text:
    William H. De Mott, App’lt, v. Francis M. Kendrick, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed September 30, 1892.)

      V Appeal—Case.
    A statement in a case on appeal that “the foregoing are the minutes of all the testimonytaken and proceedings had onthesaid trial,” is not equivalent to a certificate that the case contains all the evidence, and is not suffi. cient to authorize a review of the questions of fact.

      2. Pabtnekship—Accounting.
    Annual adjustments of the accounts between partners upon the copartnership books, in the absence of proof of fraud or mistake, are binding upon them.
    3. Same—Dissolution.
    Where the partnership articles provide that when the rights of the parties are adjusted by agreement or by appraisers one should pay the other his just proportion, when his interest in the partnership should cease, the interest of such partner in the firm assets does not cease until there has been such adjustment, although he has in fact received the entire amount due him.

      Appeal from' a judgment in favor of the defendant for $422.38 damages and costs, entered in Oneida county April 10,. 1891, upon the report of a referee
    The action was for an accounting between the parties as members of the firm of F. M. Kendrick & Co., and for a judicial settlement of the affairs of said copartnership. The copartnership was dissolved May 9, 1889, by notice, given by plaintiff pursuant to the articles of copartnership between the parties.
    „ The parties entered into an agreement in writing June 19, 1883, by which they formed a copartnership. The agreement, was as follows:
    “ This agreement,' made this 19th day of .June, 1883, between F. M. Kendrick, of Utica, and W. H. De Mott, of the same place, is as follows: The parties hereto have this day formed a copartnership under the name of F. M. Kendrick & Co., to commence July, 1883, and to continue three years, and after that time until one of the parties hereto gives the other party three months’ notice that he puts an end to the partnership. This partnership and its business is manufacturing and selling cigars and tobacco, and such other articles and merchandise as are manufactured and sold by wholesale and retail dealers in that trade. That accurate and just books of account shall be kept of said business, and of all the dealings and business of said firm; of all purchases and sales, all goods manufactured, money received or paid out for any purpose, all moneys paid in or drawn out by the parties, and which shall contain a true and accurate account of all property, .money, dealings and business of said firm, and which books shall at all times be open to inspection and examination of each party hereto. That said Kendrick shall contribute as his capital to this partnership the sum of--. dollars, and the said De Mott shall contribute the sum of —-- dollars. The capital of said Kendrick to be the merchandise and property he shall purchase of the existing firm of F. M. Kendrick & Co., and such money as he shall contribute. The other party is to put in cash. Bach of said copartners shall have for services the sum of twelve hundred dollars per year, to be drawn out of the business monthly. The said Kendrick is to have and receive in the division of profits one-fifth of the whole thereof; the residue is to be divided between the parties in proportion to the capital contributed by each; provided, however, if the dividend to be divided to the said-shall not equal twelve per cent, upon his capital so contributed, then, in that case, said Kendrick shall not have and receive the said one-fifth of said profits. The losses and expenses to be borne in proportion to the capital contributed. Kendrick hereby puts into the firm the good-will of the business of the existing firm of F. M.. Kendrick & Co., and at the dissolution of this firm he is to have and retain the good-will of the business of this firm as his own right. At the dissolution of this partnership the said De Mott shall have and receive his just proportion of the property and effects of said copartnership. That an inventory of the same shall be taken by the parties hereto, and if unable to agree upon the value, two appraisers shall be selected, one by each, to value the same. If then unable to agree, said appraisers to agree upon a third, when the valuation of two shall control, and after deducting from the value of the property and effects of the firm what is then owing to other parties, together with bad debts and losses, said Kendrick shall pay to the said De Mott his said just proportion and part of said property and effects arrived at as aforesaid, when his interest ceases in the copartnership.’’
    The parties went into business under that agreement about the time it was made, and continued in business under it until May 9, 1889, when the partnership was dissolved. An inventory of the assets of the firm on May 9, 1889, was taken by the firm or its employees, but the parties did not agree on values. Mo appraiser was appointed by the plaintiff to put a value upon said assets, and no such appraiser was appointed by the defendant until after the commencement of this action. The value of said assets was not obtained in pursuance of said agreement.
    This action was commenced on the 16th day of May, 1889, and on the 25th of the same month the defendant served a notice on the plaintiff that he had appointed an appraiser to inventory the effects of the firm in accordance with the agreement, but no further steps towards an inventory by appraisers were taken.
    The assets.- of said firm on May 9, 1889, consisted of the following :
    Cash in bank.................................. $ 8,582 16
    Book accounts................................. 16,715 89-
    Leaf tobacco.................................. 6,184 69
    Pennsylvania ■ wrapper (leaf)..................... 888 50
    Other stock.,...........'...................... 8,181 81
    Fixtures...................................... 1,468 64
    $42,016 69
    The book accounts included in the above to the amount of $1,973.56 were of little or no value, and that sum should be deducted from the above total, leaving the assets at $40,043.13.
    The liabilities of said firm at the same date were as follows:
    Bills payable................................... $8,750 89
    To Groodier & Wolcott.......................... 125 00
    Total..................................... $8,875 89
    The assets for distribution between the partners on May 9, 1889, were of the value of $31,167.24.
    At the commencement of the business plaintiff nut in as capital $12,000 and defendant $21,475.15. On each February following the commencement of business, down to and including February, 1887, an inventory was taken, the accounts of the partners with the firm adjusted, profits apportioned, and the respective interests of each partner in the assets of the firm ascertained and credited to him in the books as his new capital. Plaintiff’s capital, as thus ascertained, in February. 1887, was $14,869.10, and defendant’s was $33,058.79.
    The profits of the. year ending in February, 1888, were $5,886.-41. Of these profits the defendant was erroneously credited with one-fifth, thus leaving less than twelve per cent on the capital of each partner to be apportioned to them. If the plaintiff had been credited with twelve per cent on bis capital, in accordance with the partnership contract, his new capital February 9, 1888, would have been $14,205.87, and defendant’s new capital would have-been $37,095.96.
    The profits of the year ending February, 1889, were $968.72. The plaintiff was entitled to his ratable proportion of this, based on his capital as above given, to wit: $268.35, and the defendant-was entitled to $700.37.
    Plaintiff should have been credited in February, 1889, as follows:
    Capital____■................................... $14,205 87
    Profits....................................... 268 35
    Other credits.................................. 1,703 45
    $16,177 67
    He was chargeable as follows:
    "Moneys drawn............................... 2,745 18
    His new capital was.............. $13,432 49
    Defendant should have been credited at the same time as follows:
    Capital........................................$37,095 96
    Profits........................................ 700 37
    Other credits.................................. 1,927 66
    $39,723 99
    He was chargeable at the same time with........... 1,903 29
    His new capital was.......................'.....$37,820 701
    On May 9, 1889, plaintiff was entitled to be credited
    with his capital............... $13,432 49
    Salary............. 333 33
    ' $13-,765 82
    He was chargeable with......................... 937 61
    Making his apparent capital May 9, 1889..........$12,828 21

      On the same date defendant was entitled to he credited
    with his capital..............................$37,820 70'
    Other credits.................................. 682 99-
    $38,503 69
    He was chargeable with......................... 1,026 20r
    Making his apparent capital May 9, 1889..........$37,477 49'
    The shares of the parties in the assets of the firm May 9, 1889, (found to be of the value of $31,167.24) based on their apparent, capital, as above stated, were as follows :
    Plaintiff’s......................................$ 7,948 07
    Defendant’s.................................... 23,219 17
    Plaintiff received on May 13, 1889, $1,000 of the funds of said firm, and on May 16, 1889, he received $7,200 of the funds of the firm, which sums he retained on account of hiS share in the partnership property;
    At the time of the dissolution of the firm there was an action pending, in which the said partners were plaintiffs and Timothy Dasey and Daniel M. Leahy were defendants, to recover of said defendants as guarantors the amount of an account owing to the' firm by one Collins, and included in the above mentioned book accounts, and valued at its face, to wit, $494.26. On March 11, 1890, the plaintiffs recovered a judgment in that action for $551.80 damages and $176.15 costs. Subsequently the plaintiff in this action executed and delivered to the defendants in that action a satisfaction of said judgment, and received from them $525. The foregoing are substantially the facts as found by the referee.
    As conclusions of law he found: “ That the value of the assets-of said copartnership at the time of its dissolution, May 9, 1889, was $31,167.24, and that plaintiff’s just proportion thereof was-$7,948.07, and that the defendant’s just proportion thereof was-$23,219.17.
    “ That in drawing and receiving from the partnership funds $8,200, plaintiff received $251.95 more than his just proportion of the firm’s assets, and defendant is entitled to recover that sum from the plaintiff, together with interest thereon since May 16,. 1889, amounting at this date to $28.43.
    “ That on receiving, May 16, 1889, the full value of his interest in the partnership property, plaintiff ceased to have any right or interest in said partnership property, and defendant became the owner of the assets of said partnership, and of the whole thereof, and defendant is entitled to judgment settling the accounts of the partners as above, and awarding to him all the assets of the partnership as of May. 9, 1889, including said claim against Collins of $494.26,- and his sureties Dasey and "Leahy.

      “Bach party shall pay his'own costs, but the party taking up this report and paying the referee’s fees may tax one-half thereof against the other party, and have due allowance therefor in the judgment herein.
    “Judgment is directed accordingly.”

      Matteson & De Angelis, for app’lt. Goodier & Wolcott, for resp’t.
   Martin, J.

—The case as settled contains the following: “ The foregoing are the minutes of all the testimony taken and proceedings had on the said trial.” An examination of the appeal book renders it quite manifest that the case as settled does not contain all the evidence given on the trial. Bone of the plaintiff’s exhibits, except the partnérship agreement, are to be found in the case, nor are the defendant’s exhibits A, B, C, D and F, set forth therein. Under the practice as it now exists, it is the duty of the appellant desiring to review questions of fact to see that the case contains a certificate that all the evidence has been included, or all bearing on the questions sought to be reviewed, and, in the absence of such certificate, the general term will not review such questions. Porter v. Smith, 107 N. Y., 531; 12 St. Rep., 479; Wellington v. Continental C. & I Co., 52 Hun, 408; 24 St. Rep., 678; Dwight v. The E., C. & N. R. R. Co., 29 id., 250. We think there was no such certificate as the practice requires.

■ If the above statement could be regarded as a certificate, it is hot in compliance with the practice. The statement is, that “ the foregoing are the minutes of all the testimony taken and proceedings had” not that the case contains all the evidence, or the foregoing is all the evidence, or all the evidence bearing upon the ■questions'sought to be reviewed. We are disposed to think that the case did not contain the-certificate required by the practice, and' that the court is not required to review any finding of fact in .the case where there was any evidence to support it.

We have, however, examined all the evidence contained in the appeal book, and think it was sufficient to justify the findings of fact made by the referee. The evidence discloses quite clearly -that in the month" of' February of each year, from the commencement of the copartnership until and including February, 1889, an inventory of the partnership property was taken by the firm, the accounts of the partners adjusted, the profits of the business apportioned between them, and the interest of each partner in the assets of the firm ascertained and credited to him in the copartnership books as his new capital. From the evidence before us we ■cannot say that the referee erred in treating these adjustments as binding upon the parties.

When we examine the evidence bearing upon the findings of the referee, and his statement of the accounts between the parties subsequent to February, 1887, we fail to find any evidence that would justify us in disturbing such statement and findings. ■

We are also of the opinion that the referee was justified in finding that $1,973.56 of the accounts which constituted a part of the assets of the firm were of no value and in deducting that amount from the firm assets to ascertain the true value thereof.

The plaintiff contends that the referee erred in holding that upon receiving the full value of his interest in the firm property on May 16, 1889, he ceased to have any interest in the partnership property and it vested in the defendant, including the claim for $494.26 against Collins as principal and Dasey and Leahy as sureties. We think the plaintiff is right in this contention.

The partnership contract provided that when the rights of the parties should have been adjusted, either by agreement or by appraisers, the defendant should pay the plaintiff “his said just proportion and part of said property and effects arrived at as aforesaid, when his interest ceases in the copartnership.” It will be observed that by the contract the plaintiff’s interest in the co-partnership, or its property, was not to cease or vest in the defendant until the partnership matters were adjusted, either by agreement or by appraisers, as pointed out in the contract. Before the commencement of this action the copartnership matters hacl not been adjusted, either by agreement or appraisers. Indeed, no such adjustment was ever had. Hence, when this action was tried the plaintiff retained an interest in all the partnership property, including the claim against Collins and others, and had the same right to settle that claim that the defendant had. Robbins v. Fuller, 24 N. Y., 570; Gillilan v. The Sun Mut. Ins. Co., 41 id., 376; Gates v. Beecher, 60 id., 525; Van Doren v. Horton, 19 Hun, 9.

The parties have, however, waived the provisions of the agreement as to the manner of adjusting their partnership matters, and have submitted their rights to the. adjudication of the courts, so that a determination of the questions involved in this case will be conclusive upon them. This being so, and the evidence bearing upon the question of the Collins claim being before us, we think the judgment should not be reversed, but modified so as to charge the plaintiff with the amount received on the Collins claim, instead of adjudging the claim to belong to the defendant. That the plaintiff has received more than his full proportion of the property of the firm, besides the amount received on the settlement of the Collins, Dasey and Leahy claim, was found by the referee, and the finding was justified by the evidence. Therefore, the sum received by him on that settlement justly belongs to the defendant. The judgment should, therefore, be modified by striking out that portion which awards the title to the claim against Collins and others to the defendant, and by adding to the amount of the defendant’s recovery the amount received by the plaintiff on such settlement, and as so modified, affirmed.

Judgment modified by striking out the portion thereof which awards the title to the claim against Collins, Dasey and Leahy to the defendant, and by adding to the amount of the defendant’s recovery the sum of $525, thus making the amount of the recovery by the defendant against the plaintiff the sum of $947.38, instead of $422.38, and, as so modified, affirmed, without costs to either party.

Hardin, P. J., and Merwin, J., concur.


source: Caselaw Access Project

author: Martin, J.

license: Public Domain

text:
    Helen C. Beardslee et al., Resp’ts, v. Henry A. Dolge, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed September 30, 1892.)

    Certiorari—Keturn—Highways.
    The return to a certiorari to review the action of a highway commissioner in opening a highway stated that ‘ ‘ none of said alteration and highway passes through the buildings or barnyards of" plaintiffs. It also disclosed that evidence on this subject was given before the commissioner; that the survey showed that result and that he so held. The general term affirmed the proceedings because the commissioner so held and it would not review the facts found by him on his personal inspection and knowledge. In an action for a false return, Held, that such statement in the return was not an independent statement of fact, but a mere statement as to what the commissioner held; that if otherwise it was irrelevant and should have been disregarded, and as the court would have reached the same conclusion if the statement had not been included plaintiffs were not injured thereby and were not entitled to recover.
    Appeal from a judgment, entered in Herkimer'county on the verdict of a jury December 9, 1890, and from an order denying the defendant’s motion for a new trial, made on the minutes of the trial court.

      C. J. Palmer, for app’lt; Charles E. Snyder, for resp’ts.
   Martin, J.

—This action was to recover damages for a false return to a cerliorari, issued out of the supreme court, to review proceedings of the defendant as a commissioner of highways of the town of Manheim, N. Y., in laying out or altering a highway in that town. The alleged falsity of the return consisted in the statement contained therein, “ that none of said alteration and highway proposed passes through the buildings or barnyards of Helen 0. Beardslee and' Guy R. Beardslee, nor do they pass through any yards of the said Beardslees.”

The return of the defendant discloses that one of the questions raised before him as commissioner of highways was, whether any portion of the contemplated highway was laid out through the plaintiffs’ barnyard. Upon that question evidence was given before'the defendant, and the premises were viewed by the defendant and by the jury that was summoned to certify as to the necessity for such alteration or highway. The defendant, as such commissioner, determined that the proposed highway did not run through any such yard. This is shown both by his denial of the plaintiffs’ motion to dismiss the proceedings on that ground and by his determination to make the contemplated alteration or lay out the contemplated highway. The return shows that the defendant denied the plaintiffs’ motion to dismiss the proceedings on the express ground, “that the survey shows that the proposed alteration passes over the top of the clay bank and not through any yard or buildings.”

On the return of the writ to the general term, that court held that the hearing should be had on the writ and return. In the opinion delivered by that court it is said: “ The relators further claim that the action of the commissioner should be reversed because the proposed road runs through the barn-yard, etc., of the relators. The language of the return is an answer to such claim. It says, 1 that none of said alteration and highway passes through the buildings or barn-yard' of the relators, 1 nor do they pass through any yard of the said Beardslee.’ Again, the motion to dismiss the proceedings on that ground was denied, 1 for the reason that the survey shows that the proposed alteration passes over the top of the clay bank and not through any barn-yard or buildings.’ The hearing must be upon the writ and return (38 Hun, 43); and the court will not review facts stated in the return where they are founded upon personal inspection and individual knowledge of the locality, because'such personal inspection and knowledge cannot be recorded and reproduced. Ho appellate court can intelligently and fairly review a decision upon facts so ascertained. People ex rel. Mayor, etc., v. McCarthy, 102 N. Y., 643; 2 St. Rep., 546. The commissioners and jurors personally inspected and went over the proposed road, and it is certified, after such inspection, that it did not pass through any barn-yard or buildings. We must accept such determination as true, while there is little in the evidence of Mr. Beardslee to overthrow it.”

The opinion discloses, we think, that the general term affirmed the proceedings of the commissioner, so far as the question now under consideration was concerned, because it appeared by the return that the commissionQr and jury had decided that the proposed highway did not pass through the plaintiffs’ yard, and it would not review the facts as found, as the finding was based upon the personal inspection and individual knowledge of the commissioner and jury. That the defendant, as commissioner of highways, upon the presentation of the question to him, and after taking evidence and viewing the premises, concluded that the proposed alteration or highway did not r.un through any yard that was necessary to the use and enjoyment of the plaintiffs’ barn, is clearly shown by the defendant’s return to the writ of certiorari, independent of that portion which the plaintiffs now claim was false.

When that portion of the return claimed to he false is read in the light of the other • facts stated therein, and of the determination actually made by the defendant, can it be fairly construed as more than a statement by him that in the proceedings- before him, as commissioner,' he held that the contemplated highway did not run through any such yard ? Was it the intent and purpose of the defendant to do more than comply with the requirements of the writ, to return the proceedings had on the application to lay out the highway with all things pertaining thereto ? We are disposed to think that a fair construction of the whole return requires us to hold that the portion under consideration was intended as, and was in effect, an assertion or statement by the defendant that he, as commissioner, so held, and was not intended as, and was not, an independent statement in the return that such was the fact. If, however, this is not the proper-construction of the return, and the portion claimed to be false was an independent statement by the defendant of a fact, disconnected with the proceedings before him as commissioner, then it was irrelevant, and should have been disregarded. Stone v. Mayor, etc., of N. Y., 25 Wend., 168; People ex rel. v. Mayor, etc., of N. Y., 2 Hill, 9; People ex rel. v. Schellenger, 32 St. Rep., 354.

Again, it is quite manifest that the proceedings were affirmed, by the general term on the ground that, after an inspection of the premises by him, the commissioner held that the proposed road did not pass through the plaintiffs' barnyard, and not because of any independent assertion in the return of that fact,, disconnected with his action as commissioner. It is, therefore, quite manifest that the general term and court of appeals-must have reached the same conclusion, if the portion of the' return under consideration had not been inserted therein. If go, the plaintiffs should not have recovered in this case. Ford v. Smith, 1 Wend., 48; Millard v. Jenkins, 9 id., 298; Rector v. Clark, 12 Hun, 189; 78 N. Y., 21.

It was contended on the trial, and in discussing this question we have thus far assumed, that the statement under consideration was one originating in the return. But when we examine the return carefully, we are led to doubt the correctness of that contention, as the return seems to indicate that that statement did not originate in the return, but was contained in the defendant’s certificate of the proceedings had and findings made by him as such commissioner at the time the matter was before him. This seems to have been the view of the general term. If the statement complained of was contained in a certificate made by the commissioner at that time, then it follows that the return subsequently made by the defendant was not false, as it correctly returned the proceedings had before him as commissioner.

A careful examination of the evidence and proceedings in this case leads us to the conclusion that the plaintiffs were not entitled to recover in this action, and that the judgment should be reversed.

Judgment and order reversed, and a new trial granted, with costs to abide the event.

Merwin, J., concurs; Hardin, P. J., not voting.


author: Per Curiam.

text:
    Sidney E. Maders, Rec’r, Resp’t, v. William I. Whallon et al., Impl’d, Appl’ts.

      (Supreme Court, General Term, Third Department,

      Filed September 22, 1892.)

    Judgment — Cannot be given fob cause op action not pbesented and LITIGATED.
    Under a complaint which plainly states a cause of action to set aside a conveyance as fraudulent against creditors, a judgment cannot be rendered to foreclose a mortgage made on the sale so alleged to be fraudulent, no fraud in fact being proved or found by the court.
    Motion for reargument. For former opinion see 46 St. Bep., 217.

      Byron Pond (E. T. Brackett, of counsel), for app’lts; F. A. Rowe, for resp’t.
   Per Curiam.

—We have again examined this case and see no» reason to change our views. As suggested in our opinion pleadings are- of little use if they aré to be so construed by courts that under a complaint like the one in question, which plainly states a-cause of action to set aside a conveyance as fraudulent against creditors, a judgment can be rendered to foreclose a mortgage-made on the sale so alleged to be fraudulent, no fraud in fact-being proved or found by the court.

We think the weight of authority is against the propriety of. such a practice; As bearing on the question involved,, in, addition* to the authorities cited in our opinion, see Patterson v. Patterson, 1 Abb., N. S., 262; Degraw v. Elmore, 50 N. Y., 1; Barnes v. Quigley, 59 id., 265; Ross v. Mather, 51 id., 108; Matthews v. Cady, 61 id., 651-2; McMichael v. Kilmer, 76 id., 36.

The complaint was never amended. The only substantial issue raised in the case by the pleadings for the court to try, was as to the alleged fraud. On that issue the plaintiff was defeated and we think for that reason his complaint should have been dismissed. But, although defeated on the only issue raised by the pleadings,, plaintiff was allowed by the trial court to recover judgment for a. relief not asked for.

The impropriety of taking a judgment for a foreclosure and sale in this action is apparent. As an action to foreclose a mortgage defendant-might have desired to make another answer or to produce other evidence than he did, as to the amount due on the mortgage, its ownership or in other regards. The complaint gave defendant no notice that the action was one brought to foreclose, a mortgage and defendant was not bound to answer or produce' such evidence as he might desire to in an action for a foreclosure- and sale of mortgaged premises.

We, therefore, conclude that the motion for a reargumenfe should be denied, with costs.

Mayham, P. J., Putnam and Herrick, JJ., concur.


author: Herrick, J.

text:
    James P. Schuyler, Resp’t, v. The Fitchburg Railroad Co., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed September 22, 1892.)

    1. Negligence—Railboad—Evidence.
    In an action for negligence against a railroad, evidence as to whether the cattle guard in question was the same as those in general use on the road is inadmissible, as such evidence would not establish or tend to-establish that the cattle guard was a sufficient one.
    2. Same—Cattle guards.
    Although the mere fact that a cattle guard has become filled with ice is not evidence of the company’s negligence; yet where it has been allowed to remain filled for a long period- of time, this fact may be considered by the-jury in determining whether the company has properly guarded and protected its lines.
    Motion for a reargument or for leave to go to the court of appeals. See 46 St. Rep., 963.

      T. F. Hamilton, for app’lt; James B. Egan, for resp’t.
   Herrick, J.

-—None of the questions discussed in this case were overlooked by the court in coming to the conclusion heretofore announced. The question as to whether the defendant properly protected its road, and was or was not negligent, was a question of fact, and was properly submitted to the jury, and there was evidence to sustain their finding, and I can find no substantial error in the charge of the court. The evidence as to whether the cattle guard in question was the same as to those in general use on the road was properly excluded. Such evidence would not establish or tend to establish the fact that the cattle guard was a sufficient one. The defendant’s system may be an improper •one. Again, the evidence is that the guard in question, a ditch, across the road, was, and had been for two weeks before the accident, filled with ice. While the mere fact that such a guard is filled with ice is not, within some of the authorities, evidence of negligence on the part of the defendant, yet its being allowed to remain filled for a long period of time may, I think,- be considered by the jury in determining whether a railroad company has properly guarded and protected its lines. A cattle guard, good and sufficient when first constructed, may be so neglected as to afford no protection whatever, and the fact that it was originally proper in kind and sufficient in construction would be no defense to the railroad for allowing it to become and remain insufficient. I think there are no questions of law in the case of sufficient importance to warrant us in sending it to the court of appeals.

Motion denied, with ten dollars costs.

Mayham, P. J., and Putnam, J., concur.


author: Follett, Ch. J.

text:
    The Oceanic Steam Navigation Co., Limited, App’lt, v. Compania Transatlantica Espanola, Resp’t.

      (Court of Appeals, Second Division,

      Filed October 1, 1892.)

    1. Negligence—Liability oe pier owners.
    The same duty to exercise care for the safety of the public and all having occasion to use piers is due from those in control of public piers as from those using a public street.

      2. Same—Indemnity to landlord sued for negligence by tenant.
    One who has been held legally liable for the personal neglect of another, is entitled to indemnity from the latter, no matter whether contractual relations existed between them or not, and the right to indemnity does not depend upon the fact that the defendant owed the plaintiff a special or particular legal duty not to be negligent.
    3. Same.
    Plaintiff leased pier 44 from the city, and at the close of navigation upon the Hudson sublet it to defendant for the winter. The latter, in turn, sublet it to the “Louis Baker” for the purpose of receiving its cargo. While so loading, a sl'ding door in the pier shed fell upon C., a stevedore, and injured him. 0. brought an action in the United States court against plaintiff and recovered judgment, which plaintiff was compelled to pay, together with other moneys expended in the defense: In this action for reimbursement plaintiff was nonsuited. Held, error; that the judgment in the first action, until it was impeached as fraudulent, or as rendered by a court without jurisdiction, was proof that plaintiff in this action was legally liable to 0. for the damages occasioned by the accident, and of the amount of that liability, although the liability of the defendant in this action must be established by evidence outside the record of the first action.
    Appeal from a judgment entered on an order of- the general term of the superior court of the city of New York, denying plaintiff’s motion for a new trial, o.verruling its exceptions and. dismissing the complaint. The plaintiff was nonsuited at the circuit, and its exceptions were ordered heard at general term in the-first instance.
    The plaintiff is a British corporation, engaged in running the White Star Line of steamships, and the defendant is a Spamish corporation. The department of docks in the city of New York by an instrument in writing, for convenience called a lease,. “ granted,” for a period which included the years 1886 and 1887,. to the Oceanic Steam Navigation Co., “ All and singular the wharfage which may arise, accrue, or become due for the use and occupation, by vessels of more than five tons burthen, of all that certain wharf property situated on the North river in the city of New York and known as Nos. 44 and 45, together with the bulkheads between them.”
    The instrument contains the following provisions: “And the-said parties of the first part hereby authorize the said party of the ■ second part to enter upon the said premises, and take possession-of the same, at the tjme herein designated and for the purpose herein set forth, and to hold and enjoy the same, subject, however, to all ordinances of the mayor, aldermen and commonalty of the city of New York, now in force or which may hereafter-be adopted by the said mayor, aldermen and commonalty of the city of New York, and all laws of the state of New York, which, are now in force or which may be hereafter enacted in any way-appertaining or relating thereto. * * * And the said party-of the second part for itself, its successors and assigns, agrees to-erect on each of said piers, Nos. 44 and 45, under the supervision of the said department of docks, and in conformity with the fire-laws of the city of New York, and in accordance with plans to be filed in and approved by said department, suitable sheds for the; protection of merchandise and freight”
    It seems that pier 45 was used by, and was generally sufficient for the White Star Line, and that No. 44 was from time to time let for the use of other lines and vessels.
    Pier 44 was about 500 feet long, and extended from the shore westerly into the river. It was covered by a shed used for the protection of freight received for outgoing and discharged from incoming vessels. On the sides of the shed were several sliding double doors, each being about six feet wide and about eight feet high, so that when they were opened a vessel lying alongside could be laden or unladen from the pier.
    During the season of river navigation in 1886 pier 44 was used by the Troy Steamboat Company, but at the close of the-season for navigation on the Hudson river in December of that, year the plaintiff sublet pier 44 for $250 per week to the defendant, until such date in the spring of 1887 as navigation on the Hudson river should be resumed.
    While in possession of this pier the defendant permitted vessels owned by other persons to receive and discharge their cargoes thereat for such compensation as was agreed upon, not exceeding the rates fixed by statute. January 17, 1887, the “Louis Baker ” was permitted by the defendant to receive its cargo at this pier. John Cleary was employed by the stevedore who was engaged in loading the vessel, and while he was engaged in hoisting freight on board, a sliding door, which was about 200 feet out from the shore, fell upon him and broke his right leg. Subsequently Cleary brought an action in the United States circuit, ■court against the Oceanic Steam Navigation Company, alleging that it was the lessee of pier 44, had possession and control thereof on the 17th of January, 1887, and that the door fell upon the plaintiff Cleary “ by reason of the carelessness and negligence of the defendant in failing and omitting to have said door properly secured without any fault or carelessness on the plaintiff’s part.”
    Negligence was denied in the answer, and it was alleged that at the time of the accident the pier was in the possession of a sublessee. The Spanish corporation had notice of Cleary’s action, but did not defend it. It was defended, however, by the British corporation, but a judgment was recovered against it for $2,084.05 damages and costs. A motion for a new trial was made but was denied, and as the amount of the judgment^ was not sufficient to authorize an appeal to the supreme court of the United States, it was final and had to be paid. In conducting the defense, $784.12 was necessarily expended, and this action is brought to recover those two sums, with interest.

      Lawrence Godkin, for app’lt; James & Stearns, for resp’t.

       Reversing 34 St. Rep., 153.

   Follett, Ch. J.

—Had Cleary’s judgment been recovered in a court in this state and affirmed by a court of last resort, the right of the Oceanic Steam Navigation Company (assuming that its negligence did not contribute to the accident) to recover the sums it had been compelled to pay by the judgment would hardly be questioned. There are many reported cases of recoveries of sums which persons have been compelled by judgments to pay fer the neglects of others, and the general rule is that there may be a recovery had in such cases unless the parties were alike in the wrong which caused the damages. Rochester v. Montgomery, 72 N. Y., 67; Village of Port Jervis v. First Nat. Bank, 96 id., 550; Chicago City v. Robbins, 2 Black, 418; S. C., 4 Wall., 657; Lowell v. Boston & Lowell R. R., 23 Pick., 24.

The foregoing cases were brought by cities to recover sums which they had been compelled to pay to travelers on the streets for injuries caused by the negligent conduct of the defendants. The liability of the defendants to indemnify the municipalities is not placed, in the cases above cited, on the ground that persons causing injuries in highways owe a higher or different duty to the public or to a city than to individuals, nor upon the ground that the liability over is peculiar to neglects to use due care in public streets. The same duty to exercise care for the safety of the public and all having occasion to use piers would seem to be due from those in control of public piers as from those using a public street, for both are public ways. Radway v. Briggs, 37 N. Y., 256; Taylor v. Atlantic Mut. Ins. Co., id., 275; Matter of N. Y. C. & H. R. R. R. Co., 77 id., 257; Taylor v. Mayor, 4 E. D. Smith, 559; The Mayor v. Rice, id., 604; People v. B. & O. R. R. Co., 50 Hun, 192; 20 St. Rep., 44; S. C., 117 N. Y., 150-156; 27 St. Rep., 153; People v. Mallory, 46 How., 281-283; S. C., 2 T. & C., 76; People v. Macy, 62 How., 65; Gluck v. Ridgewood Ice Co., 31 St. Rep., 99.

In Gray v. Boston Gas Light Co., 114 Mass., 149, the defendant fastened a telegraph wire to the plaintiff’s chimney without having obtained permission. The weight of the wire pulled the chimney into the street, injuring a traveler, who began an action to recover his damages against the owner of the building. , Notice of the suit was given to the Gas Light Co., but it refused to defend. Subsequently,'Gray, the owner of the building, paid the traveler $335 for his damages, and in settlement of the action, and then sued the Gas Light Co, to recover that sum and the expenses of the litigation.

It was held, the sum paid in settlement having been found to be reasonable, that it and the expenses of the action could be recovered., The court in discussing the question said: “ When two parties acting together commit an illegal or wrongful act,, the party who is held responsible for the act cannot have in-1; demnity or contribution from the other, because both are equally? culpable or particeps cr{minis, and the damage results from their joint offense. This rule does not apply when one does the act or creates the nuisance, and the other does not join therein, but is thereby exposed to liability and suffers damage. He may recover from the party whose wrongful act has thus exposed him. In such cases the parties are not in pari delicto as to each other, though as to third persons either may be held liable.”

In Churchill v. Holt, 127 Mass., 165, a judgment had been recovered against the occupant of a building for damages sustained by a traveler who had fallen through a hatchway in a sidewalk. The owner paid the judgment and sought to recover the amount of it from Holt, alleging that his servant, in the -course of his business, opened and negligently left the hatchway uncovered and so caused the accident. On the trial the '.vidence to prove this allegation was rejected, but it was held nn review that it was competent. It was said : “ The rule that one of two joint tort feasors cannot maintain an action against the other for indemnity or contribution does not apply to a case when one does the act or creates the nuisance and the other does not join therein but is thereby exposed to liability. In such case the parties are not in pari delicto as to each other, though as to third persons either may be held liable.”

In that case, as in the one at bar, the defendant took the position that the judgment in favor of the traveler against the owner was conclusive against his right to maintain the action. This position was not sustained, and in discussing the question the court said: “ Under the pleadings in that suit the judgment may-have been rendered upon the ground that the plaintiffs were liable as occupants of the building, without any regard to the question whether they or a stranger to the suit removed the cover or negligently left it unguarded. It conclusively shows that they were guilty of negligence in law ns to the person injured, but it does not show that they were pariiceps criminis with the defendants, and is not inconsistent with their right to maintain this action.1’ This case was retried and the jury found that the parties were joint tort feasors and the plaintiff was defeated. 131 Mass., 67. The principle was again asserted in Simpson v. Mercer, 144 Mass., 413; Old Colony R. R. v. Slavens, 148 id., 363.

In City of Brooklyn v. Brooklyn City R. R. Co., 47 N. Y., 475, 487, the rule of liability was thus stated: “When the parties are not equally criminal, the principal delinquent may be held responsible to a co delinquent for damages paid by reason of the offense in which both were concerned in different degrees as perpetrators.”

This was said in an action founded upon a covenant to keep the streets upon which the accident occurred in repair, but reference was made to City of Lowell v. B. & Lowell R. R. Cor., supra, a leading case, laying down the rule that where one has been compelled by a judgment to pay the damages occasioned by another’s negligence, the amount paid may be recovered against the principal wrongdoer, though contractual relations do not exist between the parties to either action. See also Bishop’s Non-Contract Law, § 535.

When damages have been recovered by a judgment against a? master for injuries sustained by the servant’s negligence, the master not having contributed, the sum so paid by the latter may Be recovered from the servant. Smith v. Foran, 43 Conn., 244; Grand Trunk R. R. Co. v. Latham, 63 Maine, 177; Green v. The New River Co., 4 T. R., 589; Pritchard v. Hitchcock, 6 M. & G., 154; Smith’s M. & S., 134; 2 Thomp. Neg., 1061; Whart. Neg., § 246.

Sufficient cases have been cited to show that one who has been held legally liable for the personal neglect of another is entitled to indemnity from the latter, no matter whether contractual relations existed between them or not, and that the right to indemnity does not depend upon the fact that the defendant owed the plaintiff a special or particular legal duty not to be negligent. The right to indemnity stands upon the principle that every one is responsible for the consequences of his own negligence, and if another, person has been .compelled (by the judgment of a court having jurisdiction) to pay the damages which ought to have been paid by the wrongdoer, they may be recovered from him.

For the purposes of this discussion it will be assumed that had Cleary brought his action against the Oceanic Steam Navigation Co. in the courts of this state, he would have failed. This brings us to the question of the effect of the judgment of the circuit court of the United States. These companies are foreign corporations, and Cleary was a resident citizen of this state, which gave the circuit court jurisdiction of the action. U. S. Const., art. 3, § 2. The courts of this state also had jurisdiction to determine the controversy between Cleary and the Oceanic Steam Navigation Co. In other words, the circuit court of the United States and the courts of this state had concurrent jurisdiction to determine whether this corporation was liable to Cleary by reason of the accident, and the adjudication of either court would have been conclusive upon the other. The judgment of the circuit court of the United States must be given the same force and effect, by the courts of this state, as we give to the judgments of our own courts. Crescent City Live Stock Co. v. Butcher’s Union, 120 U. S., 141; 2 Black Judgt., § 938.

In the case cited, the court said: “And their (the judges of the circuit court) judgment or decree, when rendered, is binding and perfect between the parties until reversed, without regard to any adverse opinion or judgment of any other court of merely concurrent jurisdiction. Its integrity, its validity, and its effect are complete in all respects between all parties in every suit, and in every forum where it is legitimatelyjproduced as the foundation of an action, or of a defense, either by plea or in proof, as it would be in any other circumstances. While it remains in force it determines the rights of the parties between themselves, and may be carried into execution in due course of law to its full extent, furnishing a complete protection to all who act in compliance with its mandate.”.

What effect would the courts of this state give to a judgment rendered by one of them for damages arising from negligence, in an action brought to recover the amount paid pursuant to the judgment ?

The defendant in the action would not be bound by the judgment as a party, for he was not a defendant in the first action, but had he been joined as a defendant, and both had been adjudged liable, the judgment would not necessarily have determined, as between them, whether either was or was not primarily liable, because that question could not have been litigated in the first action, at least it could not have been without the consent of all the parties to it, and of the trial court, and then only through the aid of a special verdict or of a special finding. The judgment in an action first brought is proof in the second action of the liability, and the amount thereof, of the defendant in the first action to the plaintiff therein. The liability of the defendant in the second action to the defendant in the first, (the plaintiff in the second), must be established by evidence outside of the record of the first action. Such would have been the conceded effect of Cleary’s judgment had it been recovered in a court of this state.

In the case at bar, the judgment of the circuit court is not conclusive evidence of the liability of the defendant to the plaintiff, nor would it have been had both been defendants in that judgment. But until it is impeached as fraudulent, or as rendered by a court without jurisdiction, it is proof that the plaintiff in this action was legally liable to Cleary for the damages occasioned the accident, and of the amount of that liability. When we give the judgment of the circuit court that effect, we give it the same force and effect as we give to a judgment of our own courts. When the plaintiff had shown that he gave due notice of the •pendency of the first action, that he had contested it so far as he .could, and had finally paid the judgment rendered, he had shown the amount of the damages which he had sustained, aside from the expenses incurred in its defense. Whether, as between these litigants, the defendant is primarily liable for the damages occasioned by the injury to Cleary must be determined by- evidence outside of the record in the United States circuit court.

The record of the first action, when put in evidence in the second action by a plaintiff, might disclose a state of facts showing that he was solely liable for the injury, or that the defendant in the second action was not liable over to him, but such facts do not appear from the record in Cleary’s case, and the report of the reasons for the denial of the motion for a new trial shows that the circuit court did not rest its judgment on the theory that such facts were established. The court said: “There was sufficient in the evidence to warrant the jury in finding that the door or its fastenings was in a condition of disrepair for a period long enough to justify the imputation of negligence. The fact, which was quite clearly shown, that the door and fastenings were in good repair when the defendant assigned to the Spanish-American Company the right to collect wharfage and cranage at the pier, did not relieve the defendant from its duty to keep the wharf in safe condition.” 40 Fed. Rep., 908.

Whether the courts of a state have given the same force and effect to a judgment of a Federal court that they do to that of their own, is a question which may be reviewed by the supreme court of the United States. Crescent City Live Stock Co. v. Butcher's Union, supra.

The fact that'certain classes of litigants in the United States are subject to two judicial systems, the courts of which sometimes differ in their views of the rights and liabilities of persons, without having, in most cases, an ultimate arbiter to decide as between them, is at least a peculiarity arising from our dual form of government, which will become more and more apparent as time goes on and experience is acquired.

The judgment should be reversed and a new trial granted, with, costs to abide the event.

All concur.


author: Haight, J

text:
    Sylvanus Mayo, App’lt, v. Delorme Knowlton, Resp’t.

      (Court of Appeals, Second Division,

      Filed October 1, 1892.)

    1. Stocks—Rescission of purchase of—Tender.
    Plaintiff authorized defendant to purchase certain mining stock for him, which stock he afterwards exchanged for stock in another company to which the assets of the mining company had been conveyed. Thereafter claiming that defendant had delivered to him stock belonging to himself and not secured by purchase, he tendered to him mining stock of the old company borrowed from other persons for that purpose, and demanded back the purchase price. In an action brought therefor, Held, that having borrowed the stock for that purpose, he had the right to transfer it to the defendant and give him good title thereto.
    3. Same—Tender—Laches.
    Although the plaintiff purchased the stock in 1883, and did not attempt to rescind until 1886, as he claimed that he did not discover that defendant had delivered his own stock until that time, the question as to whether he had rescinded promptly was one of fact that should have been submitted to the jury.
    3. Same—Pleading—Election oe remedies.
    Plaintiff’s first cause of action was based upon a rescission of the contract by reason of the fraudulent performance thereof and for its purchase price, whilst the second cause of action was based upon an affirmance of the contract by a retention of the stock, and to recover damages for false representation as to value, etc. The court submitted the second cause, but refused to submit the first. Held, error; that the court should have required plaintiff to elect as to which he would have submitted.
    Appeal from a judgment of the general term of the court of common pleas, affirming a judgment entered upon a verdict.

      Charles N. Morgan, for app’lt; John R. Tresidder, for resp’t.

       Reversing 31 St. Rep., 558.

   Haight, J

—The complaint alleges two causes of action. The first allegation is in substance that at various times between the 1st day of June and the 1st day of September, 1882, the defendant agreed to purchase for the plaintiff as his agent 4,000 shares of the stock of the Silver King Mining Company; that in pretended fulfillment 'of such agreement, and with the intent to deceive and defraud the plaintiff, the defendant caused to be transferred to the plaintifE the stock of the company belonging to himself, and received and retained to his own use the money paid therefor; that in the month of J une,' 1886, the plaintifE first became informed of the facts, and thereupon tendered to the defendant the stock received from him, and demanded the return of the money paid. The second cause of action in substance alleges that the plaintifE purchased of the defendant the stock in question, and that in order to induce such purchase, the defendant falsely and fraudulently represented the stock to be of a value largely in excess of the sum paid per share, and that a dividend of ten per cent had been declared thereon, and demanded the damages sustained by reason of such false and fraudulent representations.

Upon the trial evidence was given in support of both causes of action. At the conclusion of the evidence the court submitted to the jury the question of fraudulent representations embraced in the second cause of action alleged in the complaint, after which the plaintifE asked to have the first cause of action alleged submitted to the j ury, and upon the refusal of the court took an exception thereto. The jury found for the defendant, and the judgment entered upon such verdict has been affirmed by the general term upon the ground that the evidence'did not establish a rescission of the contract by the plaintifE by reason of his failure to tender to the defendant the-stock received from him

The first cause of action alleged in the complaint is based upon a rescission of the contract by reason of the fraudulent performance thereof, and is to recover the purchase price of the stock, whilst the second cause of action is based upon an affirmance of the contract -by a retention of the stock and is to recover the damages sustained by the plaintiff by reason of the false representations made by the defendant in reference to its value, etc. The two claims are based upon conflicting or inconsistent theories, and the plaintiff was not entitled to recover upon both. Six of the jurors might find in his favor upon the first and against him on the latter, whilst the other six jurors might find in his favor upon the latter and against him upon the former. If.entitled to recover back the purchase price of the stock, he would not be entitled to recover for the damages sustained by reason of its being of less value than that which he paid for it. If he was entitled to recover damages for the false representations made in reference to its value, etc., he would not be entitled to recover the purchase price. So that he did not have the right to have both causes of action submitted to the jury. The court might properly have required him to elect as to which one he would have submitted, but instead of doing this, the court saw fit to submit the second and refused to submit the first, thus electing for him. This the court should not have done.

If, as is claimed, the defendant agreed to purchase for the plaintiff as his agent 4,000 shares of the stock of the Silver King Mining Company, and in the pretended fulfillment of such agreement, and with the intent to deceive and defraud the plaintiff, the defendant caused to be transferred to him the stock of the company belonging to himself, and received and retained to his own use the money paid therefor, the plaintiff upon the discovery of the fraud had the right to rescind the contract, because of its fraudulent performance, and recover back the purchase price paid. Taussig v. Hart, 58 N. Y., 425; Conkey v. Bond, 36 id., 427.

We are thus brought to the question as to whether there is evidence that the plaintiff rescinded. It appears from his testimony that in the latter part of the year 1882 the property and assets of the Silver King Mining Company were conveyed to the Silver King Mining & Tunnel Company, and by agreement the stock of the former company was convertible into the stock of the latter company; that the plaintiff had procured his stock to be so converted; that upon the discovery of the fraud practiced upon him he borrowed four thousand shares of the stock of the Silver King Mining Company, which had not as yet been so converted, and tendered the same to the defendant and demanded the repayment to him of the purchase price, with the interest that had accrued' thereon ; that the stock so borrowed by the plaintiff was borrowed for the purpose of making the tender to the defendant. f

Undoubtedly when the purchaser of personal property capable of identification and description has sold and parted with the same before the discovery of fraud practiced upon him in the purchase, he will be left to an action for damages. Having parted with the property, he can no longer rescind by tendering back that which he had received. But the stock had no ear-mark one share was the same as another, and could not be identified or distinguished therefrom. Each share represented an equal interest in the property and assets of the corporation, so that if the defendant had accepted the four thousand shares of the stock tendered to him, he would have had the same interest in the property and assets of the company as that sold by him to the plaintiff. Horton v. Morgan, 19 N. Y., 170-173.

True, a new company had been organized and the assets of the old had been transferred to the new company. The plaintiff had converted his old stock into the stock of the new company, but it is not seen how this should deprive him of his right to rescind, provided he is able to do so. He found stock of the old company which had not as yet been converted, and borrowed it for the purpose of making the tender. Having borrowed it for that purpose, he had the right to transfer it to the defendant and give him a good title thereto, thus restoring him to all the rights .and. property parted with. We fail to see any reason why this may not be done.

In the case of Champion v. Joslyn, 44 N. Y., 653-658, the trial court, in charging the jury upon the question of a tender, said : “ It must be stock to which he has a right, not stock the certificates of which he has borrowed, having no title to the stock, simply to go through the form of a tender.” To this an exception was taken, and on review the court says in reference thereto that “ if the defendants had lawfully obtained the certificates and were invested with the power to transfer them, it was of no consequence to the plaintiff whether they had borrowed them or were the unqualified owners.” See also Burrall v. The Bushwick R. R. Co., 75 N. Y., 211; Barclay v. Culver, 30 Hun, 1; Nourse v. Prime, 4 Johns. Ch., 490.

A purchaser of property, in order to rescind, must do so promptly upon the discovery of the fraud. Cobb v. Hatfield, 46 N. Y., 533.

The plaintiff purchased the stock in the summer of 1882.and he did not attempt to rescind until the year 1886, but he tells us that he did not discover that the defendant had delivered his own stock until that time. Whilst this fact might have been found against him, we think the question was one that should have been submitted to the jury.

The judgment should consequently be reversed, and a new trial ordered, with costs to abide the event

All concur.


text:
    Meredith Howland, Individually and as Trustee, Resp’t, v. Louisa H. Clendenin et al., App’lts, and Louisa M. Howland et al., Resp’ts.

      (Court of Appeals, Second Division,

      Filed October 1, 1892.)

    Will—Construction or.
    The will of testator gave the residue of his estate to his sons and daughters, their heirs, etc., subject as to the sons’ shares to certain limitations, and in regard to the daughters’ shares to the trusts therein declared, and then gave such shares to trustees to invest the same and pay over the income to the daughters during their lives, and upon their respective deaths-to pay over the principal to the issue of the one so dying, etc. Held, that no title to the shares vested in the daughters, and that upon the death of either without issue her share should be distributed among the heirs at law and next of kin of the testator.
    Appeal from a judgment of the general term of the supreme court of the first judicial department, which modified and, as modified, affirmed a judgment entered on the decision of the special term.

      Daniel G. Rollins, for app’lts; Robert W. De Forest and Eugene D. Hawkins, for resp’ts.

       Affirming 30 St. Rep., 526.

   Follett, Ch. J.

-—Gardiner G. Howland died November 9, 1851, leaving a widow, five sons, four daughters and four grandchildren, the children of his deceased daughter, Abby Woolsey Wolcott

He left a last will and testament which contains this clause: “ Twenty-first All and singular the rest, residue and remaindei of my estate and property, both real and personal whatsoever and wheresoever, I do hereby devise and bequeath unto my eight beloved children, that is to say : William Edgar Howland, Annabella Howland, Abby Woolsey Howland, Robert Shaw How-land, Maria Louisa Howland, Rebecca Brien Howland, Meredith Howland and Gardiner Green Howland, -Junior, and such other child or children as may hereafter be born to me, or wherewith my wife may be enciente at the time of my death, and to their respective heirs, executors, administrators and assigns forever, to be divided equally between them, or share and share alike, including the issue of such as may die before me, such issue taking the same share as their, his or her parent, or other ancestor, would have taken if living, subject, however, in regard to the portions of my sons to the limitation herein next stated, and also subject in regard to the portions of my daughters to the trusts hereinafter declared in regard thereto, that is to say, with regard to the portions of my sons, my will and direction are that my said sons be put into the possession and enjoyment of the one equal half part of their respective portions as soon as they shall severally attain the age of twenty-one years, and the other half as they severally reach the age of twenty-five years, which latter half my executors are hereby directed to retain in their possession and control until such latter age, but, in the meantime, to pay to my said sons, respectively; the interest, dividends, or other periodical income thereof. And with regard to the portions of my daughters, my will and direction are that my said executors and the survivors and survivor of them be, and I hereby constitute them and him the trustees and trustee of the portions of my said daughters respectively during their respective natural lives; and I hereby give and bequeath the same to my said executors and the survivors and survivor of them accordingly in trust for my said daughters respectively- and to invest the same in their or his names or name as such trustees or trustee in the manner hereinafter directed, and to pay over the interest, dividends or other periodical income thereof to my said daughters respectively, from time to time, to and for their own separate use and benefit, and upon their separate receipt, whether married or sole, during the residue of their natural lives, and upon their death, as each shall happen to die, to pay over and distribute the principal of the share or portion of the one so dying to her issue living at the time of her decease, including the issue of such as may then be deceased equally, or share and. share alike, the issue of any deceased child then living taking the same share as their, his or her parent or other ancestor would have taken if then living.” The record does not disclose whether the residue was realty or personalty, or both.

This will was duly probated and the estate settled, and the residue divided pursuant to this clause into ten equal shares, one of which was set apart for Louisa H. Olendenin and another for Joanna H. Grrinnell, both daughters of the testator, neither of whom have borne children and both of whom have passed the childbearing age. A dispute arose between said two daughters on the one side and their surviving brothers and sisters and the descendants of the brothers and sisters who have died on the other side, as to the disposition which is to be made of the shares so set apart for said two daughters after their deaths without leaving children. Louisa H. Olendenin and Joanna H. Grinnell assert that in the event that they die without leaving children that the portions set apart for them will form part of their respective-estates, and that their personal representatives will be entitled to-receive the same from the then trustees of said trust, and that they, the sisters, are entitled to dispose of their portions by will, and that in case they die intestate their administrators will be entitled to receive said capital from said trustees and dispose of it in accordance with the statutes of this state for the disposition of estates of persons dying intestate.

On the contrary, the respondents claim that iq said event the capital must be distributed among the surviving children of the-testator and the representatives of such as may then be deceased,, as if the same were property as to which the testator had died intestate, or that the capital must be divided among the issue of the testator who may then be surviving, per stirpes. The learned counsel for the appellants states in his brief that the will under-consideration was executed December 29, 1839, some years before the passage of those statutes known as the Married Woman's-Acts, but an examination of the appeal book fails to disclose the-date of the execution.of this will or of any relevant fact outside of it which throws any light upon the intent of the testator, whose purposes must be ascertained by the court from the language of the clause above quoted. While engaged in interpreting this clause, it must constantly be borne in mind that it is a residuary clause by which the testator probably intended to dispose of all of his estate not devised and bequeathed by the earlier-provisions of the will, and that in construing wills, and especially residuary clauses, .the courts lean towards an interpretation which will prevent partial intestacy. The testator provided for all of his sons in one manner, and for all his daughters in another. All of the children took their shares in severalty, the sons’ title vesting upon the death of the testator, but their possession and control was postponed until they reached the prescribed ages.

The learned counsel for the appellants states in his brief: “ No one denies, or ever has denied, that the legal title is vested in the trustees. Mrs. Clendenin and Mrs. Grinned, instead of owning equitable life estates, are, by the operation of our statutes, owners of a right to enforce the execution of the trust.” To this we agree. He says that it does not follow from this that the daughters have no interest in the ultimate disposition of their shares; that is true, nor does it follow from this that they have a legal interest in the ultimate disposition of their shares in case-they should die without issue, and we are unable to find in this statement of the legal effect of the clause any authority for an inference that the testator intended that his daughters’ life interest should be enlarged to an absolute estate upon their death without issue.

Counsel "'urges, in the face of this concession, that the earlier language of the clause by which, in form, the shares are given absolutely to the children, is controlling upon the subsequent language, and that the gifts to the daughters were absolute, subject, however, to the control of the trustees during their lives, and to the limitation over to their issue, if any survived them. The effect of such a construction would render the shares of those daughters dying without issue subject to the claims of their creditors, and to their power to sell their portions to take effect after death, or to dispose of them by will, and if not disposed of by will or contract, they would, after the payment of debts, be distributed among their next of kin. Some part of the testator’s intention is clear and beyond dispute. He intended not to vest the title to the shares of the daughters in them, but in their trustees, which he did by language clearly sufficient to limit .the effect of the earlier positive language, which, standing alone, would have passed the title to the daughters. He also intended that his daughters should have no part of the principal of their shares, but the income only, and upon the death of either leaving issue, her share to go to-such issue. What were his intentions as to the dispositions of the daughters’ portions in case they should die without issue? The provisions for the daughters, made in the first lines, are 11 subject in regard to the portions of my daughters to the trusts hereinafter declared in regard thereto.”

After prescribing the limitations upon the sons’ share, the testator continues : “And with regard to the portions of my daughters, my will and direction are that my said executors and the survivors and survivor of them be, and I hereby constitute them and him the trustees and trustee of the portions of my said daughters respectively during their respective natural lives; and I hereby give and bequeath the same to my said executors and the survivors and survivor of them accordingly.in trust for my said daughters respectively,” etc. The earlier and later provisions of the clause, read and construed together, evince the intention on the part of the testator not to give these portions to the daughters absolutely, subject to the liability of being cut down to a life estate if they should die leaving children, but an intention to give to them the use of the portions for life, and the remainder over to their children, should they leave any. The words employed are such as are usually used, and have been held sufficient to effect such a result. Brewster v. Striker, 2 N. Y., 19; Wood v. Keyes, 8 Paige, 365; Vreeland v. Van Ryper, 2 C. E. Green, 133.

If upon the execution of the will he had been asked if it was his intention to empower his daughters to charge their shares with debts, in case they should die without issue, and to dispose of the shares by will or contract, to take effect after their death, we' think, judging from the language of the clause, he would have answered in the negative. Had he been asked what would become of the shares in the contingency mentioned, he probably would have said that the possibility had not occurred to,him, and would have provided for the event.

Undoubtedly a testator, without violating any rule of law, could give an estate to trustees with directions to collect the income and pay it over to a beneficiary, and upon the death of the latter the trust estate to sink into and become a part of the estate of the beneficiary; but, so far as we know, no will, which in express terms has so disposed of property, has been brought to the attention of the courts; and the fact that such a provision is very unusual does not aid us in coming to the conclusion that such a disposition was intended by the testator. It seems to us that the case is not different from what it would have been had the testator given the residue of his property to his executors with directions to convert it into money, divide it into ten shares, pay over the shares to the sons, and set up a trust for each of the daughters upon the terms of the present trusts.

When persons claim rights under wills, as against heirs and next of kin, the burden is upon them to establish the validity of their claims. This burden, it seems to us, the appellants have not successfully sustained, and that if they die without issue, their portions must be distributed among the heirs at law and next of kin of the testator.

The learned counsel for the appellants cites in support of his contention several English cases. Whittell v. Dudin, 2 J. & W., 279; Jackson v. Noble, 2 Keen., 590; Hulme v. Hulme, 9 Sim., 644; Mayor v. Townsend, 3 Beav., 443; Campbell v. Brownrigg, 1 Phill., 301; Eaton v. Barker, 2 Coll., 124; Winckworth v. Winckworth, 8 Beav., 576; Lassence v. Tierney, 1 Mac. & G., 551; Bell v. Jackson, 1 Sim., N. S., 547; Norman v. Kynaston, 29 Beav., 96; aff’d 3 De Gex, F. & J., 29; McCulloch v. McCulloch, 3 Giff., 606; Merceron's Trusts, 4 Ch. Div., 182.

These cases are referred to chronologically. In Lassence v. Tierney, supra, decided in 1851 by the court of chancery, the rulé deducible from the earlier cases was stated by Lord Cottenham as follows: “If a testator leave a legacy absolutely as regards his estate, but restricts the mode of the legatee’s enjoyment of it to secure certain objects for the benefit of the legatee, upon failure of such objects the absolute gift prevails; but .if there be no absolute gift as between the legatee and the estate, but particular modes of enjoyment are prescribed, and those modes of enjoyment fail, the legacy forms part of the testator’s estate, as not having in such event been given away from it. In the latter case the gift is only for a particular purpose; in the former, the purpose is the benefit of the legatee as to the whole amount of the legacy, and the directions and restrictions are to be considered as applicable to a sum no longer part of the testator’s estate, but already the property of the legatee. In every case, therefore, the question must be one of construction; and, except for the purposes of such Vconstruction, very little assistance can be derived from former decisions. It is, however, obvious that the intention that the gift should be absolute as between the legatee and the estate is, as in all cases of construction, to be collected from the whole of the will, and not from there being words which, standing alone, would constitute an absolute gift.”

This case was confirmed by the house of lords in Kellett v. Kellett, L. R., 3 H. L., 160.

No light is thrown upon this subject by the subsequent cases. In Bell v. Jackson, the testator provided: “ I give to my granddaughter * * * the sum of 4,000 pounds, to be paid to her on attaining the age of twenty-one years.” Previous to that time it was to be kept at interest by the executors and the interest paid to her. By a codicil he directed that the executors pay her the interest on 2,000 pounds until she reached the age of twenty-three, and to accumulate the interest on 2,000 pounds until she reached that age, and then settle the whole sum, 4,000 pounds, upon her for life, and after death to her children.

The granddaughter attained the age of 23 but the legacy was not settled. She subsequently married and died childless. It was held, by the vice chancellor, that the original gift was an absolute one, subject to the interests of children, if she had any. Precisely the same rule was held in Norman v. Kynaston, and in McCulloch v. McCulloch; in Merceron's Trusts this question was not decided. These cases are discussed by Mr. Jarman, in his learned treatise on wills (vol. 1, 871), and it is there (after giving, with approval, the rule of Lord Cottenham above quoted) said: “ It is in the determination of this previous question, whether, namely, the gift to the primary legatee is absolute or qualified, that the real difficulty of these cases generally lies. The intention is, of course, to be collected from the whole will.” Hawk. Wills, 267; 2 Will. Ex. (6 Am. ed.), 1398; Sch. Wills, § 559.

This question and many of the cases are discussed in Redfield on Wills (vol. 2, §§ 16 and 17), who states the rule to be, that if the testator intended to vest the legatee with title in the first instance, makes a clear gift, and then adds a qualification as to the mode of enjoyment or the direction in which it shall ultimately go in case of the happening of a particular contingency, which .never happens, the original gift to the primary legatee becomes absolute. All of the authorities recognize this rule and it is not inconsistent with the conclusion we have reached in this case.

The judgment should be affirmed, with costs.

All concur.


text:
    William M. Tebo, App’lt, v. The City of Brooklyn, Resp’t.

      (Court of Appeals, Second Division,

      Filed October 1, 1892.)

    'Taxes—Gowanus bat—Lands under water.
    Lands under water in Gowanus bay, partly within the city of Brooklyn and partly within the city of New York, over which the owner, a resident ■of Brooklyn, has constructed a pier extending from the latter city is liable to taxation in the city of Brooklyn.
    Appeal from a judgment of the general term of the supreme court in the second judicial department, which reversed a judgment entered on the decision of the special term. The general term refused a new trial and ordered a final judgment dismissing complaint, with costs.

      Josiah T. Marean, for app’lt; Richard B. Greenwood, Jr., for resp’t.

       Affirming 32 St. Rep., 726.

   Follett, Ch. J.

—Twenty-third and Twenty-fourth streets, in the city of Brooklyn, are 200 feet apart, parallel with each other, and extend southeasterly from the shore of Gowanus Bay, which bay is bounded on the north and east by said city. Second avenue crosses these streets at right angles, and about 300 feet south-easterly of low water mark on the shore of that bay. First avenue is laid out through that part of the city that bounds the bay on the north, extending actually to the north shore, but it is laid out by imaginary lines over the shoal waters of the bay to and across Twenty-third and Twenty-fourth streets. The space bounded on the north by the south line of Twenty-third street, on the east by Second avenue, on the south by the north line of Twenty-fourth street, and on the west by the east line of F rst avenue, prolonged from the north shore across these streets, forms a block or lot about 700 feet long 'between the avenues, and 200 feet wide between the streets. About 300 feet of the easterly end of this lot is above low water mark, but the remainder, about 400 feet by 200 feet, is below low water mark. The land below the low water mark was at some time, the date not appearing, acquired by the plaintiff from the state'of New York, but from whom or when he acquired the land above the low water mark does not appear, nor is it material, fop it is conceded that in 1866 plaintiff owned the entire block or lot.

In 1865 plaintiff constructed a pier midway between Twenty-third and Twenty-fourth streets, thirty feet wide and extending northwesterly to the east line of First avenue, if prolonged from the north shore to Twenty-fourth street It is eighty-five feet from the north side of this pier to the north line of the plaintiff’s lot, and it is the same distance from the south side of the pier to the south boundary of this lot. This lot of land bounded by these streets and avenues, partly below and partly above low water mark, as above described, was in 1886 known on the assessment map of the Eighth ward of the city of Brooklyn as block 33. In that year the board of assessors of that city valued this block or lot at $15,000, and levied a tax thereon of $409.54, which the plaintiff refused to pay and the defendant advertised that it -would sell the block on the 6th of June, 1888, for the nonpayment of taxes. In May of that year this action was begun to restrain the sale on the ground that the portions of this block below low water mark on the north and south sides of the pier were not within the city of Brooklyn. The plaintiff concedes that the part of the block above low water mark and the pier are within the city, and subject to assessment therein. Whether lands and piers beyond the natural low water mark of the shores of the city of Brooklyn are within or without the boundaries of the city has been considered in several cases. Udall v. Brooklyn, 19 Johns., 175, was an action to recover a penalty for measuring grain for hire within the then village of Brooklyn in violation of the ordinances. It was conceded that defendant was a licensed measurer in the city of New York. A pier had been constructed from the shore of Long Island westward beyond low water mark, on the end of which the measuring was done. The defense was that the act complained of was committed beyond the limits of Kings county, which was bounded by low water mark. The court said, in deciding the case, “We are of the opinion that Kings county includes all the wharves and made land on the Long Island shore of the East river, as well as natural alluvion to the actual line of low water.” Luke v. Brooklyn, 43 Barb., 54, was an action to recover the value of a building destroyed during the draft riots of July, 1863. The property was on the end of a pier beyond low water mark. The court held that, “ The jurisdiction of the city of Brooklyn must, from necessity, follow the shore as it advances into the river or bay, whether the accretion proceeds from alluvion or artificial deposits and erections.” This case was affirmed by the court of appeals in June, 1865.

The Atlantic Dock Co. v. Brooklyn, 1 Abb. Ct. App. Dec., 24; S. C., 3 Keyes, 445: 3 Trans. App., 305, was an action to recover damages for the destruction of a pier and a dredging machine floating in a basin formed in part by the pier. The pier extended below low water mark and the machine was floating near the end' of the pier. It was held, “ It has been repeatedly adjudged that the boundary of territorial jurisdiction between the counties of New York and Kings is the actual line of low water on the Brooklyn side, whether corresponding with the original low water line on the East river shore, or varied by the permanent encroachment of docks, piers and wharves, or other artificial erections for the purposes of general commerce.”- The same rule was held in Orr v. Brooklyn, 36 N. Y., 661. Under -those decisions it cannot be doubted that the pier was within the jurisdiction of the defendant’s assessors. Since the cases cited were decided the boundaries of the city of Brooklyn have been somewhat changed, and it is asserted that they now extend below low water mark. This question we do not consider it necessary to determine upon this appeal

May 11, 1886, article 1, title 2, of chapter 13 of part 1 of the Revised Statutes was amended by adding thereto § 4, which then read as follows:

“ Section 4. When the line between two towns, wards or counties divides a farm or lot, the same shall be taxed, if occupied, in the town, ward or county where the occupant resides; if unoccupied, each part shall be assessed in the town, ward, village or county where the same shall lie.”

This section laid down a rule for the assessment of lots in cities divided by the lines between wards or counties as well as for farms divided by the boundary lines of towns. Assuming this lot was, as the plaintiff contends, partly within the city of Brooklyn, and partly within the city of New York, the case falls within the statute, and the assessment was legal and the judgment should be affirmed, with costs.

All concur.


author: Barnard, P. J.

text:
    William Nelson, Resp’t, v. Frederick W. Bleckwenn, Treasurer of Long Island City, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Taxes—Long Island City — Redemption — Improvement certificates MAY BE USED.
    An owner of lands sold for unpaid assessments thereon, made under chapter 336, Laws of 1874, and the acts amendatory thereof, providing for improvements in Long Island City, is entitled to use the improvement certificates issued under said act for the purpose of redeeming the lands sold, even if the sale was for less than the assessment and interest.
    Appeal by defendant from so much of an injunction as restrained the treasurer of the city from receiving improvement certificates in payment of any bid upon a sale for nonpayment of assessments which shall be less in amount than the total amount due upon the assessment.

      J. Ralph Burnett, for app’lt; William J. Gaynor, for resp’t.
   Barnard, P. J.

—The court of appeals has decided that the certificates of indebtedness such as are described in the complaint can be used for the purpose of redeeming land sold for unpaid assessments and taxes; that the city officer who makes the sale is bound to receive the certificate upon tender of the requisite amount. People ex rel. Oakley v. Bleckwenn, 126 N. Y., 310; 37 St. Rep., 386.

There is nothing in the law which limits the applicability of such certificate in cases where the certificate is larger than the bid. The sale is legal. They can be used to pay for the bids made and the law does not require the bid to be for the full amount of the tax and interest. The certificates are to be received “in payment of the assessment and accrued interest,” but the law, however, directs the sale to be made “ to the highest bidder.” There is no violation of the contract made with the other certificate holders. If the land had realized a surplus that would have made a fund for all others; but when there is no surplus the certificate is available to the bidder as well when the land is insufficient to pay the whole tax and interest as in case where it is sufficient.

The part of the injunction, therefore, appealed from should be reversed, with costs and disbursements.

Dykman, J., concurs; Cullen, J., not sitting.


author: Dykman, J.

text:
    Clara Fairchild, Resp’t, v. Lucy Ann McMahon, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Foreclosure—Purchase money mortgage—False statement of- consideration.
    The purchaser of property for $7,000 caused the consideration to be stated at $12,000 in the deed, and shortly after, through her agents, in selling the property, falsely exaggerated the consideration paid by her. In an action to foreclose a mortgage given as part of the purchase price of- the property so sold, Held, that such exaggeration was a good defense.
    Appeal by plaintiff from a judgment of the special term. Kings county.
    Action to foreclose a mortgage given to plaintiff by defendant upon an exchange of premises to secure a difference in the former’s favor. The defense was fraudulent representations as to the value of the property.
    The following is the opinion at special term:
    Cullen, J.—I cannot resist the conclusion that, in the exchange of properties on which the mortgage in suit proceeded, the defendant was imposed upon. A mere statement of value, though stated as fact and made fraudulently, does not give a right of action. Ellis v. Andrews, 56 N. Y., 83. But a statement of the price paid by the vendor, as well as statements of other facts affecting the value, if false and fraudulent, will give a right of action. Here, if the facts be as testified to by defendant’s husband, there was a direct, positive statement of the price paid by the vendor, and her purchase was but a few weeks prior to the sale to the defendant The price paid at so recent a purchase might well affect the defendant’s judgment as to value. But artifice was used to aid this result. In the deed to the representative of the real owner and vendor to defendant, the. consideration was stated as $12,000, though but $7,000 was the true price, and the right to dictate the consideration to be expressed in the deed was expressly reserved to the vendee in the contract of purchase. This could have been done with but one object: to mislead subsequent purchasers as to the true price. As to the question of fact, I find that in favor of the defendant. While defendant’s case rests on the testimony of her husband alone, and that is contradicted by the agent, Benner, Benner is in conflict with several other witnesses, and, as already stated, the insertion of the exaggerated consideration in the deed confirms the statement of McMahon. The vendor was liable for the fraud of her agent Krumm v. Beach, 96 N. Y., 398. I find also that the value of the property did not exceed from ,$7,000 to $8,000. and the defendant, relying upon the statement of the agent, believed it to be at least $12,000, and that hence she was damaged in a greater sum than that represented by the mortgage in suit. Judgment for defendant, with costs.

      Merrill & Rogers, (Geo. C. Holt and Payson Merrill, of counsel,) for app’lt; McMahon & Handley, (W. D. Veeder, of counsel,) for resp’t.
   Dykman, J.

—The judgment in this action should be affirmed on the opinion of the trial judge at the special term, with costs.

Barnard, P. J., concurs; Cullen, J., not sitting.


text:
    Charles L. Leonard et al., Resp’ts, v. Long Island City, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    1. Municipal corporations—Chapter 332, Laws op 1890—Construction.
    Chapter 232, of Laws of 1890, authorizes the fire commissioners of Long Island City to purchase fire engines, hose, implements and apparatus of any and all kinds for the use of the department. In an action to recover from the city the value of hose carts purchased under said law, Held, that hose carts came within the meaning of the statute.
    3. Same—Want of funds no defense.
    The fact that no fund was provided for the payment of the articles which the commissioners were authorized to purchase does not affect the seller’s right of action to recover the purchase price.
    4$. Same—Acceptance op articles purchased.
    The articles so purchased having been accepted and used bv the city, it became liable therefor upon a quantum meruit, no limitation on the power of the commissioners to purchase the same having been placed by the statute.
    4. Same—Construction.
    •It was not the intention of the legislature to include within the limit of annual expenses, which they fixed at $14,000, the cost of purchasing the engines and other apparatus.
    Appeal by defendant from an order and an interlocutory judgment entered thereon, overruling a demurrer to the complaint.

      S. B. Noble, for app’lt; Geo. L. Carlisle, for resp’ts.
   Dykman, J.

—This is an appeal from an order and an interlocutory judgment entered thereon overruling a demurrer to the complaint in this action.

The complaint is for goods sold and delivered, and alleges in substance that under and in pursuance of the authority of chap. 232 of the Laws of 1890, the board of fire commissioners of Long ‘Island city, acting in behalf of that city as its duly authorized .agent and with power to bind it, purchased and received three hose carriages and other merchandise, for which the board promised to pay $2,107.25, and that they have been accepted by and are in use by said board and the defendant.

The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action against it.

The demurrer was overruled, as we have seen, and the defendant has appealed.

The property described in the complaint was purchased by the board of fire commissioners of Long Island city under the provisions of chap. 232 of the Laws of 1890, and this action is prosecuted under that law.

By § 3 of that act the board of fire commissioners were directed to “ contract for, purchase and procure at least three steam fire engines for the use of said fire department, together with the necessary horses, hose, supplies, tools, implements and apparatus necessary and proper to be used in extinguishing fires,” and they were thereby “ authorized and empowered to purchase and provide at least three steam fire engines with the supplies, horses, tools, hose, implements and apparatus of any and all kinds for use of said department.”

The section thus clothes the board of commissioners with full and ample power to purchase the articles described in the complaint, for they all fall easily within the term implements and apparatus for use of said department.

The fact that no fund is provided for the payment of the articles, which the commissioners were authorized to purchase is not. material to the cause of action.

There is, moreover, another principle which imposes liability upon this defendant for the property furnished.

The tenth allegation of the complaint is, “ That all of said merchandise mentioned above and so purchased and received were-supplies, tools, implements and apparatus necessary and proper to. be used in extinguishing fires, and have been accepted by and are in use by said board and this defendant, as plaintiffs are informed. and verily believe.”

The facts so charged being admitted render the defendant liable upon a quantum meruit.

The statute contains no limitation of the powers of the board to make contracts for implements and apparatus for the use of the fire department. The power to make the contract for such articles existed and the city has had the benefit of the articles and is liable for their value. Kramrath v. City of Albany, 127 N. Y., 581; 40 St. Rep., 241.

It does not seem reasonable to attribute to the legislature the-design to include within the annual estimate of expenses required by § 4 of the act, and which was not to exceed $14,000 in any one year, the cost of the engines and other apparatus, because the purchase price would exceed that sum and it could not be included in the estimate each year, for it would not be incurred after the first year. We think, therefore, that section refers only to the annual estimate for the department expenses.

Our conclusion is that the order and judgment should boaffirmed, with costs.

Barnard, P. J., concurs; Cullen, J., not sitting.


text:
    In the Matter of the Judicial Settlement of the Accounts of Bridget Bolen, Adm’rx of Julia Cody, Deceased.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    1. Gifts—Inter vivas—Deposit in bank—Evidence.
    The intestate drew out money deposited in her name and deposited it in the name of herself or daughter B. The hook issued in those names came into the possession of B., and there remained until the death of intestate, when she drew out the money and claimed it as her own. Held, that no evidence of a valid gift or delivery being shown, and only evidence of an intent on the part of the intestate to make a will in favor of B., the latter was not entitled to the deposit.
    2. Same—Joint tenancy, survivor of.
    In such case the theory of survivorship of a joint tenancy is untenable.
    Appeal from a decree of the surrogate’s court of Kings county, charging the administratrix with a deposit in bank claimed by her as a gift from intestate.
    The surrogate’s opinion was as follows:
    Abbott, S.—Ho' valid gift or delivery is shown by the evidence. In re Ward, 2 Redf., 251. The theory of survivorship of a joint tenancy is also untenable. Mulcahey v. Em. Ind. Sav. Bank, 89 N. Y., 435. From the testimony of Mr. Lovigne, an intent appears on the part of Julia Cody to make a favorable testamentary disposition toward the Bolins at some subsequent time. Referee’s report confirmed.

      Phillips & Avery, for app’lt; William J. Cass, for resp’t.
   Dykman, J.

—This is an appeal from the decree of the surrogate confirming the report of a referee.

The question involved is the right to a deposit of' $1,016.50 in the Emigrant Industrial Savings Bank.

The deposit originally stood in the name of Julia Cody, the deceased intestate, and in August, 1879, the money was re-deposited in the name of Julia Cody or daughter Bridget Bolen, and in February, 1886, the money was drawn out and again re-deposited in the name of Julia Cody or daughter Bridget Bolen, and a bank book was issued by the bank in the same names, which came to the possession of the daughter, Bridget Bolen, and remained there until the death of her mother, when she drew the amount of money from the bank and claims the right to retain it.

That claim is controverted by her sister, Mary Heany, who disputed the account of the administratrix rendered to the surrogate, which failed to charge herself with that amount.

The surrogate referred the matter to a referee, who decided the question against the administratrix, and his report being confirmed by the surrogate, the administratrix appealed from the decree of confirmation.

Our conclusion is in favor of the decree and the same should be affirmed, with costs payable by the appellant personally.

Barnard, P. J., and Cullen, J., concur.