author: Learned, P. J. : LaNdoN, J.:

text:
    In the Matter of the Judicial Settlement of the Accounts of ASA BIGELOW KELLOGG, as Executor, Under the Will of BENJAMIN AKIN, Deceased.

      Sun'ogate — power of, to inquire as to the validity of a transfer from the deceased to his executor.

    Upon the final accounting of an executor it appeared that the deceased had) some time prior to his death, delivered to his daughter- a note payable to his order, made by her husband, who thereafter became his executor, intending to give the same to his son-in-law, and that the note was destroyed by the son-in-law during the lifetime of the deceased. Upon the hearing the surrogate, upon the application of a general creditor, adjudged the gift of the said note to have been fraudulent and void as to the creditors of the deceased, although valid as between the deceased and the son-in-law, and directed the executor to pay to one of such general creditors a portion of the amount of the note. *

      Held, that the evidence did not show that the gift was made with any intent on the part of the deceased to hinder or defraud his creditors, and that the same was valid.
    That the surrogate had no power to inquire into the validity of the transfer and require the executor to account for what he had received thereunder.
    (Landon, J., dissenting.)
    Appeal from a final decree, entered upon tbe accounting of Asa Bigelow Kellogg, as executor, under the will of Benjamin Akin, deceased.

      L. Laflin Kellogg, for Asa B. Kellogg, executor, appellant.

      James K Averill, for C. B. Lindsay, special guardian.

      Arthur II. Smith, for Sarah A. Kellogg, appellant.

      George W. Lyon, for Mary O. Akin, general guardian, appellant.

      Matthew Hale and Ward da Garrieron, for Alletta A. Akin, respondent.
   Learned, P. J. :

This is an appeal from the final decree on the executor’s accounting, made after a reference to a referee and upon his report.

The executor appeals, and claims that he is overcharged by the decree.

A general guardian of infant legatees appeals, and claims that the executor should be charged with certain additional items, and that he should be decreed liable to legatees as well as to creditors.

Sarah A. Kellogg, a legatee, appeals, and claims that Alletta A. Akin, to whom the executor was decreed to pay, is not a creditor.

Several items come up for review on the executor’s appeal. The largest is the $11,175 note. In December, 1875, the deceased held a note made to his order by Asa B. Kellogg, his son-in-law, and now his executor, for $11,175. This note near to, and after, that time, the deceased gave to his daughter, Sarah A. Kellogg, to give to her husband, Asa B. Kellogg. She received it and thereupon, during the lifetime of the deceased, delivered it to Asa B„ Kellogg. The deceased intended thereby to give the note to Asa B. Kellogg; and it was delivered to, and received by, Kellogg under that intent, and was destroyed by him during the life of the deceased; and hence it was not m the possession of the deceased at his death. These are the findings of the referee. He was asked to find that there was no proof that the note was delivered with any fraudulent intent by the deceased. But he refused to pass on the question of intent, and found that the effect of the transfer was to work a fraud on creditors.

'It is to be noticed that the referee found that nothing had come into the hands of the executor applicable to the payment of legacies, and that he held the executor liable in respect to this note, only so far as regarded creditors; although, when charged with this note, there appeared to be more than enough to pay the creditors. It appears, therefore, that the question decided was that the gift by Ben jamin Akin, the deceased, of the note to Asa B. Kellogg was fraudulent as to the creditors of said Akin, but valid as'to Akin himself; and that, therefore, inasmuch as Kellogg had been made the 'executor of Akin, he could be charged in his account for the benefit ■of such creditors, with the amount of the note thus given to him. It must be borne in mind that, as between Akin and Kellogg, the .gift was valid. It could not have been reclaimed by Akin, nor could Akin have recovered on the note.

An important question arises whether, on the accounting of an 'executor, the surrogate can decide that a transfer made during the lifetime of the deceased to the person who is afterwards appointed liis executor, valid as between the -parties, is void as to creditors; and can thereupon require the executor to account for what he has thus received. For the benefit of the creditors, such an act can be disaffirmed by an executor under Session Laws 1858 (chap. 314, § 1). That an executor under this statute can disaffirm such fraudulent acts in behalf of creditors, although they are not judgment creditors, is established in Southard v. Benner (72 N. Y., 424). But, in this present case, the executor does not seek to dis-affirm, under that statute, an act of the testator. On the contrary, the executor affirms the act, and a creditor of the testator by simple contract claims to set aside the act as fraudulent in respect to creditors. In no other instance, so far as we knew, can a creditor attack a transfer as fraudulent until he has recovered' a judgment and issued execution. (Geery v. Geery, 63 N. Y., 252, cases cited at 256; Southard v. Benner, ut supra; Adsit v. Butler, 87 N. Y., 585; Lichtenberg v. Herdtfelder, 5 Civil Pro. R., 426.) In like manner an action to enforce a creditor’s right as to a fraudulent conveyance, where the consideration is paid by the debtor and the title taken in another (1 R. S., m. p. 728, § 52), can only be brought after a judgment has been recovered, notwithstanding the debtor is dead and his estate insolvent. (Estes v. Wilcox, 67 N. Y., 264; Ocean N. Bank v. Olcott, 46 id., 12, at p. 22, where this general rule is laid down as applicable to all cases.)

The case of Dewey v. Moyer (72 N. Y., 70), points out the relief which a judgment-creditor may have when the assignee in bankruptcy (analogous to the executor) refuses to bring an action to set aside a fraudulent conveyance. (See, also, Genesee River N. Bank v. Mead, 25 Sup. Ct., N. Y. [18 Hun], 303.)

The provisions of 2 Revised Statutes, 84, section 13, declaring an executor to be liable for any just claim of the testator against him as for so much money, does not apply, because this claim was not one which the testator had against the executor. The testator, at the time of his death, had, according to the referee’s finding, no claim against Kellogg. ■ This is manifested, without question, by the decree, which holds this executor not liable to legatees. If he owed this money to the testator he would be liable to legatees as well as to creditors, which is the express language of the statute.

If Akin had assigned to- Kellogg personal securities, under circumstanees such that the act was fraudulent against Akin’s creditors, the surrogate could not, as we think, on Kellogg’s accounting as executor, have charged him with the amount thereof, even in favor of creditors. And the same principle must apply where the gift was made of the executor’s own note. This very question was decided in Richardson v. Root (26 Sup. Ct., N. Y. [19 Hun], 473.) The intestate, shortly before his death, gave to his wife an order, or draft, which operated as an equitable assignment to her of certain moneys. Assuming 'that this was valid between the intestate and his wife, but fraudulent as to his creditors, the court held that, on an accounting before the surrogate, the wife, one of the administrators, could not be charged with this money; that the surrogate had not jurisdiction to try the issue as to the good faith of a transfer made by the deceased to a person who subsequently became administrator of his estate, where the transfer was confessedly valid between the parties. This decision seems to us sound and applicable. ¥e are cited to none in conflict with it. Further, in the Genesee River National Bank v. Mead (92 N. Y., 637), we have an action brought by a judgment-creditor of a deceased against the defendant, individually and as executrix, to require her to account for the proceeds of a life insurance policy, alleged to have been assigned to her in fraud of creditors. It appears from the opinion that she had rendered an account as executrix, in the Surrogate’s Court. If she could have been charged with this money there, the failure to charge her would have made the matter res adjudicata. in her favor. (Hyland v. Baxter, 98 N. Y., 610.) But the Court of Appeals decided the question on the merits; thus holding that the action was properly brought, and that the accounting was not res adjudicata in this matter. The same view above set forth was taken by this court in the analogous-case of ah assignee for the benefit of creditors. (In Matter of Raymond, 34 Sup. Ct., N. Y. [27 Hun], 508.)

It is urged that section 2739 of the Code gives jurisdiction by the words, “ respecting a debt alleged to be due by the accounting party to the decedent.” The answer is that this is not a debt, in any view, due by the executor to the decedent. As already said, the decedent could not have recovered against Kellogg on this claim. The creditors do not claim through the decedent, but adversely to him.

It is urged that the executor has power to disaffirm a conveyance, fraudulent as to creditors; and that if he' neglects to do this, he fails to do his duty, and hence is liable before the surrogate. The question whether he ought to disaffirm and attack a conveyance, alleged to be fraudulent, is one which requires sound discretion, and must generally be left to the judgment of the executor. And inasmuch as creditors can act for themselves against an alleged fraudulent conveyance of the deceased, we are not prepared to say that the executor can be made liable before the surrogate, when, in his discretion, he thinks it unwise to attack the alleged fraudulent conveyance. The case of Merchant v. Merchant (2 Bradf., 432), cited by the respondent, did not arise on a transfer claimed to be fraudulent as to creditors. The question was whether there had been a gift causa mortis to the person named as executor; that is, whether the executor individually owned the property. If he did not, then the -property belonged to the testator at his death. In the present case the gift is established. The case of Martin v. Root (17 Mass., 222), is from a State with a very partial equity system. And that case holds that when a debt has been released by the decedent, or in fraud of creditors, his administrator can recover the same, not for creditors only, but also for the heirs or next of kin o the decedent. That principle is questioned in Holland v. Cruft (20 Pick., 338). And, as it is not the law of this State, the case has no application to the present question.

We may further suggest that if (as the respondent admits) this alleged liability would ordinarily be enforced by an action at law, the executor cannot be deprived of his right of trial by jury.

Again, it is urged by the executor that, if the surrogate had jurisdiction, he erred in holding that the delivery of the note was, in fact, fraudulent as to creditors. The testator, in December, 1875, held two notes,' each for $11,175; one made by his son Theodore, the other by his son-in-law Asa B. Kellogg This son died in the spring of 1876-77, leaving two children. They and the wife of the executor are the next of kin. Some time in, or after, December, 1875, and evidently before the spring of 1876, the deceased gave these two notes to his daughter Sarah to be destroyed, saying it would embarrass Theodore to pay his, and he did not think it just to give to one without the other. This act, then, was evidently intended by the deceased as a kind of advancement to his two children, by relieving one- and the husband of the other from these equal liabilities. The question is, whether that was a fraudulent act as to this respondent creditor, Alletta A. Akin, the widow of the deceased. This must depend on the state of his property at the time, and not on its subsequent condition. ' (Sexton v. Wheaton, 8 Wheat, 229.) The want of a valuable consideration is not enough to show fraud, and fraud is a question of fact. (2 R. S., m. p. 137, § 4.) There is not pointed out any evidence of actual intent to defraud, and the referee refuses to pass on the question of intent, saying that the effect of the transfer was to work a fraud on creditors. It could work no fraud if the deceased was then solvent. The referee has made no finding of the debts and property of the deceased at that time.

On examining as to the liability, we find three Crapo notes, amounting in all to $63,330.75. The respondent claims that there is another Crapo note of $2,000. But that note, it appears, was only collateral to a mortgage of that amount on Mrs. Benjamin Akin’s property. Without some proof that the principal debtor and her security were worthless, this $2,000 note should not be taken into account. If the deceased had paid it he would have been subrogated to the mortgage. In fact, Mrs. Akin paid her mortgage. Then there is the note held by Mrs. Alletta A. Akin, say $5,700. The respondent also claims that there was an indebtedness to Asa B. Kellogg of $6,900.07. But that was the balance of an account December 31, 1877, some two years after this'transfer. And that account "shows, May' 1, 1877, only $2,619.35. Thus $4,300 arose after May 1, 1877. How much, if any, existed in December, 1875, does not appear.

Excepting the mortgages on real estate, these are all the debts shown to have then ■ existed, being a little over $12,000. The deceased owned at the time a farm in Greenbush, 210 acres; Nos. 3 and 5 State street and 88 and 89 Quay street, Albany, and house and lot Eorty-sixth street, New York. The value of these it is difficult to determine. Evidently some of them have greatly depreciated ; some were subject to mortgages. The referee refuses to find that the deceased was possessed of the farm, but such refusal can be based only upon the fact that, by a deed dated May 1, 1877, and probably not delivered until some time afterwards, the deceased conveyed this farm to his daughter Sarah A. Kellogg. This subsequent conveyance did not affect the question whether the deceased was solvent in December, 1875. We see no evidence that the deed was delivered at the same time with the release of the note. The value of the farm is not proved. The Forty-sixth street property was said to be valued at $50,000, less a mortgage thereon of $20,000. The executor thinks he received $33,000 for it. His account seems to show that, in 1883, he sold it for $11,528 In the same year he sold 88 and 89 Quay street for $953, and 3 and 5 State street for $807. In January 1, 1876, the deceased had a claim against A. B. Kellogg (other than the note) of a little over $2,000. Whether that was collectible does not appear.

There was also a claim of deceased against Samuel Schuyler, which (from the briefs of counsel) seems to have been in existence at the time in question. Several years afterwards $6,500 was recovered thereon in favor of deceased.

There had also been another Schuyler claim, which had been settled in favor of deceased. The executor testified that about $16,000 came from that, which was credited to deceased.

Another matter should .be mentioned. As far as we can understand the statements, the deceased paid off a mortgage of $2,000 on the Quay street property in 1878. It would seem, therefore, that the Quay street property, in fact, proved to be of no value, or, perhaps, caused a loss of about $1,000. But even taking that into account, we think it is not shown that the deceased was insolvent in December, 1875, or even that he was in such a condition pecuniarily that it was a fraud on creditors to release or give away these notes. Insolvency is to be proved, not presumed. (Phillips v. Wooster, 36 N. Y., 412; Carr v. Breese, 81 id., 591.) This creditor was the wife of the deceased, lived with him all his life on good terms so far as appears. His property was tangible, much of it in land. It was not subject to the contingencies of the market. She could have collected her debt out of the farm or*the New York property. It is impossible for us to believe that there was any intent to defraud her, or to see that the circumstances showed an actual fraud.

But the respondents urge that even if the surrogate was in error in charging the executor with the $11,175 note, yet that be also erred in not charging biin with a certain $6,000 payment, and that, therefore, the decree should only be modified. The facts are these: The attorney for the deceased, -in the action against Schuyler, received, in New York, $6,500 on account of that action at half-past nine a. m., October 10, 1881. He learned that deceased was at the point of death. He sent, on that day, his check for $6,000 (deducting $500, his fee), to Asa B. Kellogg, at bis office in New York, Mr. Kellogg having been for many years the agent of the deceased in his business. Mr. Kellogg was in Troy. The attorney told the person in charge of the office to telegraph Mr. Kellogg * * * that the money was there. The check was on a New York bank and to the order of A. B. Kellogg. The deceased died that day. The check was paid October twelve. On the fifteenth of October there was an unsettled account between the deceased and Mr. Kellogg, on which there was a large balance owing to Mr. Kellogg. Mr. Kellogg credits this check on his account and charges himself with the balance after such credit.

By section 2545 of the Code, an appeal brings up for review each decision to which an exception is duly taken by the appellant. Akin, the respondent, neither excepted or appealed. The special guardian did not appeal. The general guardian did not except. Under that provision of the Code it seems to us that the question as to the $6,000 payment is not before us. If it were properly here, we should think the surrogate was right. The check came to Asa B. Kellogg’s possession before the death of the deceased, and might properly have been credited on the running account which Kellogg had with the deceased. The fact that the drawer of the check had the power to forbid its payment does not touch the question between Kellogg and the deceased.

Again, the appellant urges that the surrogate erred in surcharging the executor with $590 for moneys claimed to have been paid by him to the deceased. The ground of error is that the executor was not allowed to testify as to these payments. He claims that the previous examination by the contestants authorized him to testify in his own behalf. The principle is plain enough. (Merritt v. Campbell, 79 N. Y., 625.) The difficulty is in applying it. The executor has charged himself with a balance of $1,152, due from him to the decedent. This was the balance of an account running through several years, of which account the items making up the $590 were a part.

The contestants, against the executor’s objection, were allowed to ask, “How was that $1,152 made up?” He answered, “It was the balance of money that I had received after paying out indebtedness for him.” The executor urges that this inquiry, and other questions by the contestants in regard to items in the account, had so opened the matter that he should have been allowed to testify to payments in that account alleged to have been made by him to the deceased.

From the case, as it appears before us, we And it difficult to determine whether the subject was so opened by the contestants as to give the executor the right thus to testify. In the view we have above taken the question is practically immaterial.

Nor is it really material to decide the question whether Alletta A. Akin is a creditor, the negative of which is urged by a legatee. Her claim seems to have been admitted by the executor; it is his accounting which is before us.

By the decree the executor was charged with a total of, $66,548 11

Credited with a total of......................... 35)224 43

Leaving a balance applicable for payment of debts,” $31 , 328 68

Deduct amount of note.......................... 16)969 90

Showing a balance, applicable to costs, commissions and debts................................... $14,353 18

The decree should be modified accordingly. The charge of $16,969.90 should be struck out, and the executor should pay to Alletta A. Akin her pro rata. Decree to be settled by LearNed, J.

Bookes, J., concurred.

LaNdoN, J.:

Concurring in the result upon the $11,175 note upon the facts, and upon the check of $6,000, because not excepted to, I do not-assent to the opinion of the majority, that the surrogate did not have jurisdiction to charge the executor with the amount of the $11,175 note. Section 2739 of tbe Code provides that upon tbe judicial settlement of tbe account of tbe executor, “ where a contest arises between tbe accounting party and any of tbe other partios * * * respecting a debt alleged to be due by tbe accounting party to tbe decedent, * * * tbe contest must be tried and determined in the same manner as any other issue arising in tbe Surrogate’s Court.” Now tbe creditors, in order to get payment of their debts, allege that this note was due tbe decedent — not in his own right, it may be conceded, but as trustee for bis creditors. Tbe creditor can make this claim because tbe testator, to tbe extent necessary to pay bis debts, held bis property as trustee for bis creditors, and, therefore, could not give it away to their injury.

Chapter 314, Laws 1858, gives to the executor power to disaffirm in the interest of creditors such a transfer. This executor, being tbe donee of tbe gift, did no't disaffirm it. His interest was opposed to bis duty. But be ought to have disaffirmed it, and because he voluntarily failed in duty, tbe surrogate lias power to compel bis performance of it. Tbe statute authorizes the surrogate to control executors. (2 R. S., 220, § 1.) In such' case tbe general creditor can invoke this remedy. Tbe statute dispenses with judgment and execution. (Southard v. Benner, 72 N. Y., 424.) All the parties are before tbe surrogate, and, as held in Hyland v. Baxter (98 N. Y., 610), tbe surrogate has jurisdiction to determine questions, either legal or equitable, arising in proceedings, in tbe execution of powers expressly conferred and which must be decided therein. It may be tbe creditor lias another remedy, but in no other way can lie avail himself of tbe benefit of tbe act of 1858, and it is unreasonable, that be should be deprived of the benefit of that act because tbe donee is also. executor. Richardson v. Root (19 Hun, 473) was decided before that part of section 2739 of tbe Code, above quoted, became tbe law.

Decree modified by striking out charge of $16,969.94; the adjudication that executor pay Alletta A. Akin $6,291.42, an.d lier counsel $609.10, reversed; otherwise affirmed, executor to have costs of appeal against Alletta A. Akin.


source: Caselaw Access Project

author: LaNdoN, J:

license: Public Domain

text:
    CECILIA B. O’REILLY, Respondent, v. THE CITY OF KINGSTON, Appellant.

      Assessment for local improvement — when objections to the validity of an ordinance changing a grade cannot be raised — when the expense of paving may be assessed against oioners of lots, in pi-oportion to their frontage — ah assessor is not disqualified by being the father of a lot owner — when a railroad using the street need not be assessed.

    This action was "brought to restrain the sale of certain premises under an assessment for the cost of paving a street in the city of Kingston, under an ordinance requiring that to he done in conformity with a new grade adopted by the common council by another ordinance passed on the same day. The grade had been practically established as fixed by the ordinance for many years, but no record describing it existed. The greatest change made was by increasing the elevation at one point, eighteen inches from which point it gradually declined to, or nearly to the former grade. The pavement to be laid was to be sixteen inches thick. The action was sought to be sustained upon the ground that no petition for a change of grade had been presented to the common council as required by the city charter.

      Held, that as the plaintiff had failed to show that the amount of the assessment had been increased by the change of grade, or that her interests were injuriously affected by the change, the relief prayed for should be refused.
    The assessment was apportioned among the lot owners in proportion to the frontage of each lot upon the street. Some of the lots had valuable buildings upon them, others had buildings of inferior value, and many were vacant. The charter required the assessors to assess each lot deemed to be benefited “in proportion to the benefits they deem it to receive.”

      Held, that the fact that the lots were assessed in proportion to their frontage did not invalidate the assessment.
    It appeared upon the trial that one of the assessors was the father of the owner of one of the lots assessed, and that the same was then occupied by tbe assessor.

      Held, that he was not thereby disqualified from acting as an assessor, that the statute (2 R. S., 275, § 2) disqualifying persons from acting in cases in which they are interested only applied to judges of a court and not to administrative officers.
    The ordinance directing the pavement excepted that portion of the road-way “ occupied by the tracks of ” a railroad company, which were laid for a length of 7,000 feet through the portion of the street to be paved. The railroad company, at the request of the city, agreed to and did adapt its tracks to the new grade and paved between them, and it also agreed to pave to the extremity of its ties, which extended four and one-half inches beyond the track on each side. After it had commenced to pave to the extremity of its ties it was stopped by the city engineer, because it was thought that a better result could be produced by having the work done by the city. The cost of paving to the extremities of the ties was $875. The entire cost of the paving was $27,160.64, of which twenty-five per cent was to he paid hy the city and seventy-five per cent was to be assessed upon the owners benefited.

      Held, that the fact that no portion of the expense of the .work was imposed upon the railroad company did not invalidate the assessment.
    Appeal by the defendant from a judgment, entered at tbe Ulster Circuit upon tbe trial of this action before the court without a jury.

      William lounsbery, for tbe appellant.

      M. Schoonmalcer, for the respondent.
   LaNdoN, J:

This is an appeal from a judgment adjudging an assessment imposed by the city of Kingston upon two lots of the plaintiff, for the paving of Union avenue in that city, to be void and enjoining the sale of tbe premises for the collection thereof.

Our examination of the case leads to the conclusion that the judgment ought to be reversed and we proceed to state the reasons:

First. The trial court held that the ordinance of the common council, under which tbe paving of Union avenue was done, was unauthorized and void. This conclusion is reached, because to do the work according to this ordinance involved a change of grade of Union avenue for a portion of the avenue paved. This change of grade was directed by another ordinance adopted by the common council May 29, 1879, the same date as the ordinance authorizing the paving.

The charter of the city (chap. 150, Laws 1872, amended by chap. 429, Laws 1875, § 98), provides that “when the grade of a street has been established and the street graded accordingly, the grade shall not be changed and the street graded according to the changed grade, except upon petition to (sio) the owners of a majority of the lineal feet fronting on the part of the street to be graded, nor unless compensation be made to the owners of property injured by the regrading.” In this case no such petition was presented.

The first mentioned ordinance directed the paving to conform to the new grade. The grade of the street had been practically established and graded accordingly, many years before, but no record describing the grade existed. The assessment was for paving, not for grading. The restriction upon the power of the common council exists as to changing an established grade, not as to paving a street. If the assessment had been for the grading, the expense would have been clearly unauthorized because incurred without power.

If it had been shown that the expense was, in material part, for the grading upon an unauthorized altered grade, the unlawful would have dragged down the lawful with it, and the whole assessment would have been unauthorized. But the evidence on the part of the defendant tended strongly to show that the change of grade was so slight and was of such a character, that the grading did not form any part of the expense.

The court was requested to find that the change of the grade of the new pavement did not increase the cost of the work, also, that the amount of the assessment upon plaintiff’s lot was not increased by any change made in the grade. The request was refused in these words: a Declined, and as I think immaterial.” We think the evidence entitled the defendant. to both findings and that they were material. The power resided in the common council to pave the street, and as no record of the old established grade existed, and as the surface of the street had become somewhat irregular, it was manifestly proper that the grade should be defined and established, in order that the proper contract could be made for doing the work, and in order also that the work should be properly done. The work to be done was the laying of a pavement sixteen inches thick. It was manifest that sixteen inches of earth would need to be excavated and deposited somewhere, if the old grade was strictly adhered to. The old grade was so nearly level in the part in whi eh the change was made, that the water did not run from it readily. The greatest change made was by increasing the elevation at one point eighteen inches above the former level, and from that paint gradually declining to, or nearly to, the former grade. This change obviously made the excavation less, and hence may have made the cost of the work less. The plaintiff does not complain that this change of grade injuriously affected her. The case seems to ■ be within the principle upon which Moore v. The City of Albany (98 N. Y., 396), was decided. There the city had the power to grade the street, but in doing so it excavated earth from private property along the street where the adjoining land was higher than the grade, so as to conform to the natural slope, and deposited earth forming the slope of its embankments where the adjoining property was lower than the grade. The Constitution forbids the taking of private property for public use without compensation, and the charge was that such compensation had not been made nor the title acquired, and hence it was urged the city had, without authority, spent its money in part upon private property which it did not own. The court held that the city had the right to grade the street, but as against the owners of the land it hád nó ¡lower to take any of their earth or deposit any upon their lands, but the parties injured must apply for redress if they wanted any. The plaintiff was not one of such parties.

Here the city had title to the street, and the expenditure was on its property. The prohibition against the change of grade was for the protection of the owners of lots fronting upon the changed portion. It was also intended (hereby to prevent fickle changes, with an assessment for expenses.

• Now, if in addition to its' statutory power to pave the street, and its indisputable title to (he street, it has the right to keep and maintain the improvement upon the new grade, then within the case last cited the plaintiff, in the absence of any allegation of injury, personal to herself, cannot dispute the legality of the assessment.

' The test then is, can the city hold what it has done, as it has done it ? Any action to restore the street to its former grade, would without doubt fail, upon the ground that the wrong or injury dono was simply technical and not substantial; or if there is any one other than the plaintiff who has been injured, tbe injury is of such a character that full com pensation can be made in damages.-

Second. The assessment was apportioned among the lot owners in proportion to the frontage of each lot upon the street. Some of the lots have valuable buildings upon them, others inferior buildings and many are still vacant. The charter requires the assessors to assess each lot deemed to be benefited “in proportion to the benefits they deem it to receive.” (Sec. 98.) Because the assessment was in proportion to - the frontage it is insisted that it is not in proportion to benefit, and - therefore wrong in law. This does not follow. The assessment is not directed to be made in proportion to the value of the lots including improvements, but in proportion to the benefits the assessors deem the lot to receive. This improvement was 8,010 feet in length. The lots benefited extended to a greater length. To state a possible case by way of illustration : One lot of 100 feet frontage with valuable improvements may be worth as much as ten vacant lots each of equal frontage. An improved lnt may be assessed ten times as much as a vacant lot, and yet within a year the vacant lots may in like manner be improved and then it would be plain that the lots had not been assessed in proportion to benefits. It is a matter resting, by the terms of the charter, iii the judgment and discretion of the assessors. (Matter of Eager, 46 N. Y., 100; Matter of Cruger, 84 id., 619.) Judge Cooley, in Constitutional Limitations, 507, says: “It has been held competent to make the street a taxing district and assess the expense of the improvement upon the lots in proportion to the frontage. Here is an apportionment by a rule which approximates to what is just, but which like any other rule which can be applied is only an approximation to absolute equality.” He cites many cases from different States in support of the proposition. It is obvious that there are cases in which an assessment in proportion to frontage would be as close an approximation to equality as it would be practicable to obtain ; and that in other cases it would result in gross inequality. The plaintiff cites cases in which this inequality is obvious. (People ex rel. Parker v. Jefferson County Ct., 55 N. Y., 604; Clark v. Village of Dunkirk, 12 Hun, 182.) Regard being had to the evidence, we see no reason to doubt that the assessors in making the assessment adopted a rule which, in their judgment, and in fact, apportioned the tax in proportion to benefit.

Third. It appeared upon the trial, though the objection was not taken in the complaint, that one of the assessors was the father of the owner of one of the lots assessed, and that the assessor was the occupant of the lot. If the objection is jurisdictional it may be taken now. The objection rests upon the common-law principle that no person should act as a judge in a matter in which he is interested. If the assessor were a judge eo nomine, the statute would disqualify him upon the ground of consanguinity and interest. (Code, § 44; 2 R. S., 275, § 2.) But the statute only applies to a judge of a court. (People v. Wheeler, 21 N. Y., 82; Foot v. Stiles, 57 id., 399.) In the case first cited the commissioner of highways was brother of the applicant for the discontinuance of the highway. Dbnio, J., said: “A rule which should preclude the officer from acting in all cases, where a relative within the prohibited degree had an individual interest, would, I presume, be found quite inconvenient. Take the case of assessors, for instance; under the rule contended for, no assessor could take part in the valuation of the property of any of his relatives within the ninth degree of consanguinity. * * * To enlarge the rule still further so” as to embrace administrative officers requires, in my opinion, an act of the legislature.”

In Foot v. Stiles it was held that a commissioner of highways is not disqualified from acting in the laying out of a highway by the fact that he is owner of the lands through which it is projected. In both cases, while stress is laid upon the fact that there is a distinction between the acts of an administrative officer requiring the .exercise of judicial qualities, and the acts of a judge in dispensing justice, the controlling consideration is that the extension of the rule to the acts of the former officer would create great confusion .and inconvenience from the liability to unsettle rights supposed to be vested. While the analogy between the cases may not be .altogether denied, public policy apparently finds the safer rule, in .cases not strictly judicial, in repose.

Fourth. The assessment is further objected to because none was laid upon the Kingston and Rondout Railroad Company. The tracks .of this railroad lie 7,000 feet in length in the improved street. The ordinance directing the paving excepted that portion of the roadway “ occupied by the tracks ” of the railroad company. The railroad company adapted its tracks to the improved grade and paved between its tracks. This was done at the request of tire city authorities. The railroad company also agreed to pave to the extremity of its ties. Its ties extend four and one-half inches beyond the track on each side. The company began to pave to the extr'emity of its ties, but the city engineer testified that it was not good, would not work,” and the city did the work up to the outside •of the rails in order that a better result might be secured. There ■does not appear to have been any collusion nor any other motive ■ than to obtain the best result. The cost of this work between the ■outside of the rails and the extremity of the ties was $875. The entire cost of the entire work to the city was $27,160.61, of which twenty-five per cent was assessed upon the city at large and seventy-five per cent upon the lot owners benefited.

It is rather a strained construction to hold that because under the circumstances the city paved over the ends and between the ties to the outside of the rails, that it paved a portion of the roadway occupied by the tracks of the railroad company, and thus exceeded its authority. Clearly what it might originally authorize it could subsequently ratify, and its acceptance of the work and confirmation of the assessment may be regarded as such ratification.

That the horse railroad company’s property was benefited by the improvement of the street is not found as a fact. It is possible that it may have been injured by a consequent loss of patronage. It was a question to be decided by the assessors. But the company held its franchise subject to the condition that it should keep the track of its road in good repair, free from obstructions, and that it should do and perform all things in reference to the street which may be lawfully required of it by the directors of the village, to whose rights and powers the city succeeded. It does not appear and is not found that the railway company omitted its duties in any of these particular's, except in respect to its omission to make the pavement to the end of its ties. That omission, as before stated, the city has ratified.

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

Learned, P. J., and Bocees, L, concurred.

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


author: Landon, J.:

text:
    DANIEL H. VIALL and MARY E. VIALL, Plaintiffs, v. JOSEPHUS P. LEAVENS and Others, Defendants.

      Evidence — when inadmissible as involving a personal transaction'or communication with a deceased person — Code of Civil Procedure, see. 829. '
    In an action of partition tbe widow of tbe ancestor was called to testify as to a deed, which was claimed by some of the parties to have been delivered by the deceased at a time prior to his marriage with the witness, while the fact of such' delivery was denied by other parties to the action. After a part of the testimony of the witness had been stricken out, as relating to personal communications and transactions with the deceased, she testified in behalf of the persons disputing the delivery of the deed, that she had the custody of the deed before and after its acknowledgment and with the exception of other short intervals down to the time of the trial.

      Held, that this testimony was properly stricken out, as it was an indirect method of testifying concerning her personal transaction and communication with the deceased, in which he delivered to her the deed and told her to keep it, and its materiality was to the end that that transaction and communication might be inferred.
    Appeal from an order of the Supreme Court, denying a motion for a new trial of a special issue of fact between Ellen M. Banker and others, tried before a referee, appointed by the court, by consent of the parties in an action for partition.

      Seymour Van Santvoord, for infant defendants, and appellants Nancy and Marion Banker.

      P. A. Parmenter, for Ellen M. Banker, defendant, appellant.

      Jas. Lansing, for Ezra B. Banker, defendant and respondent.
   Landon, J.:

This is an action of partition. There is no dispute about the rights of the plaintiff, but the dispute is with respect to an undivided one-fourth which John Banker, now deceased, at one time owned. Ezra B. Banker, a son of John Banker, claims that his father delivered to him a deed of this one-fourth in 1868. Ellen M. Banker, the widow of John, and Nancy Banker and Marion Banker, his infant grandchildren, children of his deceased son Alexander, deny the delivery of this deed and claim that John Banker died seized of the one-fourth in dispute. The referee to whom this issue was referred to hear and determine, reported in favor of Ezra B. Banker’s title. The widow and grandchildren appeal. There is no doubt that John Banker, in 1868, did execute, acknowledge and deliver to Ezra B. Banker, a deed of the one-fourth part of the premises. There is no doubt that it was done in pursuance of John 'Banker’s intention to make what he conceived to be an equitable division of his estate among his children. But Ezra B. Banker held the deed only about half an hour, and as he thought it ought to embrace certain personal property also, he took it to the draftsman for his advice and left it with him. The draftsman appears to have returned it to John Banker, who thereafter kept it, and it never came to the hands of Ezra B. Banker again. A n examination of the testimony satisfies us that the finding of the referee in favor of Ezra B. Banker’s title, is supported by the evidence and is in accord with the justice of the case. There was a complete and final delivery of the deed to Ezra B. Banker. The referee’s opinion upon the facts is satisfactory.

Exceptions were taken by the appellants to the rulings of the referee in striking out certain testimony of Ellen M. Banker upon the ground that it related to personal transactions between herself and John Banker. At the time the deed was delivered to Ezra she was not the wife of John, and therefore if the deed to Ezra should be sustained, she had no'dower interest in the premises.

A part of the testimony wdiich was stricken out, on its face showed that it related to personal communications and transactions between the witness and the deceased in his lifetime. After this was stricken out the witnéss was again examined, and testified under objection to the effect that she had the custody o.f the deed before its acknowledgment and after its acknowledgment, and with the exception of three short intervals, down to the trial.

The object of this testimony was to support the conclusion that her custody of the deed was J ohn Banker’s custody, and that she received it from him and held it for him. That she had and held the deed was an indirect method of testifying concerning her personal transaction and communication with the deceased, in which he delivered to her the deed and told her to keep it; and its materiality was to the end that that transaction and communication might be inferred. She therefore testified “ concerning ” both transaction and communication, though she did not directly say she had either. The fact she spoke of was in no just sense independent of and extrinsic to the personal transaction and communication, but derived its chief significance from its dependence upon and intrinsic connection with both. The testimony given by Ezra B. Banker did not touch upon any of the communications and transactions of John Banker with this witness, but these transactions and communications are thus sought to be affirmatively introduced into the case to qualify the delivery of the deed from John Banker to Ezra, and to show that it was not intended to be final, but only as a part of an unfinished purpose or negotiation. That the witness had and held the deed, as she testified, was consistent with its delivery to Ezra, but if she had and held it under instructions from John Banker, those instructions, in connection with other circumstances, would tend to show that the ' delivery of the deed to Ezra was not a complete delivery. The inferred transaction and communication are, therefore, not simply incidental inferences deducible from an extrinsic circumstance substantial in itself, but are the substantial parts of testimony otherwise unimportant, and, hence, inadmissible under the most liberal cases. (Lewis v. Merritt, 98 N. Y., 206; Pinney v. Orth, 88 id., 447; Wadsworth v. Heermans, 85 id., 639.)

The order of the Special Term denying a new trial should be affirmed, with costs to Ezra B. Banker against Ellen M. Banker, and with costs to the infants out of the fund.

Learned, P. J., and Bookes, J., concurred.

Order affirmed, with costs to Ezra B. Banker against Ellen M. Banker, and with costs out of the fund to infants.


text:
    JOHN GLACKEN, Respondent, v. JAMES BROWN, Appellant.

      Mistake in the description of land, intended to he conveyed — when the equitable rights of a party may he asserted in an action of ejectment — when it is not necessa/ry to first have the deed reformed.

    The defendant signed and delivered to a railroad company a written agreement by which he agreed to buy two lots, lying side by side, for the sum of $1,725. The company accepted the instrument and intended to carry out the agreement, but did not sign it. Thereafter the defendant orally agreed with the plaintiff to sell to him the westerly one of the two lots for the sum of $800, the plaintiff to pay that sum to the company and receive his deed from it. Thereafter the company, at the request of the defendant, delivered a deed of the westerly lot to the plaintiff on the receipt of $800, and one to the defendant of the easterly lot on receipt of $925. The parties entered into possession of the lots and built a fence upon the line as fixed by their oral agreement. Subsequently it appeared that by an error in the deeds executed by the company, the division line had been so located as to convey more land to the plaintifE and less land to the defendant than was intended. The defendant did not notice the mistake when he received his deed, and the plaintiff either did not notice it, or else was silent with respect to it.
    In this action of ejectment, brought to recover the possession of this strip of land from the defendant, the court directed the jury to find a verdict for the plain tiff, holding that even if the facts were as stated they constituted no defense.

      Held, that this was error.
    That although the legal title to the strip was vested in the plaintiff, yet the defendant was equitably entitled to be relieved from the effect of the mistake, and to be placed in the same position as it was intended that he should occupy-under the oral agreement made with the plaintiff
    That it was not necessary to reform the deeds in order to do justice between the parties.
    That the same state of facts which would entitle the defendant to a reformation of the deed would establish his equitable right to the possession of the land, and would as effectually defeat an action of ejectment as would the legal title.
    That the case should be determined upon much the same principles as would govern if the defendant had brought his action against the railroad company and the plaintiff to have the deeds reformed, so as to give to the purpose of the parties that effect, which, whether resting in parol or otherwise, they intended to accomplish by the deeds.
    Appeal from a judgment in favor of tbe plaintiff, entered on a verdict directed at the Montgomery Circuit, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

      W. B. Dunlwp and N. G. Moak, for the appellant.

      R, J. Sanson and J. E. Dewey, for the respondent.
   Landon, J.:

The defendant negotiated with the New York, West Shore and Buffalo Railway Company for the purchase by him from the company of two lots lying side by side in the village of Port Jackson. He entered into a written contract with the company by the terms of which “he hereby agrees to buy and does buy” the same and agrees “ to pay therefor $1,725, when a deed of said premises is duly executed and delivered to him ” by the company, the deed to be delivered in thirty days from date, namely, May 2, 1882.

The defendant signed and delivered this agreement to the railroad company. • The company accepted the agreement and intended to carry it out on its part, but did not sign it. The evidence tended to show that the defendant then orally agreed with the plaintiff to sell to him the westerly one of these two lots for the sum of $800, the deed thereof to be given him by the railroad company, and the plaintiff to pay to the company the $800. The defendant requested the company to execute such deed to the plaintiff. The railroad company thereupon executed and delivered to the defendant a deed of the easterly portion of the whole lot, and received from him $925, and also executed and delivered to the plaintiff a deed of the westerly portion thereof and received from him the balance of the purchase money, $800.

The defendant gave evidence upon the trial tending to show that by mistake the railroad company so located the division line between the two lots in the deeds to the respective parties, as to make the deed to the plaintiff embrace more land than the plaintiff and defendant had agreed should be conveyed to the plaintiff, and by the like mistake and as a consequence of it, less land was conveyed to the defendant than he had directed the company to convey to him. The evidence also tended to show that the defendant did not notice this mistake at the time he received his deed, and also tends to show that the plaintiff eicher did not notice it or was silent with, respect to it.

The parties entered into possession of their respective lots and located and constructed a division fence between the same upon the line as originally intended between them, instead of upon the line mentioned in their respective deeds, and thus the- defendant entered into possession of a narrow strip of which the plaintiff had the paper title from the railroad company. Plaintiff subsequently demanded possession of this strip, which, being refused, he brought this action in ejectment to recover possession thereof. The defendant answered setting forth the alleged mistake and claiming, as against the plaintiff the equitable title to the strip in question.

The trial court directed the jury to render a ATerdict for the plaintiff for the strip in dispute, and refused to submit to the jury any questions of fact arising upon the evidence, holding that if the facts were as defendant claimed, they would constitute no defense. The learned trial court assumed that because the contract of the defendant with the railroad company was unilateral, that is, that the defendant agreed to buy and the railroad company did not agree to sell; therefore, the defendant did not acquire any interest in the whole parcel before the deed was given, and had no equitable title to any of it, and, therefore, when the railroad company gave the deed to the plaintiff, if it did convey too much, the excess conveyed was not the defendant’s, and hence no actual interest of his was affected. This view would perhaps be conclusive if the court had power to deal only with the legal rights of the parties. But the real question here was not whether the defendant had, by a mistake of fact, lost legal title to the strip of land of which he was already the equitable .owner, but, whether in attempting to execute contracts which should give effect to the mutual intention of the parties a mistake of fact had occurred, which so far defeated that intention as to result in vesting title to the strip of land in the plaintiff, which, but for the mistake, would have been vested in the defendant.

Assuming the facts to be as the testimony tended to establish them, the defendant had made two subsisting executory agreements, the first with the railroad company respecting an entire parcel of land, the second with the plaintiff, dependent upon the first, respecting a definite portion of the same entire parcel. These agreements were not enforceable by the defendant against either party, but all the parties were willing they should be executed, and they undertook respectively to do the acts necessary to their execution in fulfillment of their respective promises.

By the inadvertence of the railroad company, aided possibly by the negligence of the defendant, these contracts were so executed as to frustrate a substantial part of the intention of the parties and to pass title to the plaintiff of a strip of land which ought to have passed to the defendant.

Now, the plaintiff, upon the case stated, has the legal title to this strip, but he ought not to have it; he ought in good conscience to surrender the title to the defendant. The railroad company has no interest in the question; the case is strictly between the plaintiff and defendant.

It is no objection to the relief asked by the defendant that the agreements which the parties attempted to execute, they could not have been compelled to execute. (De Peyster v. Hasbrouck, 11 N. Y., 582; Rider v. Powell, 28 id., 310; Wiswall v. Hall, 3 Paige, 313; Crippen v. Baumes, 15 Hun, 141.) The defendant simply asks that the court relieve him from the prejudice to his title which a mistake of the parties has caused. This relief con-sits in placing the plaintiff and defendant in the same position with respect to each other that they meant to secure by the execution of their agreement.

It is not. necessary to reform the deeds in order to do justice between the parties. Such reformation would require an action in which the railroad company should also be a party. Judgment in such action would no doubt furnish evidence decisive of this action, but the trial of this action would need meantime to be stayed. Such judgment, if favorable to this defendant, would give more formal, but not more efficient, expression to the defendant’s title to the land in question than would be given in this action, if it should be adjudged that the plaintiff is not entitled to recover. Equity avoids circuity of action, and when justice requires it; regards as done what ought to have been done. The same state of facts which would entitle the defendant to a reformation of the deeds would establish his equitable right to the possession of the land, andas effectually defeat an action of ejectment as would the legal title. (Hoppough v. Struble, 60 N. Y., 430; Crary v. Goodman, 12 id., 266; Code of Civil Pro., § 507.)

The case should be determined upon much the same principles as would govern, if the defendant had brought his action against the railroad company, and the plaintiff, to have the deeds reformed, so as to give that effect to the intention of the parties, which, resting in parol or otherwise, they intended to consummate by the deeds. While the action is legal and the defense equitable, the method of trial is as if the action were wholly legal. (Wisner v. Ocumpaugh,, 71 N. Y., 113.) We conclude, therefore, that the defendant was entitled to have submitted to the jury the questions of fact, arising upon the testimony in his behalf, substantially as he requested.

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

Learned, P. J., concurred; Bookiss, J., not acting.

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


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. EDWARD M. COLE, Appellant, v. THE BOARD OF SUPERVISORS OF GREENE COUNTY, Respondent.

      Publication of terms of court— the board of supervisors will not be compelled to audit a bill for such publication, made under an order of the court.

    Tlie relator, pursuant to an order of the Special Term of the Supreme Uourfc, published in his newspaper the official notices of the appointment of the several terms of the Supreme Court and Courts of Oyer and Terminer and of the General Terms of the Third Judicial District. A bill therefor, duly verified, having been presented by him to the board of supervisors for audit, and by it disallowed, the relator moved for a peremptory mandamus to compel the allowance of his bill.

      Held, that the motion was properly denied. (People ex rel. Cole v. Hitt, 36 Hun, 619, followed.)
    The court recognizes the fact that there is an inherent power of the court, when in session, to incur such expenses as may judicially be determined to be necessary, in cases of exigency, to maintain authority, punish offenders and prevent the miscarriage of justice, and does not intend by refusing the relator’s application, to trench upon the just exercise of this power, but prefers to be understood as excluding from its scope whatever does not strictly fall within it.
    Appeal from an order of the Greene County Special Term, denying a motion for a peremptory mandamus.

    The relator, pursuant to an order of the Special Term, published in his newspaper the official notices of the appointments of the several terms of the Supreme Court and Courts of Oyer and Terminer and of the General Terms of the Third Judicial District. He presented his bill duly verified to the board of supervisors of Greene county for audit, and that body refused to allow him anything therefor.

      Halloolc, Jennings db Chase, for the relator.

      Sidney Crowell, for the respondent.
   Landon, J.:

The case of The People ex rel. Cole v. Hill (36 Hun, 619) is decisive of this case against the relator. We there held that what publication should be given to these notices was a matter of legislative not of judicial cognizance. The legislature has made some provision for the publication. (Code Civil Pro., §§ 225, 226, 232, 233.) Perhaps more should be provided. If so, the proposition seems too plain to need discmsion, that the judicial department has not been vested with the power to prescribe the law for such publication and to direct the execution of that law.

We recognize the fact that there is an inherent power of the court, when In session, to incur such expense as may judicially be determined to be necessary in cases of exigency, to maintain authority, punish offenders, and prevent the miscarriage of justice. We do not mean by refusing the relator’s‘application to trench upon the just exercise of this power; we prefer to be understood as excluding from its scope whatever does not strictly fall within it. It is essential that the power be preserved, and it is desirable that it shall be exposed as little as possible to abuse. It is urged that the precedents for this order are numerous. This may be so, and perhaps is so far so, as to suggest the idea that such orders may become liable to extend into a sort of patronage. Hence the greater reason for the re-examination of the power upon which they are supposed to rest.

The order should be affirmed, with costs.

Learned, P. J., and Bookes, J., concurred.

Order affirmed, with costs. '


author: Landon, J.: Pegkham, J.

text:
    MINOR H. GREENE, Apppellant, v. THE UNITED STATES DEALERS’ PROTECTIVE ASSOCIATION AND MERCANTILE AGENCY, Respondent. NEWTON A. CALKINS, Appellant, v. SAME, Respondent.

      Libel — action to restrain the publication of the name of the plamtijf, as a dehnguent debtor — what must be shown in order to obtain a temporary injunction.,
    In an action brought to restrain the publication of a libel, to the effect that the plaintiff refuses and neglects to pay debts justly due from him, a temporary injunction restraining the publication of the libel during the pendency of the action will not be granted unless the falsity of the charge that the plaintiff is a delinquent debtor who can, but will not pay, be proved.
    Appeal from au order of the Special Term dissolving an injunction.

      On the 25th day of August, 1885, the plaintiff commenced this action for the purpose of obtaining a perpetual injunction, to restrain the defendant corporation, created under the laws of Pennsylvania and having one of its principal offices in the city of New Yorlc, from publishing the plaintiff’s name as a delinquent debtor and circulating such publication among its members throughout the United States and Canada. On the 25th day of August, 1885, on plaintiff’s application, an injunction order was granted restraining such publication, pending the determination of this action. The defendant moved affirmatively to vacate or dissolve the injunction, which motion was granted.
    The order enjoined the publication of plaintiff’s name as a delinquent debtor, as threatened in several letters of the defendant.

      JY. A. Galkins, for the appellant.

      If. G. Moak, for the respondent.
   Landon, J.:

The following opinion was given at Special Term:

Pegkham, J.

1 think this injunction must be dissolved, even if • it be assumed that the court can grant injunctions to restrain publications of a libel (and the English courts have gone to that extent), yet where such jurisdiction is claimed the ^courts refuse to exercise it by granting an injunction unless the plaintiff prove the publication to be untrue. (Quartz Hill, etc., Mining Co. v. Beall, L. R., 20 Ch. Div., 501.)

This decision is made while recognizing the general right to issue an injunction in an action to restrain the publication of a libel. (Thorley's Cattle Food Co. v. Massam, L. R., 14 Ch. Div., 763; Thomas v. Williams, Id., 864; Hill v. Davies, L. R., 21 Ch. Div., 798.) These decisions are based generally upon the extension of the jurisdiction to issue an injunction granted by the late judicature acts. The courts in this State have not gone so far, as I think. But assuming they have, there is no proof of the falsity of the charge that plaintiff is a delinquent debtor who can, but will not, pay. The complaint does not allege the falsity. The counsel for plaintiff, in his argument and brief, admits the truth of the statement that plaintiff can, but does not, pay. I do not intend to decide off-hand that an action at law to recover damages for the publication of such á statement may not be sustained. I express no opinion on that question. I do say that until such action has been sustained, while no denial of the truth of the allegations of" ability and omission to pay is made, an injunction ought not to issue. In any event not until trial of,the action.

Concurring in the above opinion, we add : The plaintiff’s ability to pay existing, and being conceded, he has no moral right to buy goods and refuse to pay for them. A part of the injury which he charges the intended publication will cause him, is obviously the impairment of his credit resulting from a wider knowledge among tradesmen of his transactions with the three tradesmen mentioned in the proposed publication. He invokes the aid of the court to preserve him from the injury which a knowledge of his transactions will cause. He proposes no reform in his methods, no abstinence from a repetition of his practices. He does not come into court with clean hands, and equity upon familiar principles should withhold from him its assistance either in his repetition of the practices or in shielding him from the consequences resulting from a wider knowledge of them.

The order should be affirmed, with ten dollars costs and printing disbursements. The answer is not frivolous, and the order denying judgment should be affirmed, with ten dollars costs and printing disbursements. (Same orders in Newton A. Calkins v. Same Defendant.)

Learned, P. J., and Bookes, J., concurred.

Orders affirmed, with ten dollars costs and printing disbursements in each case.


text:
    SAMUEL HAND and MATTHEW HALE, Respondents, v. WALTER S. CHURCH, Appellant.

      Evidence — when a witness may express his opinion as to the vahie of professional services rendered by an attorney — interest —when it will commence to run on unliquidated demands.

    Upon the trial of this action, brought to recover the value of professional services rendered by the plaintiffs, as attorneys-at-law, to the defendant in litigations in which he was interested, the defendant was called as a witness, and was asked what in his opinion was the fair value of the services rendered by the plaintiffs in one of the said actions. He, witness, testified that he was not a practicing lawyer ; that he had been admitted to the bar of the Common Pleas in Allegany county ; that he had aided in the trial of his own cases and in cases in which he had been the agent of others ; that during thirty years he had had upwards of 2,000 cases in which he had an interest, mainly actions of ejectment or upon covenants in leases; that for thirty years he had knowledge of the amount of charges rendered by and paid to attorneys and counsel for services, including charges made by the present plaintiffs in cases other than his own, and a pretty good general knowledge of the subject.

      Held, that it was error to refuse to allow him to testify on the ground of his incompetency to testify as an expert.
    The referee allowed interest upon the whole amount of the recovery from the time of the presentation of a bill therefor to the defendant in 1876. It appeared that at or shortly after the said bill was presented it was agreed between the parties that the defendant admitted his indebtedness for the items therein contained subject to modification and correction as to the amount of the charges. Upon the trial the defendant disputed the amount charged in three items aggregating $1,900.

      Held, that as to these items the interest should have been limited to the date of the commencement of the action.
    That upon the undisputed items interest was properly allowed from the time of the presentation of the bill.
    Appeal from a judgment in favor of tbe plaintiffs, entered in Albany county upon tbe report of a referee.
    Tbe action was brought to recover on an account for services as attorneys and counselors-at-law, rendered by tbe plaintiffs to tbe defendant. No question was made as to tbe rendition of tbe services. Tbe defendant’s contention was, that an arrangement existed between the parties which precluded tbe plaintiffs from mating certain of the charges; that certain of tbe charges were excessive ; and that the plaintiffs were not entitled to interest upon the items in dispute.

      8. W. Rosendale, for the appellant. .

      Hale db Bullcley, for the respondents.
   Landon, J.:

Among the items for which the plaintiffs sought recovery was a charge of $1,000 for services in the case of Van Leuven v. Church. The defendant, as a witness in his own behalf, after giving ®.n account of the action and of the services rendered by the plaintiffs in it, was asked, “ What, in your opinion, is the fair value of the services rendered by the plaintiffs in that action ? ” The plaintiffs objected that the witness was incompetent to give an opinion. The witness was then examined as to his competency, and he testified that he was not a practicing lawyer; that lie had been admitted to the bar of the Common Pleas in Allegany county ; that he had aided in the trial of his own cases and in cases in which he had been the agent of others; that during thirty years he had upward of two thousand cases in which he had an interest, mainly in actions of ejectment or upon covenants in leases; that for thirty years he had knowledge of the amount of charges rendered by and paid to attorneys and counsel for services, including charges made by plaintiffs in cases other than his own, and a pretty good general knowledge of the subject. The referee sustained the objection and the defendant excepted. This we think was error. The competency of the witness did not necessarily depend upon his being a lawyer, but upon the fact whether he had been so instructed by experience as to have peculiar sources of knowledge to guide him upon the subject of the value .of these professional services, fitting him to answer with more accuracy than others. (Clark v. Baird, 9 N. Y., 190; Pullman v. Corning, 14 Barb., 179; S. C., 9 N. Y., 93; Clark v. Bruce, 12 Hun, 274; Woodward v. Bugsbee, 2 id., 128.) Other persons besides professional men have knowledge of the value of professional services. (Field, J., in Head v. Hargrave, 105 U S., 49.) We do not see why those who often procure and pay for such services should not acquire by experience considerable knowledge of their value. It may not he perfect, but the courts do not insist upon the highest knowledge as the test of competency. (Hammond v. Varian, 54 N. Y., 398; Roberts v. Johnson, 58 id., 613 )

We think the referee erred in allowing interest upon the entire account rendered by the plaintiff to defendant, July 17, 1876, from that date. The subsequent transactions of the parties with reference to the bill repel the idea that it became an account stated with respect to the items defendant chose to dispute. One of the plaintiffs, September 30, 1878, referring to the bill, asked the defendant if it was not convenient to pay the bill to give some acknowledgment of it. The defendant answered that he had not taken time to examine the bill and did not know that all the charges were right. The plaintiff then said he would draw the acknowledgment in such a way as not to preclude the defendant from questioning the amount. The plaintiff then drew the following memorandum upon the copy of the bill and the defendant signed it:

“I hereby acknowledge my indebtedness to Hand & Hale for the items of within bill, subject to modification and correction as to amount of chai’ges.
“ WALTER S. CHURCH.
“ Dated September 30, 1878.”

Whatever presumption might arise from the rendering of the bill by the plaintiffs to the defendant, and the defendant’s failure to object to it within a reasonable time, was controlled by the arrangement between the parties. The defendant thereby acknowledged his indebtedness upon account of every item of that account, and in consideration thereof had conceded to him by the plaintiffs the privilege to correct and modify the amount claimed for every item which he might choose to dispute. He claimed and exercised that. privilege as to items aggregating $1,900. The amount of these items remained .unliquidated until determined by the trial. The charges were for counsel fees. The defendant could not, as in the case of articles of merchandise, have recourse to a fixed market value to ascertain the amount of his indebtedness.. In Adams v. Fort Plain Bank (36 N. Y., 255), and Mygatt v. Wilcox (45 id., 306), it was held that interest could be recovered in an action by an attorney upon his account for services. But, as pointed out in White v. Miller (78 id., 393), and in Gallup v. Perue (10 Hun, 525), the account appears to have been substantially liquidated, the liability to pay alone being litigated. In the case last cited interest upon an attorney’s account was refused. No bill, however, had been presented. Here, as in Smith v. Velie (60 N. Y., 106), there-was no agreement as to the measure of compensation of the items in dispute, and there was no. fixed market value by which the rate of compensation could be determined. In that case interest was not allowed, even from the date of the commencement of the action. In McCollum v. Seward (62 id., 316) interest was allowed upon an unliquidated account for services rendered from the commencement of the action. Also, in Mercer v. Vose (67 id., 56). In White v. Miller, these and other cases are reviewed, and it is objected that if the claim is so unliquidated and uncertain that a demand cannot set the interest running, that the commencement of an action, which is also a demand, cannot set it running. That, however, was an action sounding in damages.

It was not pointed out why a plaintiff who establishes his right to recover upon an account cannot have his recovery as of the date of the commencement of the action; interest would seem to be his due, in order to effectuate such recovery. As to three items men•ioned, we think the interest should have been limited to the date of the commencement of the action. The balance of the items in the same bill, however, does not appear to have been ever disputed, either as to the amount or the light ó f recovery. T.he amount of these items was, therefore, payable when the bill containing them was first presented. The referee properly allowed interest upon them from that date. The other objections of the defendant'do not call for special remark.

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

Bocees, J., concurred ; Learned, P. J., not acting..

Judgment reversed, new trial granted, referee discharged, costs to abide event.


author: Peckiiam, J.:

text:
    CAROLINE M. H. SEARING, Appellant, v. THE VILLAGE OF SARATOGA SPRINGS, Respondent.

      Discharge of sewage on private property — when the owner cannot claim damages if the sewer was constructed with her assent.

    This action was brought against the defendant, a village, by the plaintiff to recover damages sustained by her from sewage which entered upon her lot from an old sewer in one of the streets, through a sewer or pipe built on her own land by the defendant with her knowledge and consent, if not at her request.

      Held, that she could not maintain the action.

      It seems, that if she did not like to have the sewer remain on her land she could take it up, and thereafter, if any sewage were illegally or improperly thrown upon her land by the agents of the defendant, she could recover the damages which she might sustain therefrom.
    Appeal from a judgment in favor of the defendant, entered upon the trial of this action at the Saratoga County Special Term.

      John R. Putnam, for the appellant.

      Charles S. Lester, for the respondent.
   Peckiiam, J.:

The plaintiff claims to recover damages sustained by her from sewage which enters upon her lot from the old sewer in Walworth street, through a sewer or pipe built on her own land by defendant, with her knowledge and assent, if not at her request. The plaintiff claims the sewage comes on her land through a defect in the pipe laid cn it by defendant, and she says that even without the sewer thus laid, the sewage from the old Walworth street sewer would run on her land and damage her. But her cause of complaint now is that sewage coming down the Walworth street sewer is dumped upon her land by reason of the pipe made on it by defendant. As this was done with her assent, if not at her suggestion, the principle comes within the cases decided by this court in McCaffrey v. City of Albany (11 Hun, 613), and' by the Court of Appeals in Matter of Rhinelander (68 N. Y., 105). If the plaintiff do not like the sewer as it remains on her land, she can take it up, and thereafter, if any sewage be illegally or improperly thrown upon her land by the agents of defendant, she can then probably recover the damages which she may sustain.

The judgment should be affirmed, with costs.

Present — Learned, P. J., and Peokham, J.

Judgment affirmed, with costs.


author: Bockes, J.:

text:
    ANN CRANSTON as Administratrix of DAVID CRANSTON, Deceased, Respondent v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Negligence — a person crossing a railroad brack is bound to look only when to do so would benefit him — what instruction to the jmy as to thevr duty to agree is allowable.

    Upon the trial of this action, brought to recover damages for the negligent kill-' ing of the plaintiff’s intestate while crossing the defendant’s tracks, the defendant’s counsel excepted to so much of the charge as stated that the deceased “ was not bound to look, when looking or gazing would only show him the small amount of seventy feet of the track.” To this the court remarked: “I will say he was not bound, as matter of law, to look, unless you find that by looking he could have seen the train or heard it or known of its approach.”

      Feld, no error.
    After the jury had been out for a time they returned into court, when one of them stated that there'was no probable chance of their coming to an agreement. The court thereupon said: “I can’t take any such statement as that, gentlemen; you must get together upon a matter of this kind. No juror ought to remain entirely firm in his own conviction, one way or the other, until he has made up his mind beyond all question that he is necessarily right and the others necessarily wrong.”

      Feld, no error.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury at the Rensselaer Circuit, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

      Edgar L. Fursman, for the appellant.

      Jü. A. & F. J. Parmmter, for the respondent.
   Bockes, J.:

We do not think the case was so clearly and indubitably with the defendant on the proof that it could have been taken from the jury. There was evidence which required consideration by the jury in order to determine the real truth of the case, and from which deductions and inferences might be made favorable or unfavorable to the right of action accordingly as it should be credited and given weight, and this both as to .the question of the defendant’s negligence and that of contributory negligence on the part of the deceased. There was evidence given as to the manner in which the train was run as it approached the- crossing where the. accident occurred, and as to the giving or omission to give the usual and proper signals; also,-as to the location of the crossing and its physical surroundings, whether in any respect peculiar as was and is claimed, or otherwise; also, the way in which the deceased approached and entered upon it, whether he had the usual opportunity for observation because of obstructions to his view; also, as to his omission to make needful and proper observation, or any observation, and, generally, proof bearing upon his duty as to the exercise by him of due caution and proper action in the emergency in which he found himself placed. Evidence was given bearing on all these subjects, not absolutely conclusive of them either one way or the other, but which, in order to determine the truth of the matter, required to be collated and weighed, and from which differ-, ent inferences from different persons of average ability and experience might be legitimately drawn. In this condition of the Case it was for the jury on all the evidence (Card v. The Manhattan R. R. Co., 22 Weekly Dig., 321, and cases there cited); hence the motion for nonsuit was rightfully denied.

No error is now urged on the appeal on rulings as to the admission or rejection of evidence ; but some portions of the charge of the learned judge are criticised and challenged for error, which we will now consider. The entire charge is laid before us in the áppeal book, and it may be here observed that it seems clear, full and distinct upon the facts and the law, and in a general sense entirely right. At the close of the charge the defendant’s counsel entered some exceptions, and among them to whatever was said by the court tp the effect (as stated by the counsel) that the deceased was not bound to look wlien looking or gazing would only show him the small amount of twenty feet of the track.” Whereupon the court remarked: “ I will say he was not bound as matter of law to look, unless you find that by looking he could have seen the train or heard it, or known of its approach.” To this remark and ruling the defendant’s counsel entered exception, and now bases an allegation of error thereon. In this ruling we think there was no error. It was but saying to the jury that the deceased was not bound to do an idle, futile act in order to avoid a charge of negligence. How could he be negligent in omitting to do that which, if done, would be of no avail. The ruling seems in entire consonance with what was held in Smedis v. Brooklyn and R. B. R. R. Co. (88 N. Y., 13). Judge Tracy, in that case, says: “ While it is true that a traveler on approaching a railroad crossing is bound to look and listen for an approaching train before undertaking to cross, it is only where it appears from the evidence that he might have seen had he looked, or might have heard had he listened, that a jury is authorized to find that lie did not look and did not listen.” The learned judge was, therefore, well authorized to hold, as he did, that the deceased was not bound as matter of law, in order to avoid the charge of negligence, to look unless he could have seen the train, or heard or known of its approach, had he done so.

After the jury had been out for a time they returned into court when one of them stated that there was no probable chance of their coming to an agreement. The court thereupon said: “ I cannot take any such statement as that. Gentlemen, you must get together upon a matter of this kind. No juror ought to remain entirely firm in his own conviction one way or the other until he has made up his mind beyond all question that he is necessarily right and the others necessarily wrong.” An exception was entered to these remarks. We see nothing in them exceptionable, certainly nothing subject to just exception as matter of law. It was for the court to determine, in the exercise of a fair discretion, how long he would keep the jury out before discharging them because of disagreement. The purport of the remarks to the jury was that they ought to come to an agreement, and that a juror should not be absolutely firm in his conclusion until he found himself necessarily right; that is, right as a matter of conscience and judgment. There was nothing in what was said amounting to undue coercion, or indeed to any coercion. It was in effect but saying I cannot now accept your statement that you cannot agree, try again. They did try again and came to an agreement. The case is quite unlike Green v. Telfair (11 How., 260). There the jury was sent back under a threat of inconvenience and discomfort to themselves unless they should speedily agree upon a verdict. The case of Slater v. Mead (53 How., 57) was much like Green v. Telfair. The decision in this latter case was criticised and not followed in Erwin v. Hamilton (50 How., 32). We are of the opinion that there exists no just cause of complaint, because of what the learned judge said and did with the view of obtaining an agreement by the jury. In what he said and did there was no unjust animadversion upon the conduct of the jury, nor any threat or coercion ; none certainly of a character calculated to disturb the jury in the further fair consideration of tlie case.

In conclusion we are of the opinion that the judgment and order appealed from should be affirmed, with costs.

Present — Learned, P. J., Bocees and Landon, JJ.

Judgment and order affirmed, with costs.


author: Bocees, J.:

text:
    JOHN H. EAGAN, Receiver, etc., Respondent, v. JAMES R. STEVENS, Appellant.

      Beeorder of the city of Cohoes — he cannot accept money in lieu of bail —1880, cha/p ■ 456, sec. 80 — he is personally liable for money so received.

    The application, of one McClellan for a postponement of his trial before the defendant, the recorder of the city of Cohoes, was granted upon his giving bail for his future appearance to the amount of $200. Instead of giving bail he deposited $200 in currency with the defendant who, upon McClellan’s subsequent failure to appear, declared the same forfeited to the city of Cohoes. In supplementary proceedings instituted by a judgment-creditor of McClellani a receiver was appointed, who, after making a demand upon the defendant, for an amount sufficient to pay the judgment and costs, while the money was-still in his possession, brought this action to recover the same.

      Held, that as the recorder was authorized to take bail, but had no authority to accept money in lieu thereof, his act being colore officii and without authority of law was void, and rendered him liable for the money so received as the property of McClellan.
    Appeal from a judgment of tbe County Court of Albany county in favor of the plaintiff.

      J. E. McLean, for the appellant.

      P. D. Efiver, for the respondent.
   Bocees, J.:

This is an appeal from a judgment rendered by the Albany County Court in favor of the plaintiff.

The material facts of the case are as follows: In 1881, the defendant was recorder of the city of Cohoes, and in August of that year - one McClellan was brought before him charged with being a disorderly person. McClellan applied for a postponement of the trial. His application was granted on giving bail for his future appearance, fixed at $200. Instead of giving the requisite bail, he deposited with the defendant, the recorder, $200 in currency in lieu thereof. McClelland failed to appear at the time to which the trial was postponed, and the recorder declared the money so deposited forfeited to the city of Cohoes.

One John Hays had a judgment against McClellan and instituted proceedings thereunder, supplementary to execution, in which proceedings the defendant was examined as a third party. The plaintiff was thereupon appointed receiver of the property and effects of McClellan, and demanded of the defendant sufficient of the $200 to pay the judgment and satisfy the costs' awarded in the. supplementary proceedings, the defendant still having the money in his possession, with which demand the latter refused compliance. Judgment was given by the county court in favor of the plaintiff for seventy-three dollars and thirty-seven cents, the amount demanded, with costs. In thus awarding judgment we are of the opinion there was no error. The recorder, in accepting the deposit of money, instead of taking bail acted officially, or attempted so to act, without authority of law, hence his action was void in law, and the money remained the property of McClellan in his hands. The recorder was authorized to take bail from McClellan (Laws of 1880, chap. 456, § 30), but no authority is given him to accept money in lieu of bail. He is an officer with mited powers, and can act ' officially only in accordance with the express provisions of the statute. There is a prohibitory statute which declares that “no sheriff or other officer shall take any hond, obligation or security by color of his office in any other case or manner than such as are provided hy law, and any such bond, obligation or security taken otherwise than as herein directed shall be void.” (3 R. S. [7th ed.], p. 2374, § 59.) This provision was said in Webb v. Albertson (4 Barb., 51) to apply particularly to sheriffs and officers exercising like duties as coroners and constables. But in this case a bond taken by commissioners of highways of a town, under color of their office for the benefit of tlie town, was held void, on the ground of public policy. In Harp v. Osgood (2 Hill, 216, 218) a security taken by a constable was held valid, but on the ground that it was not under the circumstances of that case taken under color of his office. The same may be said of Mott v. Robins (1 Hill, 21, 22) and of Burrall v. Acker (23 Wend., 606). In Bank of Buffalo v. Boughton (21 id., 57), a bond executed by an officer to be relieved from arrest not authorized by law was held void. In The People v. Meighan (1 Hill, 298), a bond taken by a justice of the peace in a prosecution for bastardy containing, in addition to the provisions required by law, others imposing further obligations, was held vóid. (See, also, Barnard v. Viele, 21 Wend., 88; Webber v. Blunt, 19 id., 188; Love v. Palmer, 7 Johns., 160; Sullivan v. Alexander, 19 id., 233; and also the recent case of the Board of Charities, etc., v. Hammill, 19 W. D., 494.) These cases hold with entire unanimity that any security taken by an officer colore officii is void. If taken in right of his office, that is, by authority of law, it will be valid, otherwise if taken merely in color of his office. So in one of the cases above cited it was said, that “ taking a security by a public officer intuti officii, implies that the act is lawful either by the common law or by the authoi’ity of some statute. But taking it by color of his office necessarily implies that the act is unlawful and unauthorized, and that the legal right to take it is a mere color or pretense.” And further, to cite authorities, it was held in Cook v. Freudenthal (80 N. Y., 202), that an unauthorized security taken by a public officer from a person under arrest, as a ground of Ids discharge, is void as having been taken colore officii. This case was referred to with approval in Toles v. Adee (84 N. Y., 222), where it was said “that public policy requires that officers armed with bailable process for the arrest of defendants, should, in. taking bonds or other securities for their enlargement, be held to a strict compliance with statutory requirements, neither accepting less nor demanding more than the law prescribes.” The doctrine of the law here enunciated has direct application to the case under examination. The acceptance of the money by the recorder was an act colore officii.

It was intended as an official act and was followed by an attempted forfeiture of the deposit to the city of Cohoes. The recorder had no personal interest in the contract of deposit, so it was not within the protection of the common law as a mattér pertaining to his personal or private rights, and as an official act it had not the sanction of any statute. Nor has the doctrine of equitable estoppel here application. In whose favor could the estoppel operate ? Not in favor of the recorder nor in favor of the city of Cohoes, for that which is to be insisted on is against public policy and unlawful, and in so far as can be seen with certainty, neither the recorder nor the city were damnified by the act, and as to waiver, which is also suggested by the appellant’s counsel, that cannot help the case, for what was lawful was waived, and that which was unlawful was accepted in lieu, therefore not within the power of the court to enforce. Section 586 of the Code of Criminal Procedure, which provides for a deposit in certain cases with the county treasurer, does not touch the case in hand. It seems necessarily to follow, therefore, that as before stated, the money remained the property of McClellan in the recorder’s hands, subject to the plaintifi’s demands as receiver under the judgment in favor of Hays.

The judgment should be affirmed, with costs.

Present — Learned, P. J., Bookes and Landón, JJ.

Judgment affirmed, with costs.