain v. Warlters, 5 East, 10.)

Wright v. Weeks (supra, opinion of Allen, J., 161); Dickinson v. Rowson (MS. opinion of Talcott, J.), cited to us on the argument differs from the case in hand, there was no doubt about the acceptance of the terms offered. Here the letters quite clearly show that the minds of the parties met as to the consideration for - the promise of the deceased, and that the marriage was solemnized after the promise given to induce it. One of the deceased’s letters was specific, wherein he says to the plaintiff you shall have the use of my entire property your lifetime, and one-half to do with as you see fit, in case you survive me. These conditions I will secure to you by will, and I promise you they will be faithfully carried out.” He understood she would forfeit her pension by marriage and she referred to that in one of her letters to him. Both parties seemed to have a full comprehension of the matters which were considered in reaching the conclusion to inter-marry. Indeed they gave more attention to business aspects of the new relations to be assumed than to any sentiments of affection or love.

They were mature parties, and consummated their contract and marriage in pursuance of it, in the light of intellectual and business modes, in disregard of more tender and sentimental emotions. Why should not the contract be fulfilled which they deliberately entered' into ? Anti-nuptial settlements and contracts have frequently been enforced in equity. Frequently they have created trusts which in their enforcement come appropriately under the equity jurisdiction of the court. (Neves v. Scott, 9 How. [U. S.], 197; 2 Story Eq., § 986.) Before the statute of 1849, declaring such contracts valid after marriage, courts of equity took cognizance of such agreements and enforced them. (Miller v. Goodwill, 8 Gray, 542; Dygert v. Remerschnider, 32 N. Y., 645.) However, in the case in hand the plaintiff has sought to maintain her right to recover damages in an action of law. The complaint is framed for a recovery at law, of damages alleged to have been sustained by reason of the breach of the agreement made by the deceased.

' No dilatory plea or defense predicated upon the want of jurisdiction in a court of law to give adequate damages is found in the answer of either of the defendants.

By omitting to demur, the devisees and legatees have waived any objection to their being joined with the executor. It is not needful to hold in this case that the plaintiff would not in equity be entitled to relief. As distinction between law and equity has been'abolished by the Code, and a party who comes to this court with a case containing facts showing a right to a recovery either at law or in equity, is entitled to such relief as exact justice requires. We see no occasion to stop to consider whether this action could not be upheld according to the principles of equity jurisdiction.

It would, of course, be difficult to enforce a specific performance of the agreement to make a will, and thus secure to the plaintiff the one-half of the deceased property, and the use of the other one-half thereof to the plaintiff during her natural life. But it is not difficult to see that in a court of equity the action might be retained and damages given. Plaintiff was entitled to relief without stopping to speculate upon the name to be given to the action. ( Wright v. Wright, 54 N. Y., 443.)

Assuming, as we properly may, that the parties have elected to treat this as an action at law, the important question remaining to be considered relates to the damages to be given for a breach of the testator’s agreement. For we are of the opinion that when he died, without securing to the plaintiff by conveyance or will the property he had promised, a breach of the agreement had occurred.

The learned circuit judge who granted the nonsuit seemed to put it upon the ground that this action was premature, because the executor had not completed a settlement of the estate, and that the debts had not been ascertained. In that view of the case we think there was an error, in holding that plaintiffs claim is one which in the nature of the case cannot be estimated until the estate is settled and the debts are shown to have been paid; and, therefore, the action is prematurely brought.” The ruling was excepted to, and the exception presents an error. The value of the estate was shown; claims or debts to the extent of some $623 had been pre■sented, and allowed to the extent of $600, and but little remained .to be done to ascertain the extent of any other indebtedness. We think that might have been, if it was not already, made certain by proofs. Resides it was within the power of the court to allow a recovery predicated upon the value of one-half of the property left by the deceased, and the value of one-half of the use of the other half for the lifetime of the plaintiff, and then to have ordered a reference to ascertain the extent of the debts of the testator, and the expenses of settling his estate. Or the judgment establishing the right of recovery could have reserved the question of the amouut of recovery, to be settled and ascertained after the final decree of the surrogate in the premises. The judgment sought here would thus be made to bind the assets only. (Code óf Civil Pro., 1824, §§ 1371, 1825, 1826.)

The value of property to be given and secured to the plaintiff should be made the measure of the damages for the breach of the agreement. The parties in making the agreement had reference to the property and to its value. The testator represented to the plaintiff that it was worth about $10,000. The terms of the agreement referred to the property. It was made by the parties, the compensation to be given or secured to the plaintiff, as the compensation which he would give to her, if she would give up her pension and join him in wedlock. She had a right to rely upon that compensation being given to her which he had referred to in the contract made with her. We think this case falls within the principles laid down in the opinion of Wblls, J., in Lisk v. Sherman (25 Barb., 438). Plaintiff’s right to recover rests upon the contract, and that stipulated in terms she should have one-half of the testator’s property and the use of the other half during her life, and to make good that promise of pecuniary benefit, we,think she should be allowed to recover exactly what she lost by the breach of the agreement, broken by the testator. (Burlingame v. Burlingame, 7 Cowen, 92; Thomas v. Dickinson, 2 Kern., 372.)

"We are of the opinion that the plaintiff ought not to have been nonsuited at the circuit, and we therefore order a new trial.

Barker, J., concurred; Smith, P. J., not participating in the decision.

Nonsuit set aside, new trial ordered, costs to abide the event.


text:
    THE BOARD OF SUPERVISORS OF THE COUNTY OF SENECA, Plaintiff, v. WALTER H. ALLEN and Others, Defendants.

      Oounty treasure!’ of Seneca county — right of, to receive fees for the collection and payment of the State tax —1875, chap. 605, as amended by chap. 213 qf 1879 — 1871, chap. 110.
    Chapter 605 of 1875 relating to county treasurers in Monroe and Seneca counties, as amended by chapter 213 of 1879, was not intended to, and did not, deprive the county treasurers of those counties, of the amount which they were entitled to receive for the collection and payment of the State taxes as fixed by chapter 110 of 1871.
    Motion by the plaintiff for a new trial, on exceptions ordered to-be heard in the first instance at the G-eneral Term, after a dismissal of the plaintiff’s complaint at the circuit.
    The defendant Allen was county treasurer of Seneca county and gave his bond, with the other defendants as securities, to faithfully account for all money which should come to his hands as such county treasurer.
    This action was brought to recover $2,168.69, which the plaintiff claimed that Allen did not account for and pay over. Of this sum $1,019.26 were deposited to the credit of the State treasurer by Allen’s predecessor in the banking office of one Wheeler, and still remain there to the credit of the State treasurer,- and never were in the hands of or custody of Allen. The balance, $1,151.43, were State funds deposited to the credit of the State, having been paid to Allen, by checks and orders of officers of the State, as his fees for collecting the' moneys for the State.

      Peter EL. Vcm Auken, for the motion.

      Frederick L. Mumming, Charles A. Hawley and J. B. Murray, for the defendants.
   Hardin, J.:

Chapter 110 of the Laws of 1811 provided that county treasurers should receive for services, instead of the fees then allowed by law, such compensation. “ as shall be fixed by the respective boards of supervisors of their respective counties.” * * * It is also provided that “in addition to such compensation so fixed as aforesaid they shall be entitled to retain a commission of one per centum on every dollar belonging to the State which they shall receive and pay over, * * * but in no case to exceed the sum of five hundred dollars.” * * * “In receiving and paying over such (State) taxes county treasurers act in behalf of the State and not of the county.” (People ex rel. v. Supervisors, 11 Hun, 307, opinion of Gilbert, J.)

The act of 1811 proceeds upon the well understood fact that the treasurers act in a dual capacity, and therefore provides a mode of compensation for two classes of duty, viz., the one in behalf of the county and the other in behalf of the State.

In 1815 the legislature passed its chapter 605, which relates “ to the county treasurers of the counties of Monroe and Seneca,” exclusively. That statute recognizes the double capacity in which the treasurers are called upon to act. The first six sections of the act seem to relate to the duties devolved upon the treasurers in behalf of their respective counties. Then follows section seven, which relates to a duty to be done with State taxes. It requires the treasurer “ to make a special deposit to the credit of the State treasurer, in the bank or banks designated as aforesaid, of all moneys collected on account of the State tax in the said counties.

In chapter ,213 of the Laws of 1819, the act of 1815 was amended by adding section 12 to the act of 1815, whereby it is made to declare that nothing in the act of 1815 “shall be construed as preventing the treasurers of the said counties from retaining * * * the same compensation for receiving and paying the money belonging to the State every year as that allowed by chapter 110 of the Laws of 1871.” The act then declares, viz.: “ But the comptroller is hereby authorized to allow to the said treasurers, for the benefit of their respective counties on the State taxes heretofore and hereafter received and paid over by them, where not' already allowed, the compensation provided by the said chapter 110.” What was the effect of this amendment of 1879? Was it to keep up the two characters in which the treasurer acts, or was it the intent that the compensation fixed and allowed by the board of supervisors for services in behalf of the county should be the maximum and exclusive measure of compensation for his services in both capacities. We incline to the opinion that the. payment by the State to him was for services in behalf of the State, and “ in addition to such compensation so fixed,” as the act of 1871 phrases it, to such compensation as the board of supervisors should fix for services in behalf of the county.

It may be urged that this construction does not give force to the words in the statute, “ for the benefit of their respective counties,” found in the act of 1879. But w;e think it more reasonable to suppose that the board of supervisors, when establishing the salary to be paid the treasurer in behalf of the county, may take “ the benefit for their respective counties,” and give the counties such benefit as they ought to receive, in view of the fact that the incumbent derives certain compensations from, the State for his services in behalf of the State as such treasurer. This construction seems to be the one given to the legislation by the financial officers of the State. Certain of the funds in dispute were paid over to the State by being deposited to its credit, as was required by law, and then paid by the State officers to the defendant Allen as for his services in behalf of the State. The construction by the State officers is entitled • to some weight in our efforts to ascertain the real intent of the legislature. (Potter’s Dwarris, 179; Edwards’ Lessee v. Darby, 12 Wheat., 210.) A different construction would bring us to inquire whether the act of 1875 and its amendment in 1879 were constitutional, and to consider them in connection with section 18 of article 3, and section 23 of article 3, and section 16 of article 3, and section 9 of article 1 of the Constitution.

From what has been said, we conclude that the plaintiff has not established any title to or interest 'in the funds sought to be recovered of the treasurer defendant and his sureties. The result at the circuit was therefore right.

Motion denied and judgment ordered for defendants.

Smtth, P. J., and Barker, J\, concurred.

New trial denied and judgment ordered for the defendants on the verdict.


text:
    WILLIAM A. POUCHER, as Administrator, etc., of ROBERT E. CHILD, Deceased, Appellant, v. ROBERT C. SCOTT, as Executor, etc., of ROBERT SCOTT, Deceased, Respondent.

      Presumption — a check is presumed to be given in payment of a debt due— evidence— when inadmissible as being too remote — when am, administrator is debarred from testifying by section 829 of the Code of Civil Procedure.

    This action was brought to recover $2,000 alleged to have been loaned by the plaintiff’s intestate to the defendant’s testator. It appeared upon the trial that on June 5, 1874 the plaintiff’s intestate drew from a savings bank in Oswego the sum of $2,000 then due to him; receiving the same in two checks, each for $1,000, payable to cash or bearer. The intestate, who had formerly been employed in the custom-house, but was not at the time engaged in any business, had been living for a year or more with the defendant’s testator, Scott, and died in the latter’s house in March, 1875. On June 6, 1874, both of the checks given to the intestate were in the hands of Scott, and were by him used in the payment of a debt due from him. They were paid by the banks upon which they were drawn in the usual course of business.

      Held, that the evidence was insufficient to establish a loan of the $2,000 from the intestate to Scott, and that the complaint was properly dismissed.
    Upon the trial the plaintiff having stated that he knew the intestate and was acquainted generally with his circumstances, was asked to state what he knew in regard to his means and circumstances during the last four years of his life.

      Held, that the question was properly excluded as the evidence called for was too remote.
    That it was also proper to exclude proof of the amount of the estate that came into the plaintiff’s hands. ~
    The plaintiff sought to testify as to conversations had by him with Scott, after the death of the intestate, one before and one after letters of administration.had been issued to him.

      JBeld, that the evidence was inadmissible under section 829 of the Code of Civil Procedure, because the plaintiff was a party to the action and because he was ' interested in the event thereof.
    Appeal from a judgment, entered in Oswego county, on the report • of a referee, dismissing the plaintiffs complaint with costs.
    The action was brought to recover money alleged to have been loaned by the plaintiffs intestate, on the 6th day of June, 1874, to the defendant’s testator, in the city of Oswego. The intestate kept .an account in the Oswego City Savings Bank, and on the 5th day of June, 1874, applied to the bank to have the account written up, .and in payment of the balance found due to him, he received from the bank two checks in the words and figures following, to wit:
    “ Oswego, N. Y., Juna 5th, 1874.
    “Lake Ontario National Bank, pay tó cash or bearer, ■one thousand dollars ($1,000).
    “ L. E. GOULDING,
    “ Secretary.”

    “ Oswego, N. Y., Jwne 5th, 1874.
    “ The First National Bank, pay to cash or bearer, one thousand •dollars ($1,000).
    “L. E. GOULDING,

      “ Secretary.”
    The answer contained a general denial of the allegations in the •complaint, in respect to the alleged loan of money, and several set-offs and counter-claims and the statute of limitations.
    After the ease was at issue and before the trial, Robert Scott, the -testator, died, and his executor, Robert O. Scott, was substituted in his place as defendant. The executor applied to the referee for leave to amend his answer, by pleading judgment, payment and release, which was granted and the plaintiff excepted.' The defend - .ant thereupon pleaded in defense payment and a release. Upon the ■trial the referee made the following findings:

      First. Robert F. Childs, the plaintiff’s intestate, died at Oswego on the 23d day of March, 1875.

      Second. That- he died at the house of Robert Scott, the defendant’s testator.

      Third. That the said Robert F. Childs had been living at the house of the said Robert Scott for one year or more immediately prior to his death.

      Fowrtn. That for several years before his death the said Robert F. Childs had been an employe of the custom-house at Oswego city, and had not been engaged in any active business.

      Fifth. On the 22d day of April, 1875, letters of administration on the goods, chattels and credits of the said Robert F. Childs, were duly issued by the surrogate of Oswego county, to the plaintiff in this action, and he thereon became and still is the administrator of .said estate.

      Sixth. That on and before the 5th day of June, 1874, said Robert F. Childs had on deposit in the Oswego Savings Bank $2,000 or over, drawing interest.

      Seventh. That during the year before his death, on the said 5th day of June, 1874, said Robert F. Childs drew; $2,000 he so had on deposit in the Oswego County Savings Bank, and received the same in two checks, signed by L. E. Groulding as secretary of said savings bank, copies of which have been given above.

      Eighth. That on June 6, 1874, the day after said checks were delivered to said Robert F. Childs, both of said checks were in the hands of said Robert Scott, deceased, and he on that day appro-' priated the same to his own use, by paying the same to Noble and McFarlane on a contract he and others had with them.

      Ninth. This action was commenced against Robert Scott in his lifetime, and on the 11th day of March, 1880, and afterwards, and on April 3, 1882, said Scott died, leaving a will which was duly proved, and letters testamentary thereon were duly issued to Robert C. Scott, the defendant, on June 15, 1882, and he was substituted as defendant herein in place of Robert Scott on the 22d of August, 1882.
    The referee also found, viz., that there is no evidence how or from whom the said Robert Scott received the said checks, or either of them; that the checks were paid by the said bank, from which the same were drawn in the course of business. He also found and decided as a matter of law that the plaintiff had hot made out a cause of action against the defendant, and that the complaint of the plaintiff should be dismissed, and that the defendant recover of the plaintiff the costs and disbursements of the action, and judgment was ordered accordingly. The plaintiff requested the referee to find and hold that the evidence was sufficient to sustain the finding that Robert Scott, now deceased, got’ the checks of Robert Childs, deceased, on the 5th or 6th of June, 1874. The referee refused so to find or hold and plaintiff excepted.
    The plaintiff also asked the referee to find and hold that said Robert F. Childs, deceased, was the owner of and in the possession of said two checks on the 5th day of June, 1874, and said Robert Scott got possession of the same on the 5th or 6th of June, 1874, and appropriated the same to his own use, and there is no evidence--that said Childs consented thereto, or knew that said Scott had possession of the said checks or had appropriated the same to his own use. The referee refused so to find or hold, and plaintiff excepted. Plaintiff also asked the referee to find and hold that it is a question of fact for the consideration of the referee in this case whether said Robert Scott, deceased, was indebted to Robert F. Childs, deceased, at the time of the death of said Childs or not. The referee refused so to find or hold, and plaintiff excepted.
    The plaintiff also requested the referee to rule as a matter of law, that from the facts and proofs, and the circumstances surrounding this case, there is no legal presumption that the said Robert Childs on the 5th or 6th of June, 1874, owed to Robert Scott $2,000. The referee refused so .to rule and plaintiff excepted. The plaintiff requested the referee also to rule as a matter of law that on or about June 6, 1874, said Robert Scott, now deceased, became indebted to said Robert Childs, now deceased, in the sum of $2,000. The referee refused so to find and plaintiff excepted. Plaintiff also requested the referee to rule as a matter of law that the plaintiff was entitled to judgment against the defendant for $2,000, and interest thereon, and the report of the referee directing judgment for that sum. The referee declined so to rule and plaintiff excepted.
    The plaintiff offered evidence of the means and circumstances of the said Robert F. Childs prior to and up to his death. The referee excluded the same and plaintiff excepted. The plaintiff offered evidence of the amount of the Childs’ estate that came to the hands of - his administrator, and the referee excluded it, and the plaintiff excepted. The plaintiff also offered to prove admissions and statements of Eobert Scott, deceased, made to liim before and after the plaintiff was appointed administrator. The defendant objected on the ground that the administrator was not a competent witness, and the evidence was excluded for that reason.

      William Tijfany, for the appellant.

      S. G. Huntington and D. P. Morehouse, for the respondent.
   Hardin, J.:

After the evidence offered by the plaintiff was received and closed, the referee came to the conclusion that it was his duty to grant a nonsuit. The rule is well settled that where the evidence is insufficient to warrant the verdict of a jury, or a finding of facts favorable to the plaintiff sufficient to support a judgment in his favor-, it is the duty of the court to grant a nonsuit. (Deyo v. N. Y. C. R. R. Co., 34 N. Y., 13.)

While the checks were in the hands of Childs, on the 5th of June, 1874, the fact that he received them from the savings bank, and the possession of them, concur in establishing that he was then the owner of the checks, as the checks were payable to bearer when they were found in the possession of Scott, the presumption attached to them is that Scott was the owner of them. There was no evidence offered in the progress of the trial indicative of the manner in which Scott became possessed of the checks. There was no evidence indicative of the manner or time when Childs parted with or surrendered the possession of the checks. As we have already said,, the possession of the checks by Scott at that time, the sixth of June, as they were payable to bearer, was presumptive evidence that he Was owner of them, and that he came rightfully into the possession of them. We think the evidence warranted the referee in applying-the principle laid down in the Court of Appeals in Koehler v. Adler (78 N. Y., 290).

In that case Chief Justice Chuegh, in the course of his opinion,, says, viz.: It is not claimed that this check is evidence of money loaned, but, on the contrary, the presumption is that it was paid upon some debt or obligation owing by plaintiff.” We are inclined to' think that if the fact appeared that the checks were passed directly between the hands of Childs and Scott without an explanation of circumstances, the proper inference to be would be that they were delivered in payment of a debt, and that inference of an indebtedness would arise from such facts.

In the second volume of Greenleaf on Evidence (§ 112) it is said, viz.: “ In pi’oof of the count for money lent it is not sufficient merely to-show that the plaintiff delivered money or a bank chock the defendant; for this, prima facie, is only evidence of the payment by the plaintiff of his own debt antecedently due the defendant.” It has been repeatedly held that the delivery of a promissory note by one party to another, or the delivery of a check by one party another, gave rise to the presumption that the delivery was made liquidate an indebtedness from the maker to the payee.

"We have found no evidence in the case changing that presumption, attending the possession of the cheeks by Scott. They may have been paid to him for an antecedent indebtedness by Childs, or Childs may have put them afloat in commercial channels and some creditor of Scott may have become possessed of them and paid them to him, or even made a gift thereof to hinf. Speculation and guesses are insufficient to establish an indebtedness on the part of Scott for the checks. The presumptions to which we have alluded - are legitimately in his favor, and they continue to be a perfect proteetion’ to him and his estate, unless the contrary thereof is estab-, lished by evidence. We have looked carefully through the evidence, in vain, to find in it anything to overcome the presumption to which we have alluded. The onus was upon the plaintiff, and as the plaintiff failed to establish any indebtedness on the part of Scott to Childs, we think the conclusion of the referee was correct. There was such a lack of proof of the essential fact of the plaintiff’s alleged cause of action, that a verdict of a jury would not be allowed to stand in favor of the plaintiff, and it was therefore proper for the referee to hold and decide, as a matter of law, that the plaintiff failed to make out a case. (Scofield v. Hernandez et al., 47 N. Y., 313.)

Second. During the trial, while was on a witness, he stated he knew Childs in his lifetime, and that Childs had been collector of customs in the city of Oswego, and that he was acquainted generally with his circumstances. Then the witness was asked the following question, viz.: “ Will you State in regard to bis means and circumstances since about 1870, during tbe last four years of bis bfetime ?” This question was objected to and tbe • objection sustained. It is now insisted by the appellant that tbe referee erred in the ruling. We think, however, that tbe evidence was too remote, and that it was not error to exclude it. (Carroll, executor, etc., v. Deimel et al., 18 Weekly Digest, 549.) In that case a payment was in dispute, and it was held that evidence that a party made no deposit of a certain amount about tbe time a payment is claimed to have been made to such party, is not competent to disprove tbe fact of such payment.” (Nicholson v. Waful, 70 N. Y., 604.) In that case evidence was offered of acts and declarations, some two or three years prior to tbe alleged loan, inconsistent with the loan of money, by tbe lender, and it was excluded. . Tbe court held that the evidence excluded was too remote and inconclusive, and the rejection thereof was not error.

Moore v. Meacham (10 N. Y., 211) is an authority for saying that the presumption in the absence of proof 'was that the intestate was solvent, and for that reason proof that the party was in good credit, established nothing more than the presumption, and although such proof was given it furnished no satisfactory ground for alleged error. The question presented to us in Nicholls v. Van Valkenburgh (15 Hun, 230) differs from the one now before us. That related to the improbability of a note being allowed to remain over-due for several years, without any demand of payment or attempt to collect the same, and we thought this evidence of circumstances of the party was admissible to give" rise with other evidence to a presumption that, if the note had been a valid claim, it would probably have been demanded and its payment enforced, and we relied somewhat on the case of Waddell v. Elmendorf (10 N. Y., 170). There evidence showing the embarrassment and insolvency of a judgment debtor was held to be competent, as tending to rebut the presumption of payment of a judgment recovered in 1810.

Third. Plaintiff sought on the trial to prove what was the amount of Childs’ estate that came into his hands as administrator. This was objected to as irrelevant, incompetent and inadmissible, and the objection was sustained and plaintiff excepted. We fail to see how the extent of assets which had come into the hands of the administrator could £e made to shed any light upon the issue presented by the pleadings, or to bear upon the question whether or not the intestate had made a loan to the testator. ¥e are not prepared to say there was any error in this ruling. Plaintiff sought to prove by himself as a witness that he had a conversation with the testator a few days after the death of the intestate, and before letters of administration were issued to him in respect to the two checks, and also a conversation had in April, 1878, in respect to the two checks, and the statement and conversation of the testator in respect to the same.

The evidence was objected to on the ground that the witness was not competent under section 829 of the Code. Was there any error in excluding this evidence ? It is provided in that section, viz.: A party or person interested in the event * * * shall not be examined as a witness in his own behalf or interest * * * against the executor, administrator, or survivor of a deceased person * * * concerning a personal transaction or communication between the witness and the deceased person.” We are of the opinion that the administrator was a party to this action. We cannot divorce him from the office of administrator, and say that he was not a party and that the real party to the action was the office of administrator. The personal transaction or communication sought to be shown took place between the witness and the deceased person.

Fourth. Plaintiff was a person interested in the event of this action. “ A recovery in this action would enhance the fees which the plaintiff, as administrator, would be entitled to; it would save the plaintiff from liability to costs. The testimony which he sought to give, was offered in his own behalf or interest.”

We think he was not a competent witness to give the conversations or transactions between himself and the deceased testator. He is made incompetent by the letter and spirit of section 829. (Steele v. Ward, 30 Hun, 555; Allen v. Blanchard, 9 Cow., 633; Church v. Howard, 79 N. Y., 415; Willis v. Montgomery, 78 id., 282; Butler v. Warren, 11 Johns., 58.)

In the case last cited it was said, “the rule is stubborn and inflexible that if a witness has a direct interest, however small, in the event of the cause, he cannot be admitted to testify upon the trial in favor of that interest in any respect or degree.” Phillips on Evidence (vol. 1, p. 81) says: “ The law looks on a witness as interested where there is a certain benefit or disadvantage attending the consequence of the cause one way.” We are of the opinion that section 829 has not made a witness situated as plaintiff is, in respect to conversations and communications sought to be proved, a competent witness. (Hill v. Alvord, 19 Hun, 79.)

Plaintiff sought to use his own testimony in his own behalf or interest,” and the objection therefore was well founded. (Ely v. Clute, 19 Hun, 36; Hill v. Hotchkin, 23 id., 414.)

Hall v. Richardson (22 Hun, 445) does not aid the appellant. That was an action against Richardson, personally, based upon his individual agreement and not on any agreement mady by him as executor or by his testator. Nor does Champlin, v. Seeber (56 How., 46) aid the appellant. In that case the witness~’was not called to speak of transactions and communications had with the deceased person against the administrator, executor, heirs-at-law, devisee or survivor of such person. Having found no legal error in the course of the trial, the judgment entered on the report of the referee should be affirmed.

Smith, P. J., and Barker, J., concurred.

Judgment affirmed.


text:
    In the Matter of the Application of the NEW YORK, WEST SHORE AND BUFFALO RAILWAY COMPANY, Appellant, to Acquire Title to Lands of GERHARD LANG and Others, Respondents.

      Taking of land for railroad purposes — an oi'der of the Special Term setting aside the repo'i't of commissioners is renewable at the General Term — evidence — a witness cannot testify as to ‘‘his impression ” of What was said,.

    Under chapter 270 of 1854 an appeal lies to the General Term from an order of the Special Term, setting aside an award of commissioners appointed to appraise the damages occasioned hy the taking of land for the purposes of a railroad, the order so appealed from having been made upon an appeal taken to the Special Term from the pro foi'ma order of confirmation.
    Upon the hearing before the commissioners a witness was called by the company to prove admissions made by the owner as to the value of his property. The witness after stating that he was not certain in his own mind as to just what was said was allowed, against the defendants’ objections and exceptions, to-state “his impression” as to the amount stated.

      Held, that this was error.
    Appeal from an order made at the Erie Special Term setting aside an award of commissioners appointed under the railroad act, and directing a new bearing before different commissioners, to ascertain the damage, etc. The appeal was taken to the Special Term from the order confirming the report of the commissioners.

      Anson Wilcox, for the appellant

      Spencer GVmton, for the respondents.
   Hardin, J.:

Although, the Special Term heard the appeal taken to the Supreme Court from the order pro forma of confirmation of the report of the commissioners as it might (sec. 18 Genl. R. R. act, chap. 140 of 1350); we think an appeal fi’om the order of the Special Term to the General Term is allowable, and that such right to invoke the action of the General Term, as a branch of the Supreme Court, has existed since the passage of chapter 270 of the Laws of 1854, relating to special proceedings. The weight of the authorities is found to favor such right of appeal to the General Term. The reasons are cogently stated by Davis, P. J., In the Matter of the Kingsbridge Road (4 Hun, 599), and the authorities relating to the question are referred to quite extensively. That case was affirmed’ by the Court of Appeals, as appears by the report thereof upon the opinion delivered in the Supreme Court. (62 N. Y., 645; see, also, Rens, and Saratoga R. R. Co. v. Davis, 43 id., 146, 147; In re Coms. of Central Park, 4 Lans., 471; R. & G. V. R. Co. v. Beck-with, 10 How., 169.)

In Albany cmd Susquehanna Railroad Company v. Dayton (10 Abb. [N. S.], 182) Mason, J., who delivered the opinion of the court, rested the right to appeal from an order of the Special Term, setting aside an appraisal, to the General Term upon chapter 270 of the Laws of 1854, in connection with section 18 of the general railroad act. That proceedings to condemn land are special proceedings, and therefore fall within the act of 1854, is settled by Railroad Company v. Davis (43 N. Y., 137); New York Central Railroad Company v. Marvin, (11 id., 276). In this case, decided in June, 1854, the act of 1854 was not adverted to and the regulation of appeals in this class of proceedings was discussed in the light of the provisions of the general railroad law, without any reference to or application of the act of 1854 to the case then in hand. That case is not an authority adverse to the cases already referred to, construing chapter 270 of the Laws of 1854. However, it is an authority for saying that appeals from an award are to be considered by the Supreme Court, and that in the exercise of supervisory power over the awards the court shall have a broad discretion, and that “it reviews questions of fact as well as of law.” (Opinion, p. 278.) We conclude, therefore, that this court has jurisdiction to review the order involved in the appeal now before us.

During the hearing before the commissioners, the petitioner called one Sid way as a witness and sought to prove a conversation in which the owners or one of them admitted facts material upon the question of value of the property in question. Witness said: “I am uncertain in my own mind about it, and I would not wish to state here ” what was said by the owners as to the value. Witness then said: “My impression is- — there was an objection made that it was incompetent, etc.; the ruling was to hear the evidence, the presiding commissioner remarking “we will hear the evidence as I suggested; it would not have a great deal of weight with me; at the same time I think it is competent:” * * * This was followed by the question: Q. “ G-ive us your impression ? ” His answer was, viz.: “ My impression is I thought the place could be sold for $30,000; that is my impression ; and the reply lie made to it was that he would be glad if he could get it.” Petitioner’s counsel put the following question, viz.: “ Q. Didn’t he say he would be glad if he could get less, and name a smaller sum ? ” A. “ I couldn’t say as to that; I am under the impression it was in that neighborhood; I couldn’t say.” We are urged to disregard the objections made, upon the ground that had the objection been made-more specific the difficulty would have been obviated. We do not think so. The witness had stated that he was uncertain in his own mind and did not wish to state the conversation. He was then pressed with a question, and began to give his impression, and then the counsel promptly, in behalf of the landowners, objected, saying, I object to that on the ground it is incompetent,” and also .stated other grounds. Then follows the ruling we have quoted.

It then appears that the impression was taken in respect to the vital point of the conversation. We think the objection was sufficient, and that the Special Term was right in saying that the •objection was improperly overruled. When a party has once raised a proper objection, and it has been overruled, “ it need not be repeated to the same class of evidence,” and counsel need not vex the court with a renewal of the objection every time the like class of evidence is offered; one error is as fatal as more, and it may be presumed the court will adhere to the rulings announced. (Dilleber v. Ins. Co., 69 N. Y., 260.)

We have repeatedly held that when a witness states that he has no recollection or memory of a conversation or past event, it is error to allow him to be pressed into giving his impression. (Bump v. Summer, Fourth Dept., June, 1879, followed in Wilder v. Peabody, 21 Hun, 376; Swan v. People, 13 Weekly Dig., 519; see, also, Weber v. Kingsland, 8 Bosw., 440, opinion of Woodruff, J.; Smith v. Sergent, 67 Barb, 243; Riggs v. Taylor, 9 Wheat., 483; Butler v. Benson, 1 Barb., 526; Gutchess v. Gutchess, 66 id., 483.)

So far as Carr v. Breese (81 N. Y., 592) bears upon the question, it is a support of the cases already cited. It is said that it was error to allow a witness to state that from a conversation alluded to he understood ” a certain fact. We agree with what is said in the opinion of the Special Term judge, in regard to the error committed by receiving the impression -of the witness, as to what the conversation actually was which was inquired into. We think the case a proper one for ordering a new hearing, and that the broad •discretion of the court was properly exercised. (R. R. v. Marvin, supra; sec. 18 of the Gen. R. R. law, chap. 140 of 1850; 2 R. S. [7th ed.], 1552.)

It was a matter of discretion in the Special Term, whether the ■new hearing should be had before the same or other commissioners. We are satisfied with the order in that regard, and find no occasion-to give any other directions in regard to the new" hearing.

The order should be affirmed, with costs against the appellant.

Smith, P. J., and Barker, J., concurred.

Order affirmed, with costs.


text:
    In the Matter of the Probate of the Will of MILTOH BUDLONG, Deceased.

      ■Surrogate — when he cannot grant an allowance to a special guardian upon Ms ex parte application therefor — the provision as to costs and allowances should he inserted in Hie decree — Code of Civil Procedure, sec. 2558.
    'The probate of the will of the above named testator was contested by one of his daughters. She died during the contest, and the proceedings were revived in the name of her minor children and her husband, a special guardian being appointed for the children. On December 27,1883, a decree of the surrogate admitting the will to probate was entered, which did not award any costs to the special guardian. Thereafter, on December thirty-first, the surrogate, upon an ex pan'te application of the special guardian, and without any notice being given to any other person, granted an order allowing him $1,000, and directed that sum to be paid out of the estate:

      Meld, that the surrogate could not make the order upon an ex pa/rte application, and without giving notice thereof 'to the other parties.

      •Qucere, as to the power of the surrogate to award costs or allowances to the special guardian or executor, under section 2558 of the Code of Civil Procedure, where he has failed to insert any direction in regard thereto in the decree.. (Per Hardin, J.)
    Appeal by Isaac Budlong, special administrator, and Isaac Bud-long, Scbuyler Budlong and Levi S. Budlong, as executors, from two orders, one granted by tbe Surrogate’s Court of Monroe county, December 31, 1883, allowing tbe special guardian for minor contestants tbe sum of $1,000 for compensation, fees and disbursements ■as sucb special guardian, and directing tbe special administrator to pay tbe same out of tbe assets of tbe decedent, and tbe other granted January 25, 1884, denying a motion to set aside tbe said ■order of December 31, 1883, “as improvidently granted and unauthorized by law, or to modify tbe same.”

      J. A. Stull, for tbe appellants.

      John S. Morgan' and E. A. Mash, for tbe special guardian, respondent.
   Hardin, J.:

Louisa J. Cole, one of tbe daughters of tbe testator, contested tbe probate of her father’s will, and during tbe contest she died, and in June, 1883, tbe proceedings were revived in tbe name of her minor children and that of her husband, and the respondent was appointed special guardian for the minor children, and the proceedings were continued and the contest closed, the result being a decree of the surrogate made and entered December 27, 1883, overruling the contest and admitting the will to probate. The-decree did not award any costs to the contestants or the special guardian so appointed for the minors. Thereafter, and on the 31st day of December, 1883, upon an ex pmte application, without notice to any of the appellants or other persons interested in the estate, the surrogate granted an order allowing $1,000 to the respondent as special guardian, and directed that sum to be paid out of the funds of the estate by the special administrator. As no right to costs or allowances was perfect until December 27, 1883, we think the provisions of the Code of Civil Procedure apply, instead of any laws in force at a prior date. (Matter of Sexton, 1 Demarest, 3, and cases cited; Smith v. Castlers, 5 Wend., 81; Supervisors v. Briggs, 3 Den., 173 Moore v. Westervelt, 14 How. Pr. R., 279; Hunt v. Middlebrook, Id., 300; Matter of Mann, 4 Redf., 325; Forster v. Kane, 1 Demarest, 67.)

When pronouncing the decree upon the proceedings arising upon the contest of the will the surrogate had a discretion as to costs to be inserted in the decree, except so far as the same are regulated by positive provisions of law. (Code of Civil Pro., § 2558; Forster v. Kane, 1 Demarest, 67; Weed v. Paine, 31 Hun, 10.) The third subdivision of the section cited provides that no costs shall be allowed to an unsuccessful contestant of a will, “ payable out of the estate or otherwise,” * * * “ unless he is a special guardian for an infant, appointed by the surrogate, or is named as an executor.” * * * In pronouncing the decree, it does not appear that the surrogate made any award of costs, as in his discretion he might have done. When that decree was pronounced the parties presumably were before him to receive his decision, and he did not then exercise the discretion of the surrogate in the award of costs in’ a decree authorized by the first subdivision of section 2558.

That whatever costs are allowable should be inserted in the decree is apparent not only from the language of section 2558, but from the language used in section 2559, which declares, viz., “costs when awarded by a decree, include all disbursements of the party to whom they are awarded, which might be taxed in the Supreme Court. The sum allowed for costs must be fixed by the surrogate and inserted in the decree.” It is not necessary to hold upon this appeal, that an omission to fix the costs and to insert them in the decree forever cuts off the right of a party to present the claim for costs to the surrogate.

It may be that in cases where they are inadvertently or by mistake omitted, the surrogate would have power to open the decree upon hearing the parties afresh. (Story v. Dayton, 22 Hun, 450.)

However that may be, we are of the opinion that after the surrogate has made and entered a decree, he has not the power, nor would it be a wise exercise of discretion by him, to grant an award of costs ex parte, without any notice being given to the persons representing or holding the funds of the estate. We are therefore of the opinion that the surrogate improperly allowed the order of December 31, 1883, ex parte and without any notice of the application for it given to the appellants. Parties interested in a fund in a court of equity, or within the jurisdiction of the surrogate, should have notice of proceedings and applications for the disbursements thereof. (Du Bois v. Brown, 1 Demarest, 333; Rollins, surrogate.)

We ought therefore to reverse the order of December 31, 1883, awarding to the special guardian $1,000. Without considering the merits of the order of 25th January, 1884, which denied an application to se,t aside or open the order of the 31st of December, 1883. We think we should reverse it at the time we do the order of the 31st of December, 1883, as that will leave the way open for any application that may be deemed advisable. As the question of practice involved in this appeal is novel, and as we are not prepared to say the application by the special guardian was not in entire good faith, supposing the practice adopted to be orderly and regular, we may properly reverse the orders, without costs to either party as against the other.

Sihth, P. J., and BARKER, J., concurred.

Orders appealed from reversed, without costs.