text:
    SAMUEL SAMUELS, Respondent, v. THE EVENING MAIL ASSOCIATION, Appellant.

      Action for libel — statement of plaintiff— injury to feelings— damages.

    In this action, brought for the publication of an alleged libel, the answer set up certain mitigating circumstances, and denied that there was any malice on the part of the defendant, or any injury sustained by the plaintiff. Upon the trial defendant offered to prove a conversation between its general manager and the plaintiff, in which the latter stated that he had sustained no damage; that he was quite ready to withdraw the suit, as he had not been injured at all; and that he would have withdrawn it, were it not for his lawyers, who had taken the case for what they could get out of it; which conversation was, upon plaintiff’s objection, excluded. Held, that the conversation was admissible to show the plaintiff’s own estimate of the damages he had sustained.
    The action of libel can only be maintained upon the ground of injury to the character and reputation; an injury to the feelings is not enough.
    Appeal from a judgment in favor of the plaintiff; entered on the verdict of a jury, and from an order denying a motion for a new trial, made on the minutes of the court, in an action brought for the publication of an alleged libel.

      Henry H. Anderson arid Howard Mansfield, for the appellant.
    The retraction of the libel was competent evidence in mitigation of damages. (.Knobell v. Fuller, Peak’s Additional Oases, 189; Ea/rl of Leicester v. Walter, 2 Camp., 251; Hotchlciss v. Ollyphant, 2 Hill, 510; O’Cornier v. O’Conner, 211nd., 69.) The statements of the plaintiff were admissible upon the general principle that the declarations of a party to the record against his own interest are evidence for Ms adversary. The plaintiff assumed to know, and was most likely to know, the effect of the publication of the article, and the jury was competent, and should have been permitted to weigh his declarations in this regard, where made against himself, with all the other evidence, in determining the damages. (Greenl. on Ev., vol. 1, §§ 171, 172; Richa/rdson v. Baker, 7 Ind., 567; Phila. and Reading R. R. v. Quigely, 21 How. [U. S.], 214.) The judge erred in charging the jury that they could include in the damages compensation to the plaintiff for injury to his feelings. Pecuniary loss to the plaintiff is the gist of the action for libel, and the foundation of the right to recover damages. If the language published has not occasioned pecuniary injury, actual or implied, then no action can be maintained. (Townshend on Slander and Libel, § 56 ; see, also, cases collected in note, on page 103 ; Onslow v. Rome, 3 Wilson, 177; Viele v. Gray, 10 Abb. Pr., 7.) In an action for libel the law does not give directly any remedy or compensation for outraged feelings or sentiments, but only for injuries to person, property or reputation. (Menee on Libel, p. 333; Townshend on Slander and Libel, pp. 97, 298,489 ; Raythorne v. Lawson, 3 Oar. & P., 196; Terwilliger v. Wands, 17 N. V., 54; Wilson v. Goit, id., 442 ; Greene v. R. R. R. R. Go., 32 Barb., 25.) Injuries to the feelings “being unconnected with any substantive right, are incapable of pecuniary admeasurement.” They admit of no precise definition, are determinable upon no principle whatever, but would, if allowed as a subject of legal remedy, tend only and in every case to produce excessive damages. (Starkie on Slander and Libel [Com. 3d Eng. ed.], p. 41; Holt’s Law of Libel, p. 222.)

      Robert Seioell, for the respondent.
    If the defendant had not pleaded any facts in mitigation, it, perhaps, might have shown the retraction under a general denial; but, having undertaken a special plea, it was bound to make it as full as it desired. To state that it would rely on some facts in mitigation, and then on the trial offer others, of which the plaintiff had not been notified, would be an abuse which should not be allowed. {Bush v. Prosser, 11 N. Y., 347; Bisbey v. Shaw, 12 id., 67; Van Bensehoten v. Tapie, 13 How., 97; Code, § 149 j MoKyrvng r. Bull, 16 N. Y., 297.) The offer to show that the plaintiff sustained no damage by the libel, was properly overruled. The law implies damages from the publication of a false and malicious statement. It is one of those implications which are so strong that the law will not permit them to be denied. No special damage was alleged, and no proof on the subject of damages was offered by the plaintiff. The offer to show that the plaintiff said he was willing to withdraw the suit was not admissible, because it was not pleaded, and because it was not binding, for it was not accepted. (Sanderson v. Caldwell, 45 N. Y., 401; Sussdorf v. Smith, 55 id., 319; McHyring v. Bull, 16 id., 297; FryY. Bennett, 4 Duer, 247; Fry v. Bennett, 9 Abb. Pr., 45 ; affirmed, 28 N. Y., 324; Fry v. Bennett, 5 Sandf., 76; affirmed, 6 N. Y., 209; Ba/ylis v. Lawrence, 11 Ad. & Ell., 924.) The exception to the charge of the judge, that the jury had a right to compensate plaintiff for injury to his feelings, was not well taken. The charge recognized the most elementary principle of the law of libel. Injury to feelings is of the very essence of general damages. True, such injury cannot be pleaded as ground for special damages. The reason is because the jury can give it without proof. (Taylor v. Church, 8 N. Y., 461; Tillotson v. Chatham, 3 Johns., 56 ; Littlejohn v. Creeley, 13 Abb. Pr., 41-311; S. 0., 22 How. Pr., 345 ; Fry v. Bennett, 4 Duer, 247; Swift v. Diakerman, 31 Conn., 284; Commonwealth v. Norfolk, 5 Mass., 437.) In an action where exemplary damages are allowed, as in this action, the court will not interfere, on the subject of damages, with the verdict of a jury, except in the most extreme cases. It must be clear to the court, from the amount of the verdict, that the jury was governed by prejudice, passion or corruption. The court, in the following eases, refused to set aside verdicts for being excessive; the amounts of the verdicts are set opposite to the cases : Bell v. Howard (4 Litt., 117), $1,000; Sanders v. Johnson (6 Black., 51), $2,736; Litton v. Young (2 Mete. [Ky.]), $4,000; Tribmball v. Gihlons (N. Y. Jud. Hep., 1), $15,000; Fry v. Bennett (4 Duer, 247), $10,000; Gfroever v. Hoffman (16 Up. Oan., 441), $5,000; McDougal v. Sharp (1 City H. Bee., 154), $3,500; Townsend v. Hughes (2 Mod., 150), £4,000, equal to $20,000; Ltoe v. Hcmkins (1 Lev., 97), £700 ; Leeman v. Allen (2 Wils., 160); Boa/rdma/n v. Campion (id., 244).
   Davis, P. J.:

This action was brought for the publication of ah alleged libel. The defendant in its answer sets up certain mitigating circumstances and denies “ that at the time of the alleged publication there existed any malice on the part of the defendant or any person or persons connected with the said Evening Mail newspaper, and that the plaintiff was in any manner or to any pecuniary extent injured in his reputation or in his good name or credit ás a mariner or otherwise, from or by reason of the alleged publication.”

On the trial the publication of the alleged libel was proved, and the plaintiff himself gave evidence to show that the statements of the libellous article were untrue. Evidence was given on the part of the defendant showing that the article was furnished to the defendant by an employe of the New York News Association, known as the city editor' who testified that he received .the information in the article from one of the regular reporters of that association and fully believed it to be true, and that he sent it to the defendant in the course of his business as such editor. The general ,manager of the defendant was called as a witness, and testified in substance that he first saw the article after it was published, on the day of publication; that he called upon the editors to publish a retraction, and that a retraction was published the next day. The retraction as published was produced and offered in evidence. It was objected to by plaintiff’s counsel, on the ground that no retraction was pleaded in the answer. The court excluded it, and the defendant’s counsel excepted.

The witness then testified that he had a conversation with the plaintiff after the suit had been commenced, and was asked to state the conversation. The plaintiff’s counsel objected to the admission of the-evidence, on the ground that there was no plea of justification or release, and that there was no issue upon which a conversation with f plaintiff after the publication of the libel could be admitted in evidence.” Defendant’s counsel then offered to prove a conversation between the plaintiff and witness, in which the plaintiff stated : first, that he had sustained no damage from the publication of the article; second, that he was quite ready to withdraw his suit, for he had not been injured at all; and, third, that he would have withdrawn it were it not that it was under the control of Ins lawyers, who had taken it for what they could get out of it. The evidence was excluded by the court, and defendant’s counsel excepted.

The only question”submitted to the jury by the court was as to the amount of damages which the plaintiff had sustained by reason of the publication of the article. In the course of his charge upon that subject the judge said: “If you find that he [the plaintiff] has been damaged by reason of this publication, whatever amount you may find he has been injured, either in character or feelings, that amount he is entitled to recover at your hands.” Defendant’s counsel objected to that portion of the charge which stated that the jury had the right to give compensation to the plaintiff if they found he had been injured in feelings. The jury gave a verdict for the plaintiff for $2,500. A motion was made on the minutes • of the court for a new trial, on the ground that the- amount was excessive and that the verdict was not justified by the evidence. The motion was denied, and defendant’s counsel excepted.

There was no question for the jury in this case except one of damages; but on that subject the question whether the defendant was actuated by. malice was one of grave importance. The defendant in its answer denied all malice in the publication, and it very clearly had the right to show in mitigation of damages any facts tending to show the absence of malice. The fact that a retraction was immediately made, in the next issue of the paper following the publication of the libel, was competent under the circumstances to bepioved on the question of malice, for the purpose of showing that the defendant was not actuated by that intent to injure the plaintiff which the law will infer from the mere act of publishing the libel.

The defendant had the right also to show that as soon as the attention of its managing agent was called to the publication, he sought to arrest the further operation of the injury done to'plaintiff, by prompt retraction. This fact was excluded because it had not been pleaded. We are of opinion that it was competent, under the pleadings, which contain an explicit denial of all malice, to put the retraction before the jury for their consideration in estimating the plaintiff’s damages.

The offer to show the conversation with the plaintiff after the suit bad been commenced, appears to us to have been improperly excluded. It was not offered as a justification or release, and the objection on that ground was not well taken. The other objection that there was no issue upon which the conversation with plaintiff after the publication of the libel could be admitted, was equally unfounded. What the plaintiff' had said on the subject of the damages he had sustained, was competent to go to the jury, not as a complete defense, nor as a release, but an expression of his own estimate upon the question which they were to consider; and his declaration that he was quite ready to withdraw his suit, and would ■have withdrawn it were it not that it was under the control of his lawyers, who had taken it for what they could get out of it, was also competent, not for the purpose of showing that the lawyers had so taken the suit, but as bearing upon his own estimate of the injury he had suffered by the publication. The objections made were not sufficiently specific to point out as objectionable that part of the statement that the lawyers had taken it for what they could get out of it, which, if objected to as an independent fact, might properly have been excluded; but the objection was not to show that statement as an independent fact affecting the rights of the plaintiff to maintain the action, but merely as part of a conversation expressing his appreciation of the extent of his own injuries. We are of opinion that the evidence should have been admitted.

It is not necessary to determine whether the part of the charge excepted to was erroneous or not. It is very doubtful whether, in the form it was put by the learned court, it could be sustained. The action for libel can only be maintained upon the ground of injury to the character or reputation of the plaintiff; and where no such injury has been sustained, it is not enough that the jury shall be able to find that the feelings of the plaintiff have been injured. The learned judge, in this part of his charge, said, substantially, that the plaintiff might recover for an injury either to his character or to his feelings; which, in effect, left them at liberty, even if they found that his character had not been injured, to estimate damages because the plaintiff’s feelings had been wounded. That rule would permit an action to be maintained in a case where the libelous or slanderous charge had been communicated to no person but the plaintiff; because in such a case the jury might well find an injury to the feelings of the plaintiff, though it would be impossible, for want of publication, to find any injury whatever to his reputation. It is doubtful under the authorities, whether it was proper in this case to give to the jury as a specific element of damages, the injury to the feelings of the plaintiff; but whether that be so or not, it seems to us quite incompetent to submit such injury as a basis of recovery, independently of injury to character.

We think the judgment must be reversed and a new trial granted, costs to abide the event.

Daniels and Brady, JJ., thought that the retraction was not admissible under the answer, but concurred in reversing the judgment and ordering a new trial for the other reasons stated in the opinion of Davis, P. J.

Judgment reversed and new trial granted, costs to abide event.


source: Caselaw Access Project

author: Davis, P. J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE NEW YORK DISPENSARY, Respondent, v. ANDREW H. GREEN, Comptroller of the City of New York, Appellant. THE PEOPLE OF THE STATE OF NEW YORK ex rel. MARY A. SCHANCK, Executrix, etc., Respondent, v. THE SAME, Appellant.

      Common council of New York — power of, to make lease — who to sign— Comptroller to indorse thereon a certificate that there is a sufficient appropriation to pay the amount to fall due in the current fiscal yea/r.

    Under the charter of the city of New York of 1873 (chap. 335 of 1873), it is not a part of the duties of the comptroller to execute leases on behalf of the city, and the common council cannot impose that duty as a compulsory one upon him.
    No lease executed in pursuance of the directions of the common council is of any force or effect until the comptroller, in pursuance of section 29 of the charter, indorses thereon a certificate that there remains unexpended and unapplied a balance of the appropriation applicable to the payment of rent upon leases, sufficient to pay the installments accruing during the current fiscal year, as they are certified to him by the officer making the contract. The certificate is not required to include the rent for the entire period of the term of the lease.

      The appeal in the first case is from a judgment sustaining a demurrer to the appellant’s return to an alternative mandamus, and in the second, from an order quashing the appellant’s return to an alternative mandamus.
    Each of these applications was for an alternative mandamus requiring the comptroller to execute leases of certain property in the city of New York, in pursuance of resolutions to that effect passed by the common council. The comptroller refused to execute them, on the ground that there was no money in his hands applicable to the payment of the rents to fall due under them.

      William O. WhiMey, for the appellant.

      A. G. Brown, for the respondent.
   Davis, P. J.:

In the first of the above entitled cases, the court, at Special Term, sustained the demurrer of the relator to the réturn of the comptroller, and ordered judgment thereon in favor of the relator. In the second, the court quashed the return of the comptroller as immaterial and irrelevant, and ordered a peremptory writ of man-’ damns. Both of the cases present substantially the same question. The point is now made on behalf of the comptroller, that the duty of executing leases ordered by the common council does not appertain to his office, and that he cannot be compelled by mandamus to execute such leases notwithstanding the common council, by resolution, have requested and authorized him so to do. This question does not seem to have been considered by the court below, and only indirectly to have been presented in one case; but it is one which must be considered here, because, in determining whether the writ of peremptory mandamus shall be issued by the court against a public officer compelling him to perform an alleged official duty, it is primarily important that it should appear that the duty and the power to perform it belong to his office, and are incumbent upon him as such officer.

By the act, entitled An act to reorganize the local government of the city of New York,” passed April 30th, 1873 (chap. 335 of the Laws of 1873, p. 484), the legislative power of the corporation is vested in. tlie common council, and no restraint seems to be imposed upon that power, so far as it relates to the making or taking of leases, except.what is found in section. 18 of the act. That section declares that the common council shall have no power * * * to take or make a lease of any real estate or franchise, save at a reasonable rate, and for a period not exceeding five years, unless specially authorized so to do by act of the legislature.” By fair inference from this language, the power to take a lease of real estate, for a period not exceeding five years, exists in the common council, and they have exclusive authority by an act of legislation, expressed by ordinance or resolution, subject to the approval of the mayor, to determine what leases shall be taken and made, and for what periods within the limitation of the section, subject however, as we think, before the lease can become a binding contract upon the city, to the provisions of another section of the act to which reference will hereafter be made. Where the common council have, with the approval of the mayor, resolved in due form to take a lease at a rent which they shall have determined to be reasonable, for a period not exceeding five years, the question arises, by whom shall the instrument expressing the terms of the lease and evidencing the obligations of the parties be executed on the part of the city? The only provision of the charter directly relating to that subject, is to be found in that section of the act which relates to the power and duties of the clerk of the common council amongst which are certain duties expressed in these words: “ He shall keep the seal of the city, and his signature shall be necessary to all leases, grants and other documents, as under existing laws.” The clerk of the common council is appointed and removed by that body ; their authority over him is exclusive of all other branches of the city government, and it is incumbent upon him to perform whatever legal duties may be imposed upon him by the council. The counsel in this case have failed to find any other provision of the charter directly relating to the execution of leases when ordered to be taken or made by resolution or ordinance of the common council. The comptroller is by the charter placed at the head of the finance department. His powers and duties are defined by article 5 of the chapter, and are to be found in sections 29 to 35, both inclusive. A diligent search of these sections fails to disclose any provision or language which imposes upon him the duty to execute leases when directed to do so by the common council. It is supposed by the counsel for respondent, that section 90 of the act confers power upon the common council to require the comptroller to do that duty; but a careful reading of that section shows that such requirement is neither within its scope or purpose. The language is: “ Whatever provisions and regulations, other than those herein specially authorized, may become requisite for the fuller organization, perfecting and carrying out of the powers and duties prescribed to any department by this act, shall be provided for by ordinance of the common council, who are hereby authorized to enact such necessary ordinances.” The effect of this provision is to authorize the common council to enact such ordinances as may become requisite for the perfecting and carrying out of the powers and duties prescribed to a department by the act. But it nowhere gives power to impose upon a department powers and duties not prescribed by the act. Finding the duty to execute leases ordered by the common council nowhere expressly imposed upon the comptroller as a part of his official duties, and no express authority given to the common council to require him to do that act, it is essential to ascertain whether the duty is imposed indirectly or by implication. It is in its nature a ministerial duty, the act to be performed being one which any officer of the city if empowered by law could as well do as another, because its effect is simply to evidence in authentic form the leases which the common council have directed to be made. There is no solemnity attending that act requiring it to be performed by the comptroller in preference to any other officer; and in the specification of the duties imposed upon him, there is nothing in their nature which makes it essential or important that he should give official evidence or sanction to the act of taking or making a lease when ordered by the legislative department. There is, however, one duty devolved upon him to which reference has already been made, which seems in some degree incompatible with the duty of executing a lease taken by the city. It is found in the twenty-ninth section, in these words: “No contract hereafter made, the expenses of the execution of which is not by law or ordinance, in whole or in part, to be paid by assessments upon the property benefited, shall be binding or of any force or effect, unless the comptroller shall indorse thereon his certificate that there remains unexpended and unapplied, as herein provided, a balance of the appropriation applicable thereto sufficient to pay the estimated expense of executing such contract, as certified by the officer making the same. It shall be the duty of the comptroller to make such indorsement upon every such contract so presented to him, if there remains unapplied and unexpended such amount so specified by the officer making the contract, and to thereafter hold and retain such sum to pay the expense incurred until the said contract shall be fully performed; and such indorsement shall be sufficient evidence of such appropriation in any action.” This language is extremely general, and seems to embrace in its terms all contracts made by the city which are not therein expressly excepted. A lease taken by the city, upon which rent is reserved to be paid' from time to time by the corporation, seems clearly to fall within this provision. The expenses of its execution are very clearly the payment of the several installments as they respectively become due; and the provision declares in effect that the lease shall not be binding or of any force or effect unless the comptroller shall indorse thereon his certificate that there remains unexpended and unapplied a balance of the appropriation applicable thereto, sufficient to pay the estimated expense of executing such contract, as certified by the officer making the same.” W e think the true construction of this section requires that the comptroller, upon all leases made for a term of years, is to certify whether there remains unexpended and unapplied a balance of the appropriation applicable to the payment of rent upon leases, sufficient to pay the installments accruing during the current fiscal year, as the same are certified to him by the officer making the contract; and that it is not intended by this provision to require a certificate which shall include the rent for the entire period of the term of the lease. If the comptroller, therefore, be bound under the ordinance of the common council, to execute the lease, he himself becomes the officer who has to certify to himself what this provision of section 29 requires; and there is an apparent impropriety in requiring him, where there is no appropriation remaining- unexpended, sufficient to pay the current rents falling due within the fiscal year, to execute an instrument which he must immediately nullify by refusing to indorse his certificate upon it. It places him, under the construction that would impose the duty of executing the lease upon him whenever the common council shall request and authorize it to be done, in the embarrassing position of executing an instrument in form, which, in substance and matter of. fact, has no validity whatever, because of his inability to indorse upon it the required certificate. Recurring again to the duty imposed upon the clerk, of “ signing all leases,” it is apparent that the comptroller, if he executed the leases in question, could not make a perfect instrument under the law, because by statute the signature of the clerk and the corporate seal, which is by law in his custody, must still be affixed to the instrument. The comptroller has no power to compel the clerk to perform these acts; and if the clerk in any case should refuse to do them, it is manifest the lease would be an inoperative instrument; the act of 'the comptroller would in such case be an idle and ineffective one. Why then should it be required at his hands ? Why should courts be asked, by peremptory mandamus, to compel the comptroller to execute a lease which involves, legally speaking, the complete acts of signing, sealing and delivery,” when he can under the statute do at most only the first ? Besides, where the comptroller has signed a lease, and the clerk also has signed and sealed the instrument, it becomes somewhat questionable which of these officers is to make the certificate which authorizes the comptroller to make the indorsement upon the contract required by the twenty-ninth section of the charter. All these embarrassments disappear if we regard the power given to the clerk to sign all leases, and the authority which the common council possesses over him and over the seal in his custody to direct its use, as designating that officer as the more proper one for the execution of leases directed by that body.

It is alleged, however, that the question of the power of the common council to direct the comptroller to execute leases has been passed upon by the courts; and our attention has been called to several decisions made under the charter of 1857. (People v. Wood, 4 Parker, 144; People v. Connolly, 2 Abb. [N. S.], 321; People v. Lowber, 7 Abb. Pr., 158.)

In the case of The People v. Wood, in which the mayor, aider-men and commonalty of the city of New York were indicted for misdemeanor, the question was, whether those officers who had voted a lease for more than ten years, in violation of the statute, did an act which the charter declared to be a misdemeanor; and it was held by the learned judge (Mjjllin, J., presiding at Oyer and Terminer), that the defendants, by voting for the resolution to lease, were not liable for a misdemeanor, because the statute made the giving of the lease the violation which was designated as such misdemeanor. The resolution directed the comptroller to execute a lease of premises described therein, and the court incidentally discussed the power of the comptroller to execute such lease. The learned judge was under the impression that the power was conferred on the comptroller, as in the course of his opinion he says: “Again, by the city charter, the common council and mayor cannot make a lease. That power is expressly conferred on the comptroller, and the resolution conforms to the charter and leaves the execution of the lease to the officer who alone can rightfully make it.”

No doubt the legislature might confer this power upon the comptroller ; and whenever that has been done, his duty would be apparent.

The learned justice was probably mistaken in his assumption that the charter of 1857 did confer such power; but that was a point not material to his decision, which rested upon the ground, already stated, that the act declared a misdemeanor had not yet been consummated.

The other cases cited arose under the charter of 1857. Section 8 of that charter provided that the common council might establish other bureaus than those established by the act, and might assign to them, and to the departments and bureaus created by the act, such duties as they might direct, not inconsistent with the act. Under this provision power to execute leases might well be conferred upon the comptroller and exercised by him, and in the absence of the provision contained in section 29 of the present charter, as above quoted, there would be nothing-inconsistent in so doing with the powers expressly conferred by that charter.

The cases cited are not, therefore, in conflict with the views now expressed, and with the construction due to the charter of 1878, although the courts in each of them consider the comptroller to have been the proper officer to execute the instruments. We feel constrained to hold that under the charter of 1873, it is not a part of the duties of the comptroller to execute leases on behalf of the city; that the common council cannot impose that duty as a compulsory one upon him. The more proper officers are, we think, the president of the council and his clerk, and particularly the latter whenever the resolution of the common council shall direct him to execute the instrument.

The orders of the court below must therefore be reversed, and the writs of mandamus denied.

Daniels, J., concurred.

Ordered accordingly.


text:
    GROCERS’ BANK OF CITY OF NEW YORK, Respondent, v. BERNARD O’RORKE, Appellant.

      Answer — when cannot be striclcen out as sham —frivolous cmswen’.

    A verified, answer, in winch the defendant avers “that he has no knowledge or information sufficient to form a belief as to the truth of any of the allegations in said complaint contained,” cannot he stricken out as sham.
    Section 347 of the Code, authorizing the court to order judgment upon a frivolous answer, only applies to cases in which the answer as a whole is frivolous, and not in which parts are frivolous and parts are good.
    Appeal from an order of the Special Term, directing judgment for plaintiff on the ground that the answer was frivolous.
    The action was brought on an “ undertaking on appeal from a judgment directing the payment of money,” which was made and filed by the defendant and his co-defendant, in the month of May, 1874.
    The plaintiff’s complaint contained a full statement of the facts ' constituting the cause of action; a full description of the “ undertaking on appeal,” and of the justification of the defendant, and a copy thereof was annexed to the complaint, and formed a part thereof.
    The defendant’s answer was as follows :
      “ First. That some time in the month of May, 1874, he executed an instrument in writing on an appeal in an action in some court in the city of New York, in which the plaintiff in this action was plaintiff and John H. McKinley was defendant; but whether the said instrument is the same as the undertaking named in the complaint, the defendant cannot now state. The defendant, therefore, avers that he has no knowledge or information sufficient to form a belief as to the truth of the plaintiff’s allegations in regard to the execution of the undertaking upon which this action is founded, and he leaves the plaintiff to such proof in that regard as it may be able to make.

      “ Second. The defendant, further answering the complaint, avers that he has no knowledge or information sufficient to form a belief as to the truth of any of the allegations in said complaint contained.”

      Rasims 8. Ransom, for the appellant.
    Material allegations of the complaint were denied by the answer, and unless it was “ so clearly and palpably bad as to require no argument or illustration to show its character ” it ought not to have been stricken out as frivolous. {Strong v. Sjproul, 53 N. Y., 499 ; Young v. Kent, 46 id., 672; 22 How., 345.) The answer amounts to a general denial, and that puts the plaintiff to the proof of his allegation that the judgment appealed from, and alleged to have been affirmed, has not been paid. Under such a denial the defendant may prove payment, and for that reason alone the answer should be allowed to stand. (38 N. Y., 263; 47 id.', 430; 4 J. & S., 262 ; 41 N. Y., 349.) Upon the point that defendant was not bound to know of the judgment of affirmance, see Sherman <& Collins v. Bushnell (7 How., 171).

      Edmon <& B. J. Blankman, for the respondent.

      “ Where the facts are charged as the acts of- the defendant, he is bound to admit or deny.” {Slocm v. Little, 3 Faige, 103.) The Code requires a denial, and a call for proof cannot be regarded, in form or substance, as the denial contemplated by the Code. {Bently v. Dorcas, 11 Ohio St., 398.) Where the defendant has information, as in the present case, he cannot use this form of an answer, and this was the practice in chancery. {Dunham v. Gales, Hoffman, 185.) In T/ierasson v. McSpedon (2 Hilt., 1), a denial upon information was held not sufficient. (Sayre v. Gushing, 7 Abb. Pr., 371; Elton v. Marl&ham, 20 Barb., 343; Efieols v. Jones, 6 How. Pr., 355; Wood v. Stcmiels, 3 Code R., 152; Mott v. Burnett, 1 Code R., [N. S.], 225; 2 E. D. Smith, 50; The People v. MeCumber, 18 N. Y., 315.) The allegations of the complaint may be conclusively presumed to rest within the pei-sonal knowledge of the defendant, namely, the making of the undertaking on appeal, and the justification on said undertaking as one of the sureties. He ought either to admit or deny the act. (Edwards v. Lent, 8 How. Pr., 28; Richardson v. Wilton, 4 Sandf., 708; FalesY. Hides, 12 How. Pr., 153; Lewis v. Acleer, 11 id., 163; Lawrence v. Derby, 15 Abb. Pr., 346, note.) The defendant having admitted, in the first part of his answer, “ that he executed an instrument similar to that upon which he is sued,” he cannot deny merely upon a want of information sufficient to form a belief. ( Wesson v. Judd, 1 Abb. Pr., 254 ; Thorn v. New Yorle Central Mills, 10 How., 20; Sherman v. Same, 1 Abb., 191.) The answer does not contain a defense to any fact of the plaintiff’s cause of action, and is therefore frivolous. (Hall v. Smith, 8 How., 149 ; S. C., 1 Duer, 649.)
   Davis, P. J.:

The court below struck out the defendant’s answer as frivolous, and gave judgment under section 247 of the Code. The second part of the answer is in these words: “ Second. The defendant, further answering the complaint, avers that he has no knowledge or information sufficient to form a belief as to the truth of any of the allegations in said complaint contained.” This was a general denial of all the allegations of the complaint, under section 149 of the Code, which provides that the answer must contain a general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief.

It has been held in various cases that an answer alleging that defendant has no knowledge or information sufficient to form a belief, makes a complete denial. (Flood v. Reynolds, 13 How., 112 ; Townsend v. Platt, 3 Abb., 325 ; Leach v. Boynton, id., 1; Livingston v. Hammer, 7 Bosw., 670.)

In Wayland v. Tysen (45 N. Y., 281), it was held that the court had no power to strike out, as sham, an answer consisting of a general denial under the Code, and in Strong v. Sprout (53 N. Y., 497), and Thompson v. Erie Railroad Oompcmy (45 N. Y., 468), it was held that the court had no power to order a judgment upon part of an answer as frivolous, when there was a part held good, and that the remedy, under section 247 of the Code, was only available when the answer as a whole was frivolous, and not where parts were frivolous and other parts good. It is not necessary therefore to determine whether the first part of the answer, if it stood alone, might not have been properly stricken out and judgment ordered because that part forms a portion of an answer which does not contain what the act and the authorities declare to be a general denial.

The cases upon which the learned justice in the court below proceeded, were necessarily overruled by the Court of Appeals, in Wayland v. Tysen (above cited).

We are constrained, therefore, to the opinion that the court below erred, and the order must be reversed, with ten dollars costs besides disbursements, and the motion denied.

Daniels and Brady, JJ., concurred.

Ordered accordingly.


text:
    JAMES DENNIS, Respondent, v. OLIVER CHARLICK, Survivor, etc., Appellant.

      Real es.ate broker — wJten entitled to commissions —in action against survivor — what evidence sufficient to establish joint contmet — statements made by swrvivor.

    A broker who finds a purchaser who makes an oral contract for the purchase of real estate with the owner, and stands ready to perform the agreement, is entitled to his commissions.
    Where one of two persons represents to a broker that he is authorized to act in behalf of the other, in an action for services rendered at the request of the former, brought against both, if the latter dies during the continuance of the action and it is continued against the survivor, it is not necessary to establish the joint character of the contract to such an extent as would have charged the deceased party thereunder had he remained a party to the suit. It is sufficient to show enough to establish such joint contract as against the survivor alone.

      The statements and representations oí the survivor are sufficient to charge him and entitle the plaintiff to recover.
    The answer to a letter written on behalf of the purchaser to the defendant, offering to carryout the contract, to the bearer of which defendant said: “No answer; it is all right:” held admissible as evidence.
    Appeal from a judgment, entered upon the verdict of a jury in favor of plaintiff, in an action brought to recover commissions for the procurement of a purchaser for property owned by Oliver Charlick and James M. Waterbury as tenants in common. A question arose on the trial as to the admissibility in evidence of a letter written to Waterbury, in which the purchaser consented to carry out the contract in pursuance of the agreement, to the bearer of which letter Waterbury said: “ No answer; it is all right.”

      W. A. Beach, for the appellant.

      I/uther R. Ma/rsh, for the respondent.
   Davis, P. J.:

This action was brought upon an alleged joint contract made by the defendant and one Waterbury. Pending the action Waterbury died, and the action proceeded against Charlick, as survivor. It was necessary on the trial to establish the alleged joint contract, but to do that it was sufficient to show enough to establish such contract as against the survivor alone.

The plaintiff gave evidence tending strongly to show that he was employed by Charlick, on behalf of himself and Waterbury to render services as a broker in finding a purchaser for premises belonging to both defendants; that he did find such purchaser; that an oral contract of sale was made between the purchaser and Charlick, in and by which the terms were mutually agreed upon, and an attorney was directed to prepare a written agreement in conformity with the oral one, which was done, and that the purchaser stood ready and willing to perform the agreement. This was enough, if satisfactorily shown, to entitle the plaintiff to his commissions. (Mooney v. Elder, 56 N. Y., 238; Lloyd v. Matthews, 51 id., 124.) The evidence also tended to show, that in making such agreement of sale, Charlick represented himself to be authorized to act in behalf of Waterbury. The proof of that fact is sufficient to establish, as against Charliek, the joint contract alleged in the complaint. The jury upon the evidence, under a charge presenting the question whether the contract was so made by Charliek upon such representations, found for the plaintiff; and after such finding it does not lie in the mouth of Charliek to say that the contract was not a joint one. It was not necessary to establish the joint character of the contract in this action against the survivor, to such an extent as would have charged Waterbury therewith had he remained a party to the suit. It is undoubtedly true that Charliek’s declaration of his authority would not have been sufficient, as against Waterbury, to establish the latter’s liability. But if Waterbury were still living, and the plaintiff had failed to show his assent to the contract, or that Charliek had in ■ fact authority to make it in their joint names, yet Charliek would have been so far bound by his representations, that a recovery could have been had against him, notwithstanding the plaintiff might have failed to entitle himself to a recovery against Waterbury. For if the representations of authority made by Charliek were untrue, the plaintiff would doubtless be entitled, under sections 136 and 274 of the Code, to recover against him individually, if the jury found that such representations were in fact made, because such facts would establish a cause of action upon which the plaintiff would be entitled to judgment against him if Charliek had been sued alone. (Speyers v. Fisk, 3 Hun, 706.) And if such representations were true, the plaintiff would in like manner be entitled to judgment in the present form of action, because, as against Charliek, the joint contract is sufficiently shown, and his liability is that of a survivor sued on a joint contract shown to have been made by himself in that form.

The exception to the admission of the letter addressed by Conklin to Waterbury, does not seem to us to be well taken: first, because it was not necessarily material for the plaintiff to show that Waterbury in fact assented to the terms of the agreement which Charliek had made, although that fact would have been a competent and proper one to have proven ; second, it was proper evidence to be given in the case, after proving a contract joint in form, to establish Waterbury’s assent, although the right to recover against Charlick was not necessarily dependent upon that fact. It was competent to prove the letter in connection with the reply given to the messenger who carried it, and to submit both to the jury for their determination, as to whether or not the reply was intended by Waterbury as an assent to the contents of the letter. If the reply was ambiguous, as claimed by the defendant, that fact rendered it peculiarly proper to be submitted to the jury. If it is questionable whether the notice to produce the letter was sufficient to entitle the plaintiff to give secondary evidence of its contents, yet, inasmuch as the facts sought to be proven by the letter were not material to the making out of a case against the survivor, we are inclined to think that the admission of the letter could have no prejudicial effect against him; besides, the defendant in his points makes no question upon the notice.

The other exceptions do not seem to be of sufficient importance to call for any comment.

The judgment should be affirmed.

Daniels and Brady, JJ., concurred.

Judgment affirmed.


text:
    ELBERT S. KIP and another, Respondents, v. THE NEW YORK AND HARLEM RAILROAD COMPANY, Appellant.

      Eminent domain — when action to restrain proceedings cannot be maintained— lands leased to raib'oad company may be toteen by the lessee — Proceedings to acquire land may be maintained by raib’oad after lease of its road to another’ company.

    An action cannot be maintained to restrain a railroad company from prosecuting proceedings instituted to acquire the title to land necessary for the purpose of its incorporation, on the ground that the statutes authorizing them is unconstitutional, when that question can be presented and passed upon in the proceedings themselves.

      Semble, that such proceedings may be maintained although the railroad company is in possession under a lease, as if the lands are acquired subject to the lease, the obligations of the lessee are not affected, and if the fee and leasehold estates are both acquired, compensation must be made for both.

      A company is not prevented from continuing such proceedings by the fact that it has, subsequent to the commencement thereof, executed a lease of its road to another company for a term of years.

      Semble, that such lease is valid.
    Appeal from a 'judgment of the Special Term, overruling a demurrer to the complaint.

      Wm. A. Beach, for the appellant.

      Elbridge T. Gerry, for the respondents.
   Davis, P. J.:

The demurrer is to both the original and supplemental complaints. The original complaint was filed to restrain the appellant from further prosecuting proceedings to acquire title to certain premises under the provisions of the general railroad act; and the substantial ground on which the injunction was sought is, that the statutes of this State authorizing proceedings to condemn lands for railroad purposes, “have no applicability to property which at the time is in the actual use or occupation of the company prosecuting the proceedings, and held by such company under an nnexpired lease from the owners, because the acts which permit the same would, if applied to such a case, impair the obligations of the lease and of its covenants and agreements, and therefore be violative of the provision of the Constitution of the United States which prohibits the passage of laws by the several States to impair the obligation of contracts.” The complaint proceeds of course upon the assumption that this court, in the proceedings mentioned as pending before it", may pronounce an erroneous judgment in violation of the Constitution of the United States, and that the suitor in those proceedings should therefore be prevented by injunction from asking the court to do so. The parties to the proceedings and to this action are the same, and the question of constitutionality of the legislative acts referred to, lies upon the face of both the action and the proceedings, and must in both be determined by the same court. In the proceedings, relief is sought which cannot be given in the present action if decided adversely to the respondent, and which must be obtained by the appellant in such or similar proceedings as those now pending and sought to be restrained, as there is no other mode provided by law. It would seem, therefore, an improvident waste of time to tie up by injunction, on a single legal question, proceedings in which that identical question must be adjudicated before any injury can occur to the owners of the land. But it is suggested that the question can be more directly and easily taken, after an adverse decision to the plaintiffs herein, to the ultimate constitutional tribunal, the Supreme Court of the United States, in this'action, than on the final decision of those proceedings. The fact is not very apparent, but if it were, it does not seem consistent with the dignity of our courts to enjoin proceedings provided by our laws for the determination of the eminent domain of our own State, in anticipation of an erroneous judgment, for the purpose of affording to the party who fancies himself in danger of injury from such a possibility, a shorter and easier process of carrying his anticipated grievance to a foreign tribunal. For this reason alone, the demurrer to the original complaint ought to have been sustained if it be deemed sufficient in form to raise the question under the Code.

But we think the rights of the parties (so far as affected by questions existing at that time) have already been determined by the Court of Appeals in the proceedings now sought to be restrained. In The New York and Harlem Railroad Co. v. Kip (46 N. Y., 546), that court held that those proceedings could be maintained to acquire title to the premises in question, notwithstanding the petitioner was then in possession and occupancy under the lease, which then had seven years to run ; and, in the language of Allen, J., that “ the taking of the lease does not create an estoppel against the application. The application is not to condemn the rent or the right to the rent for the term; it is to acquire the land, subject to the lease, the remedy which has become necessary for the purposes of the corporation.” (46 N. Y., 555.)

It is very clear that proceedings which recognize and preserve the lease and its covenants, cannot be said to impair the obligations of the contract. Nor do we suppose that if the proceeding to acquire title also sought to condemn the term created'by the lease, so that the land should be free from the lesser estate, it would be in any sense in conflict with the provision of the Constitution, provided such lease were recognized in its full force and effect and made the basis of compensation at its full value. This would not he to impair the covenants of the lease, but to recognize them at their full value, for the benefit of the lessors, by compensating the lessors for both the value of the lease and their estate in remainder in the lands. It is enough to say that in this case the railroad company cannot displace, or in any wise get rid of the obligations of the lease, if they acquire the land subject to the lease; nor if they acquire both estates in the land can they escape compensating the owner for the value of both.

The supplemental complaint is filed to bring before the court the subsequent lease, made by the New York and Harlem Railroad Company to the Hudson River and New York Central Railroad Company, of its railroad and all appurtenances for the term of 401 years, by reason of which it is insisted that the former company has ceased to carry on the railroad and to have any necessity for acquiring title to the premises of the plaintiffs. It is supposed by the learned counsel for the respondents, that the fact that the premises in question are not now required by the defendant for the purpose of its incorporation, is admitted by the demurrer to the supplemental complaint.” If this supposition were well founded, the demurrer could not he sustained. But on reference to the supplemental complaint, it will be seen that this fact is only argumentatively alleged. The plaintiffs say that, “ by the demises, assignments, conveyances and covenants in the said instrument and deed contained, the defendants, as these plaintiffs are advised and believe, have surrendered, waived and abrogated any and all right or interest to prosecute the proceedings mentioned in the original complaint in this action, or any proceedings, to acquire the lands mentioned in the original complaint for corporate uses of the defendants against the consent of these plaintiffs ; and have terminated and removed all necessity, if any necessity ever existed, which these plaintiffs deny, for the acquisition by the defendants above named of the said lands for the corporate use of defendants, so that such alleged necessity has ceased.”

The demurrer does not therefore admit, as a fact, that there is no necessity for the lands, but in effect insists that the deductions of plaintiffs from the facts stated are not legal and sound. The result is, that we are brought to determine the question whether the fact of making the lease and agreement, as set forth and recited in the supplemental complaint, has terminated the proceedings then pending, so that they cannot be continued by the appellant for the benefit of itself, or of its lessee, under such lease and agreement. In passing upon this question, we are not to shut our eyes to the state of the proceedings at the time the lease to the Hudson River and New York Central Railroad Company was made. The court of last resort had already decided that the case was one in which the right of eminent domain could properly be exercised; and, as the opinion of the court states, “ that the lands and premises, the title to which the applicant seeks to acquire by these proceedings, are required for the purposes of the corporation, is beyond dispute.” The lease of appellant demised to the lessee the term in the premises then held under the plaintiffs’ lease, and the use and occupation of the premises. It did not destroy or diminish the necessity for the title; but, so to speak, transferred the necessity for use and occupation of such lands, after title should be acquired, to the company'by which the railroad was to be carried on. In other words, the necessity for public use was not changed, but only the hand by which it is to be exercised. The fee of the railroad and its real appurtenances remain in the appellant. It is important that the fee should so remain, because, under the covenants of the lease, it may terminate by forfeiture at the end of any period of six months, and the right of re-entry may be exercised, and of course, at the expiration of the term, the landlord resumes all his rights of possession and occupancy. In the mean while the appellant is owner of the road, and interested in its maintenance and occupation. It has not divested, nor can it divest, itself of its obligations and duties to the State and to the public. In respect of them, it is performing its obligations and duties by the hands of its tenants, instead of more directly by the hands of its servants; but any failure of its tenants to perform such duties and obligations is its own failure, for which the State may summon it to direct accountability. The power of the State to exercise its right of eminent domain through this corporation whenever public interests and uses require its exercise, as determined by the judgment of a competent tribunal, is not gone by a change in the mode of operating the railroad. If that would be the effect, it would be the duty of the courts to hold the lease void as against public policy, in order that the duties and rights of the corporation toward the State and the public might stand in unimpaired vigor. We think, therefore, that it was clearly in the power of the appellant to continue the proceedings, the validity and necessity of which had already been adjudged by the courts, and that their restraint by action ought not to be permitted.

The demurrer was well taken, and the judgment of the court belowr must be reversed with costs, and judgment ordered for the demurrant with costs.

Daniels and Brady, JJ., concurred.

Ordered accordingly.


author: Davis, P. J. :

text:
    CHRISTIAN F. A. DAMBMANN, Appellant, v. HERMAN SCHULTING, Respondent.

      Appeal — waived by taking the benefit of order appealed from — extra allowance condition of discontinuance.

    When a plaintiff, having leave to discontinue an action upon the payment of defendant’s taxed costs and $100 extra allowance, paid the costs and the $100 under protest, and then appealed from so much of the order as allowed the $100 extra allowance: held, that plaintiff’s compliance with the conditions of the order was a waiver of the right of appeal.
    Motion to dismiss an appeal taken from so much of an order of the Special Term as granted an extra allowance.
    The order provided that the plaintiff have leave to discontinue the above entitled action, upon payment to the defendant’s attorney the taxed costs, and the sum of $100, granted as an extra allowance therein.

      William Watson, for the appellant.

      G. Bainbridge Smith, for the respondent.
   Davis, P. J. :

The order in this case provided that the plaintiff have leave to discontinue the above entitled action, upon payment to the defendant of taxed costs, and the sum of $100, granted as an extra allowance herein. The plaintiff appealed from so much of the order as awards the allowance of $100 to the defendant. But it appears that, before bringing this appeal, he had paid the costs and allowance, and availed himself of the leave to discontinue which the order gave upon the condition of payment. His affidavit states that he paid the $100 under protest. From the peculiar form of the order, we think he could not avail himself of its benefits, without complying with its conditions, and that his compliance with the conditions was a waiver of his right to appeal. This court held, in Qojjrn v. Colee (4 Hun, 616), that, in difficult and extraordinary cases, an additional allowance may be made, under section 309 of the Code, where the plaintiff discontinued the action before trial on payment of costs. It cannot be said, therefore, that the court below, in following that decision, acted in excess of its power ; and probably the appeal would only bring before us the question whether or not the discretion of the court below was improperly exercised under the circumstances of this case. If the appellant desired to review that question, we think he should have refrained from availing himself of the conditional leave given by paying the costs and allowance imposed, until he could bring the question before this court by appeal.

Motion to dismiss the appeal should be granted, but, under the circumstances, without costs.

Daniels and Brady, JJ., concurred.

Motion granted, without costs.


author: Daniels, J.:

text:
    CHARLES Y. ROOSEVELT and others, Appellants and Respondents, v. JAMES A. ROOSEVELT and THEODORE ROOSEVELT, Executors, etc., and others, Appellants and Respondents.

      Trust — power of ti'ustee to make advances to beneficia/ry — discretion as to — cannot be controlled by cowrt.

    Where personal property was given to trustees in trust to pay over the income to a cestui que trust during his life, and upon his death to pay over and transfer the said property to his issue, and in default of such issue to certain other persons, the trustees being authorized to make such advances out of the principal to the cestui que trust as they should deem most- conducive to his interests: held, that the trust was valid, and that the power to make advances was not repugnant to the gift of the remainder to the issue of the cestui que trust.

    The trustees were unqualifiedly directed to pay over and assign the property, upon the death of the cestui que trust, to his issue, or in default of such issue to certain other persons designated in the will, and were authorized to make the advances out of the capital. Held, that it was not intended to authorize the trustees to entirely subvert the trust by paying over the whole of the principal, but simply to place them in a position in which they could relieve the cestui que trust from emergencies which the income of the trust estate might prove insufficient to meet.

      Held, further, that whether or not any advance should be made and its amount was left entirely to the discretion of the trustees, and with this discretion the court could not interfere so long as the trustees acted in good faith.
    Trustees, to whom real estate has been devised, may be authorized to sell the same and reinvest the proceeds arising therefrom in other real estate to be held in the place of that sold.

      Belmont v. O'Brien (12 IT. Y., 394) followed.
    The same rule applied as to the inalienability of the income and profits of trust estates in personal, as in real property.
    Appeals from a judgment, entered upon the trial of this action by the court without a jury.
    James I. Roosevelt died on the 5th day of April, 1875, leaving a last will and testament, bearing date the 18th day of September, 1871, and thereby appointed John Q. Jones and the defendants, James A. Roosevelt and Theodore Roosevelt,'executors and trustees under the said will. The defendants James A. Roosevelt and Theodore Roosevelt qualified as executors and trustees, and are engaged in the performance of their duties. John Q. Jones has not qualified, and refuses so to do.
    The plaintiffs, children of the testator, requested and demanded that the defendants, executors and trustees, in part execution of the power and direction contained in the fifth clause of said will, should pay to them respectively an advance of $100,000 each. The executors and trustees admitted that such a payment would redound to the interests of said plaintiffs, and would be judicious, proper, discreet, safe, and conducive to the true interests of the said plaintiffs, who are beneficiaries under said will, but refrained from making such advances of the magnitude requested, for the reason that it would be contrary to the intent and will of the testator, and because they believed it unlawful to make payments from the capital of said personal estate, which would materially reduce or destroy the interests of the devisees in fee.
    The fifth clause of the will, upon the construction of which this litigation arose, is as follows :
    “ Fifth. All my personal estate not otherwise effectually disposed of, I give to my executors, or such of them as may qualify, and the survivors and survivor of them, in trust to divide the same into as many shares of equal value as I may have children living at my decease, and to set apart one of such shares for each child, to be invested in the names of my executors as trustees for each child respectively; and upon the further trust to receive the interest and income of each share, and apply the same to the use of such child during his or her natural life; and on his or her death to assign and transfer his or her share to his or her issue then living, according to their stocks; and if none, then to the brothers and sister then living of such deceased child; provided that the issue then living of a deceased brother or sister shall take, according to their stocks, the share which the parent would have taken if living. If either of my children should die before me, leaving issue living at my decease, such issue, if more than one, shall take in equal parts the share which otherwise would have been allotted to his, her or their parent, to be held, nevertheless, for their benefit during their respective minorities by my executors, as trustees in trust to receive the income thereof, and apply the same to the use of such issue respectively, during their respective minorities. Should either of the issue of a deceased child of mine at the time of my death be under the age of twenty-one years, I direct that the income of the share of real or personal estate, or both, given to or in trust for such minor, under this will, after providing for his or her support and education, in such manner as to my executors for the time being may seem suitable, shall be accumulated for the benefit of such minor until the expiration of his or her minority.
    “Should any of the devisees in remainder to whom I have given estates in fee on the death of the respective life beneficiaries, be at the time of such death under the age of twenty-one years, and die thereafter under that age, and leave no issue living at his or her decease, then his or her share of real estate shall go to his or her brothers or' sisters, if any then living, and the issue, if any then living, of deceased brothers and sisters, according to their stocks; and if none, to my other descendants, then living, according to their stocks.
    “ I authorize and empower my executors, should they deem it judicious and proper, to make advances in their discretion to each of my children, respectively, out of the capital of his or her share, from time to time and in such amounts as may seem safe and conducive to the true interests of the beneficiary.”
    The testator also authorized his trustees, “in their discretion, from time to time, to make leases, with reasonable rents and with suitable covenants, and for such lawful terms, not exceeding twenty-one years, as they may deem most beneficial; and, if in their judgment expedient so to do, to make sales and conveyances, from time to time, in fee simple, for such prices as they may deem just, investing the proceeds of such sales in other real estate, to be substituted in place of, and to be held upon the like trusts, and subject to the like powers, limitations and conditions as the real estate so sold.”
    'The plaintiffs brought this action, which was tried at the Special Term of this court.
    The justice before whom it was tried, found as conclusions of law:
    First. That the provisions of the fifth clause of said will do create a valid and existing discretionary trust, and vest in said executors and trustees, in trust, the absolute title of the personal estate referred to in said clause, to be disposed of as therein directed.

      Second. That said executors and trustees are authorized and empowered, should they deem it judicious and proper, to make advances, in their discretion, to each of the children of the testator, respectively, out of the capital of his or her share, from time to time, and in such amounts as may seem safe and conducive to the true interests of the beneficiary.
    Third. That the said executors and trustees are fully authorized and empowered by the said fifth clause of said will, should they deem it judicious and proper, and conducive to the true interests of the beneficiaries, Charles Y., Frederick, and Marcia O. Roosevelt, plaintiffs, to advance and pay to each of them the said sum of $100,000.
    Fourth. That the said executors and trustees having fully exercised the discretion and authority vested in them by the fifth clause of said will, and having, before the complaint herein was served, elected, decided, and promised to pay and make to the said plaintiffs, Charles Y., Frederick, and Marcia O. Roosevelt, such advancement and payment of $100,000, and being still willing to do so, and only refraining from making such advances because they are advised and believe that the making thereof would be unlawful, and contrary to the intent and will of the testator, as expressed in his last will and testament, and for no other reason, the said plaintiffs, Charles Y., Frederick, and Marcia O. Roosevelt, are entitled to the decree of this court in their favor, and the same is hereby ordered, directing, requiring, and authorizing the said executors and trustees to advance and pay over to each of them the said sum of $100,000.
    Fifth. That said executors and trustees, in the lawful exercise of the discretion and authority vested in them by the fifth clause of said will, if they deem it judicious and proper, and conducive to the true interests of the beneficiaries, may make advances to each of the children of the testator, respectively, out of the capital of his or her share, in such amounts, from time to time, as they may elect, even to the extent of the entire capital or share of each of said children.
    Sixth. That the interest of the grandchildren of the testator now living, and of those that may be hereafter born, and of any other persons entitled to the balance of the share of a child of the testator remaining in the hands of the executors and trustees after the death of said child, by the terms of the will, is an interest liable to be defeated by the exercise of the aforesaid discretion by the said executors and trustees.
    Seventh. That the said executors and trustees can legally sell and dispose of the' real estate of said testator devised to them in trust, and with the proceeds of such sale purchase other real estate, and hold the same upon like trusts, and subject to the same powers and conditions.
    The defendants, the executors, etc., and the defendants Cornelia Camochan Roosevelt and William Ouseley Roosevelt, by their guardian ad litem, appeal from every part of said judgment, except so much and such parts thereof as adjudge that the provisions of the fifth clause of said will do create valid and existing discretionary trusts, and vest, in trust, in the executors and trustees named in said will, and who have qualified, the absolute title of the personal estate referred to in said clause, to be disposed of as therein directed. The plaintiffs appeal from so much thereof as declares that a valid and existing discretionary trust is created by the fifth clause.

      Geo. G. De Witt, Jr., for the executors, appellants.
    Where a power is given to trustees to do or not to do a particular thing at their discretion, provided their conduct be bona fide, and their determination is not influenced by improper motives, the court has no jurisdiction to control the trustees in the exercise of that discretion. (Fink v. Thuisey, 2 Mad., 157; Lewin on Trusts, 449-454; Hill on Trustees, 765; Perry on Trusts, vol. 2, pp. 27, 508.) But it is always a question for the courts to determine, whether the action of the trustees in a given case is within the discretionary powers given them by the instrument of trust. (Trustees of Smith v. Northampton, 10 Allen [Mass.], 498; Mason v. Mason's Fxrs., 4 Sandf. Oh., 631 [old paging] ; also, 13 Barb., 475; Webster v. Buddington, 16 Sim., 177; Oostabadie v. Gostabadie, 6 Hare, 410; Forman v. Whitney, 2 Keyes, 165.) In construing the trusts established by the fifth clause of said will, we must be guided by the intention of the testator as gathered from his will; the power is to be construed according to what the testator intended, and not according to what the court thinks he should have done. (Mason v. Jones, 13 Barb., 461; Perry on Trusts, vol. 2, p. 35; Kerr v. Verner, 66 Penn. St.,
      326.) The remaindermen designated in said will have vested interests in the said capital of said personal estate, and it would not be lawful or consistent with the intent of the testator, and the said trustees are not authorized or empowered by any provision in said will, to make advances or payments from the capital of said personal estate to the extent of the entire amount of said personal estate, or of any large amount that would extinguish or materially reduce the interest of the remaindermen. (1R. S., 723, § 13; Perry v. Wood, 3 Ves., 204; Ha/wley v. James, 5 Paige, 321; Lcmrenee v. Bayard, 7 id., 75 ; Pond v. Bergh, 10 id., 140.) The trusts are perfect and complete. The discretionary power given to the trustees is a power authorized by the laws of this State. (Lewin on Trusts, 93.) When a gift is once clearly impressed with the character of a trust, a discretionary power, however ample, of controlling its application, will not alter that character. (Hill on Trustees, 103-108, and cases cited; also, see chap, on Discretionary Powers, id., 760-784.) The power is collateral to the trusts, and if it is too indefinite, the power becomes void and the trust remains valid. In fact, instead of a power destroying a trust, it often implies or creates a trust. (2 Story’s Equity Jur. [10th ed.], p. 314; Burroughs. Philoox, 5 M. & C., 73-92; Prendergrast v. Prendergrast, 3 Eng. L. and Eq., 16.)

      Edward T. Bartlett, for plaintiffs.
    The fifth clause, -as an entirety, creates a valid, discretionary trust. It is admitted that where the testator makes the discretion absolute in the donee, not only as to the time, the .manner and the objects, but as to the trust itself, then equity will not interfere to raise a trust. (Tiffany & Bullard on Trusts, 728; 2 Eonb. Eq., 2 bk. ch. 2, § 4, note [a?].) In the case at bar there is no discretion as to the trust itself. The trust is absolute, simply vesting in trustees a certain discretion within the limits of it. The following authorities show how common are trusts of this character: Penny v. Turner (2 Phillips, 493); Brown v. Higgs (4 Ves. Jr., 708); Brown v. Higgs (5 id., 495); Brown v. Higgs (8 id., 561); Richardson v. Chapman (2 Brown P. C., 318); Harding v. Ql/yn (1 Atkins, 469); Longmore v. Broom (7 Ves. Jr., 125); Griffiths v. Evans (5 Beav., 241); Withers v. Yeadon (1 Rich., Eq., 324); Collins v, Carlisle (2 B. Mon., 14);
      Bussell v. Kennedy (3 Brews., 438); Parsons v. Barber (18 Ves., 475); Pr&oost v. Clark (2 Maddock, 458); Forbes v. Ball (3 Merivale, 437); Burrough v. Philcox (5 Mylne & Craig, 72); Dominick v. Sayre (3 Sandf., 555). The trustees were authorized to make the advance to each child of $100,000, and having fully exercised their discretion in the premises, and elected and promised to pay to each child of the testator the said sum, refraining from such payment only for the reason that they were advised it would be contrary to the will and intent of the testator, a cause of action exists in favor of said beneficiaries, and the trustees may be compelled by the decree of the court to pay said amounts, if the court is satisfied that such payments would not be contrary to the will and intent of the testator.

      Geo. H. Yeoman, for plaintiffs.
    If there be any irreconcilable conflict in the two provisions as to the gift to the remainder-men and the power to make advances, then, under a well established rule of construction applicable to wills, the last provision must prevail over the first. (Bradstreet v. Clark, 12 Wend., 602 ; Grifim v. Ford, 1 Bosw., 123; 1 Jarman on Wills, 411, 412, 415, 416; Forms v. Beyea, 13 N. Y., 283, 284.) If the first legatee is authorized to spend or consume the principal for his own purpose, a subsequent limitation, to take effect upon a contingency, would be void on the ground of repugnancy. (Forms v. Beyea, 13 N. Y., 273; 8 Viner’s Abridgmt., 103; Flander v. Clark, 1 Ves., 9; S. O., 3 Atk., 509; Atty.-Qen., etc., v. Hall, Fitzgibbons, 314; Butterfield v. Butterfield, 1 Ves., 133; Bradley v. Paixoto, 3 id., 324; Boss v. Boss, 1 Jac. & Walker, 154.) In this will the trustees are empowered to pay over all to first legatees who then take it absolutely; and, under the authorities above cited, that renders void the limitation over to grandchildren. An old English rule of construction, in the case of two irreconcilable devises, approved in modern times by Lord Brougham, would give half the thing devised to each legatee. Here the whole devise is to the executors, but the irreconcilability is as to the disposition of the fund. {Norris v. Beyea, 13 N. Y., 283, 284, and authorities cited; Bradstreet v. Clark, 12 Wend., 602, and authorities cited; Saulsbury v. Denton, 3 Nay & John., 529; Fordyce v. Bridges, 2 Phillips, 497; Longmore v. Brown, 7 Ves., 124; Dobley v. The Atty.-Gen., 4 Viner’s Abridgmt., 485.) In all cases, however, the fiduciary words must be imperative on the donee; and if they confer a mere power or authority and leave it entirely discretionary to apply or not to apply the gift to the designated purpose, no trust will be created. (Hill on Trustees, 66, 102; Morriee v. Bishop of Durham, 10 Ves. Jr., 536; Ommamey v. Butcher, T. & R., 270; Gibbs v. Pvmsey, 2 V. & R, 297; Bull v. Yardy, 1 Ves. Jr., 270; Thorp v. Owen, 2 Hare, 607.) Under this will it is “ entirely discretionary ” whether the executors will hold for the grandchildren. It is not imperative, and therefore no trust for them is created. If a trust is intended but is not expressed, or is ineffectually created, or fails, the next of kin-are entitled. But if the person taking has a discretion whether to make the application or not, it is an absolute gift, not a trust. (10 Ves. Jr., 535.) This, then, becomes an absolute gift to the children of testator, or to executors in trust, to pay out to children. The discretion is in the executors, therefore the absolute gift is to them, as executors, for distribution to next of kin. (Brown v. Yeale, 8 Ves. Jr., 50, note; Ommaney v. Butcher, Tur. & Russ., 270.)

      Charles A. Peabody, for guardian ad Utem of infant defendants.
   Daniels, J.:

By the present controversy, two portions only of the testator’s will have been drawn in question. The first contained the disposition which he designed to make of his personal estate, and the provisions relating to that which are material to be considered, are all contained in the fifth subdivision of the will. These provisions are as follows:

“Fifth. All my personal estate, not otherwise effectually disposed of, I give to my executors, or such of them as may qualify, and the survivors and the survivor of them, in trust, to divide the same into as many shares of equal value as I may have children living at my decease, and to set apart one of such shares for each child; to be invested in the names of my executors as trustees for each child, respectively; and upon the further trust to receive the interest and income of each share, and apply the same to the use of such child during his or her natural life; and on his or her death to assign and transfer his or her share to his or her issue, then living, according to their stocks; and if none, then to the brothers and sisters, then living, of such deceased child; provided that the issue then living of a deceased brother or sister, shall take, according to their stocks, the share which the parent would have taken if living.
If either of my children should die before me, leaving issue living at my decease, such issue, if more than one, shall take in equal parts the share which otherwise would have been allotted to his, her or their parent, to be held, nevertheless, for their benefit, during their respective minorities, by my executors, as trustees in trust to receive the income thereof and apply the same to the use of such issue, respectively, during their respective minorities. Should either of the issue of a deceased child of mine, _ at the time of my death, be under the age of twenty-one years, I direct that the income of the share of real or personal estate, or both, given to or in trust for such minor, under this will, after providing for his or her support and education, in such manner as to my executors for the time being may seem suitable, shall be accumulated for the benefit of such minor, until the expiration of his or her minority. * * *
“ I authorize and empower my executors, should they deem it judicious and proper, to make advances, in their discretion, to each of my children, respectively, out of the capital of his or her share, from time to time, and in such amounts as may seem safe and conducive to the true interests of the beneficiary.”

And it will be seen at once that they have been so clearly expressed as to be free from all substantial ambiguity. It was the design of the testator that a trust should be.created in his personal estate for the benefit of his children, in equal parts or portions, to continue through their respective lives, and, at the decease of either, that his or her share should be assigned and transferred to his or her children; and if no children existed, then to his own surviving child or children, and that the trust should be subject to the discretion vested in the executors, as trustees, to make advances from the body of the trust estate to the respective beneficiaries or cestuis que trust.

The counsel for the plaintiffs have claimed, and urged with much ability, that the provisions contained, relating to the trusts, and those creating the power, are so far inconsistent that one or the other of them must be declared inoperative and void on account of repugnancy'. But no authorities have been cited or referred to which would justify that conclusion in this case. The authorities referred to are of an entirely different nature, and relate to cases where an unqualified right to consume the body of the estate was created without the intervention of an actual trust; while in the present case, a clearly defined trust has been created and provided for, which, at most, may be subverted by means of future contingent events. The trust was intended to be in whole or in part conditional. But it cannot, under any -well considered authority, be held void in its inception for that reason. On the contrary, it must continue in existence as long as that may he practical, consistently with the condition on which it has been made dependent.

Conditional trusts are not legal anomalies, and no good reason seems to exist for distinguishing them in this respect from legal estates. The right to subject their continuance to conditions, arises out of the authority possessed by the testator over the disposition which, in his j udgment, should be made of his property. He may bestow it upon others, either absolutely or conditionally, legally or equitably; and trust estates may, like legal estates, be rendered dependent for their future existence upon any proper legal condition; and the discretion to which the trust in this instance has been subjected, is in the nature of such a condition. Similar trusts existed in the cases of Palmer v. Wakefield (3 Beav., 227); Lyman v. Parsons (28 Barb., 564; 20 N. Y., 103), and Talbot v. Marshfield (L. R. [4 Eq.], 661). And no doubt was either suggested or expressed as to their entire legality. No class of estates has been more restrained by future conditions and conditional limitations than trusts, and yet they have uniformly been sustained and executed where no positive provision of law has been contravened by means of them. In Bramhall v. Ferris (14 N. Y., 41), a trust was created for the benefit of one of the testator’s sons, on the condition that his interest in it should cease upon a creditors’ bill being filed against him, or any other proceedings instituted for the purpose of reaching his interest and diverting it from the object intended by the testator, if a decree or judgment should be obtained therein. It was claimed that the trust could not lawfully be defeated by subjecting it to such a condition. But the court, in deciding the case, held the condition a lawful one, and that it was sufficient to defeat the trust. One of the opinions in the case was delivered by Judge Mitchell, who held that “ the father, when he made the will and codicil, owned the whole estate; he had the absolute power over it; he could carve out of it such interests as he pleased, if he violated no rule of law in doing so; he could give one-third to Myron, so long as he lived in this State, or so long as he lived out of it, or until a third person return from Rome or go to it, or any other similar arbitrary contingency, according to his will or caprice.” (Id., 48, 49.) And cases are cited by the learned judge, maintaining the existence of that power over property owned and bequeathed by the testator. (Id., 49-51; Shee v. Hale, 13 Ves., 404; Lewis v. Lewis, 6 Sim., 304; Cooper v Wyatt, 5 Mead., 482; Graves v. Dolphin, 1 Sim., 66; Brandon v. Robinson, 18 Ves., 429.)

In the most favorable view that can possibly be taken of the case for the plaintiffs, the trust was created and intended to continue until it might be subverted by the payment of its capital to the beneficiaries, under the discretionary authority over it vested in the trustees. That may or may not affect it, depending upon the manner in which the trustees shall find ’their discretion to be controlled by present or future circumstances. Until they act under this power given them as incidental to the trust, the trust estate will continue entirely unaffected by it. And when they do exercise their discretion, it will simply reduce, without destroying it, as long as any portion of the capital may remain unexpended.

It has been urged that the power of the trustees over the capital of the trust estate, by means of the discretion given them, is entirely unlimited. But that clearly was not the view which the testator took of it, or designed to express. For the authority given the trustees to make advances was qualified by the circumstance that they should be taken out of the share of the person receiving them, which could not properly be said to be the case if the entire share should be exhausted by such advances. The testator also contemplated and provided for the continuance of the capital of the trust to some extent through the lives of the respective beneficiaries, and that some of it would afterward certainly exist as a remainder. For he unqualifiedly directed the assignment and transfer of each share, at the decease of the person to be benefited by the trust, to his or her child or children, or if none existed, to the surviving beneficiaries. These provisions were all designed to be considered together, as the testator has expressed them. And, construed in that manner, it seems clear that he did not intend that the trust should ever be subverted entirely by means of the discretion vested in the trustees, but his object was simply to place them in a position in which they could relieve his children from emergencies which the income of the trust estate might prove insufficient to meet. This view is not only warranted by the language made use of, but, in addition to that, the ample condition of the capital of the estate tends to confirm the correctness of the conclusion. Each share in the personalty amounted to about the sum of $500,000, the income of which would ordinarily prove sufficient for the expenditures of one family. But if unforeseen events created demands for more than that, the trustees were invested with power to extinguish them, by advances made from the body of the estate. The testator evidently was góverned by the supposition that this discretion would be exceptionally used, and never extend so far as to defeat the trust altogether, • and the remainders primarily designed for his grandchildren ; and it should not be permitted to do so, unless circumstances of so imperious a nature should hereafter arise, as to render that substantially unavoidable, and which cannot now be reasonably anticipated.

The trustees should endeavor to preserve the capital of the trust with the remainders dependent upon it, as far as that can be consistently done with the relief included in their discretion, for the benefit of the beneficiaries, binder the power conferred upon them, they have already concluded that an advance-of $100,000 to each one of the testator’s three children would be proper, and their decision upon this subject will constitute a complete authority for its payment. They have undoubtedly exercised their best judgment upon this subject, and that is all that can be required from them, under the authority which the testator conferred upon them. They have the power, under the will, to make these advances, but they should do so in the uncontrolled exercise of their own discretion. That, the court has no power to increase or abridge, as long as the trustees act in good faith, as they certainly appear to have done in this instance; and for that reason, it should not by its judgment, as it has, direct and require the payments to be made; but the trustees should be left where the power in the will places them, at liberty to make them if they deem that to be j udicious and proper. Their views upon this subject may yet be changed by circumstances not known or not fully considered when their conclusion was formed, and the judgment should be restricted so as to leave them subject to any modifications or qualifications which they may deem just and proper at any time prior to the fact of payment. It should also be further modified so far as to leave the trustees at full liberty to make advances, from time to time, as the testator authorized them by means of the power, without declaring that they may be extended so far as to exhaust the share of either of the children in the trust. For that would be going further than the testator either expected or intended. Precisely how far the trustees may lawfully go in their advances cannot be practically defined. But it is sufficient for all present purposes to say, that they may lawfully do what the testator has declared ; and that is, to make such advances out of the capital of each share as they, from time to time, deem to he judicious and proper. To go beyond that is to exceed the power created by the will; and the judgment, as it now stands, seems to sanction that.

The testator, by his will, also created trusts for the benefit of his children in the rents and profits of his real estate not otherwise or differently disposed of. And as to that realty, he conferred upon the trustees the power, “ if in their judgment expedient so to do, to make sales and conveyances from time to time, in fee simple, for such prices as they may deem just, investing the proceeds of such sales in other real estate, to be substituted in the place of, and to be held upon the like trusts, and subject to the like powers, limitations and conditions as the real estate so sold.” The validity of this provision, has heen questioned, hut not seriously contested, upon the supposition that the change permitted hy it, from real to personal property, was inconsistent with the inalienable nature of trust estates in land. For that reason it was suggested that the decision in Belmont v. O’ Brien (2 Kern., 394), which is a direct authority in favor of the validity of the power, had been made upon an unsound construction of the statute. And the case of Kane v. Gott (24 Wend., 661), was relied upon in support of the criticism made. But the intimation there made, that the statute declaring trust estates inalienable related only to trusts in real estate, has not since been sustained. For the provision declaring that in all other respects than those provided for by the section prescribing the limits beyond which the absolute ownership of personal property shall not be suspended, the limitations of future or contingent interests in personal property shall be subject to the rules prescribed in the first chapter of the act in relation to future estates in lands, has been considered sufficient to render trusts in personal property also inalienable during the period for which they may lawfully be created. (3 R. S. [5th ed.], 75, § 2.) In Graff v. Bonnett (31 N. Y., 9), which was an action by a receiver appointed in supplementary proceedings for the purpose of reaching the proceeds of a trust in personal property, the cases of Kane v. Gott and Grout v. Van Schoonhoven (1 Sandf. Ch., 336), were considered exceptional and unsound upon this subject. The learned judge, who delivered the prevailing opinion, stated his views concerning these eases in the following manner : I think the great preponderance of authority is in the opposite direction, and that the rule has been recognized and acted upon for so long a period, and with such general acquiescence, that it has become a law of property and ou¿ht not now to be invaded; and I confess, if the question were an original one, I should be of opinion that essentially the same rule should obtain as to the inalienability of estates and interests in both classes of property, and in the rents and profits and income thereof, as otherwise the restrictions imposed upon the enjoyment and transmission of interests in one class of property might be readily evaded by a testator directing its conversion into another. For myself, therefore, I feel inclined to adhere to the rule as I think it is generally recognized, and to leave it to the legislature to sanction a departure from it,, if it shall be deemed advisable.” (Id., 13.) Judge JDenio dissented from the judgment of the court as it was maintained by the opinion of Judge Hogbboom, for the reason, among others, that trusts in personal property were not subject to the statutory provisions concerning trusts in real estate. Johnson, J., concurred with him; but four of the other judges voted for an affirmance of the judgment, without indicating any dissent whatever as to any of the grounds taken for that purpose in the prevailing opinion. In the following case of Campbell v. Foster (35 N. Y., 361), Graff v. Bonnett (supra), was considered a controlling authority on this subject. Judge Wright said that it was the principal question then discussed, and that the case turned upon it. He took the same view of the statute (id., 370-373), and added: “I regard this case as settling in this court the mooted question of statutory construction, making applicable to trusts of personalty the provision prohibiting alienation of the interest of the beneficiary in trusts of land, and as affirming the position of the late chancellor as to the non-alienability of the interest of a beneficiary in a trust to receive the income of personal property to his use.”

Under the doctrine of these cases there was no incongruity between the decision of Belmont v. O’Brien (supra) and the statute relating to trusts, and no foundation for the doubt suggested concerning its accuracy. The power created by this provision of the will was lawful, and the judgment, so far as it relates to it, should be sustained.

The judgment seems to be right in all respects, except those previously suggested. So far as it interferes with or controls the discretion vested in the trustees by the power to make advances, and declares that the advances may be continued until the trust estate in the testator’s personal property shall be wholly exhausted, it should be modified by striking out or rejecting those provisions; and, as modified in that manner, affirmed, with costs to all parties, to be paid out of the estate.

Davis, P. J., and Brady, J., concurred.

Ordered accordingly.