text:
    Theresa Wellenhoffer, Adm’rx, Resp’t, v. The New York, Lake Erie & Western Railroad Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    Negligence—Railroads.
    Upon the trial of an action by an administratrix against a railroad company to recover damages for the death of her intestate, caused by the alleged negligence of defendant, it appeared that defendant, two years previous to the accident, erected upon the side of the crossing where intestate was killed an apparatus composed of a pole upon which a bell was placed; 1,700 feet therefrom each way on the tracks were placed annunciators so connected by wires with the bell that, as the engine passed over, they would cause the bell to ring. It was a failure and was soon abandoned, but the post and bell allowed to remain. Intestate was accustomed to pass over the crossing daily and knew the apparatus was out of order. The court charged that it was for. the jury to determine whether it was negligence for the defendant to leave the apparatus out of repair, and whether to do so was not negligence which might have contributed to the accident. Held, error.
    Appeal from a judgment entered in Cattaraugus county upon the verdict of a jury in favor of the plaintiff for three thousand dollars, and from an order denying defendant’s motion for a new trial on the court’s minutes.

      James IT. Stevens, for app’lt;

      T. IT. Dowd, for resp’t.
   Lewis, J.

This action was brought by the plaintiff as administratrix «of the estate of Thomas Wellenhoffer, deceased, to recover the damages sustained by his next of kin by his death caused by the alleged negligence of the defendant. Wildwood avenue, in the village of Salamanca, runs in an easterly and westerly direction, and crosses the defendant’s railroad tracks at grade at an angle of about forty-five degrees. The deceased, on the morning of the accident, was riding on Wildwood avenue in a sleigh drawn by one horse, in an easterly direction, and, as he attempted to cross the track of the defendant’s road, an engine drawing an express train, known as No. 13, at a rapid rate of speed, in a westerly direction, struck the sleigh in which the deceased was riding, causing his death. Where Wildwood avenue crosses the railroad is in the settled part of the village of Salamanca, and is much frequented by teams. There was evidence tending to show that the train was running at a high rate of speed as it crossed the avenue, from thirty-two to forty miles an hour. There was evidence tending to show that the bell was not rung as the train approached the crossing, nor the whistle blown, until the train was close upon the deceased. All this evidence was sharply controverted by the defendant’s witnesses, but an examination of the evidence leads us to the conclusion that the negligence of the defendant was a question for the determination of the jury. There is a sharp ascent in Wildwood avenue, just westerly of the railroad crossing. East of the avenue, on the southerly side of the railroad, there is an embankment which obstructs the view of a traveler approaching the railroad on the avenue. There is, also, a board fence on the embankment, which also tends to obstruct the view. There was much conflict in the evidence as to the distance on the avenue, westerly of the railroad crossing, that an approaching train from the east could be seen by a traveler. The plaintiff’s evidence tended to show that a train coming from the east could not be seen by a traveler but a few hundred feet past of the crossing, until his horse was close upon the southern track of the railroad.

The defendant’s evidence, based upon actual surveys and observations, tended to show that for the entire distance of sixty feet, on the avenue' westerly of the crossing the train in question was plainly visible to the deceased had he looked in the direction from which it was approaching. Plaintiff’s evidence tended to show that when the deceased arrived at a point beyond the embankment he did look in both directions along the railroad track, and apparently failed to see the train until it was so close upon him that he was not able to avoid the collision. The angle at which the avenue and railroad cross at this point brought the deceased’s face, as he approached the crossing, towards -the approaching train.

We also think that, under the evidence, the question of the negligence of the deceased was for the determination of the jury. The weight of the evidence, however, upon both of the questions litigated was, we think, with the defendant, and the jury might well have found in its favor. But, as is not uncommon in this class of actions, the verdict was for the plaintiff.

The serious question in the case arises upon the exception to the charge to the jury. If errors occurred on the trial which probably affected the verdict, a new trial should be granted.

About two years prior to the accident, the defendant caused to be erected upon the northerly side of the railroad tracks at this, crossing an appliance called upon the trial an electric or automatic bell, which was composed of a pole set in the ground, upon which a bell was placed. At the distance of about 1,700 feet easterly and westerly fr'om the bell and pole annunciators, were placed, in connection with the rails of the track, and so connected by wires with the bell that, as the wheels of the engine and the cars came in contact with the annunciators, they would cause the bell to ring. This apparatus was placed at this crossing as an experiment. The company made efforts to make it work for about a year. It proved a failure on account of its liability to get out of order. A year or more before the accident its use was abandoned, and for all that time it had not worked and had ceased to be used.

The bell was covered by a screen which had become so bent, that it was apparent to any one looking at it that it was out of use. The post and bell had, however, been allowed to remain at the crossing. These facts were fully established by uncontradicted evidence. The deceased had been engaged, during all tbe time the electrical bell had been at the • crossing, in delivering beer at saloons in the village and collecting bills. Train 13 passed this crossing daily, and. the deceased’s business called him at this crossing to meet this train from day to day. There was an absence of any positive evidence that the deceased ever saw this bell or knew of its purpose. But we must assume, from the fact that he was there daily for so long a time, that he knew of the bell and of its purpose. As the apparatus had been out of use for a year or more before the accident, and as the deceased had been there daily when this train passed this crossing, it is quite as clear and certain that he must have observed and known that it was out of order, and that its use had been abandoned. The record .shows that he was accustomed to stop at a saloon close by the crossing, almost daily, to deliver beer or collect bills. The evidence was as convincing that he knew that the apparatus was out of use, and did not indicate the approach of a train, as that he knew it was at the crossing. The jury was not at liberty to conjecture or guess that he could have been ignorant of the condition of the bell. The court, in its charge to -the jury, commented upon the electric bell apparatus, and said :

“ The evidence on the other side is that it was an experiment; that it was tried temporarily at this point and some others, hoping that it would prove a success, and it proved an absolute failure, and that instead of being a faithful indication of the approach of the train, it was sometimes an embarrassment, and had to be abandoned. The defendant's company, however, has not explained; perhaps it was not necessary;' it is for you to judge ; they have not explained why, after it had ascertained that this electric bell was a failure, they permitted the apparatus, and all the indications of the bell, to remain there without being taken down.”

The defendant’s counsel requested the court to charge the jury that no negligence on the part of the defendant can be based on account of the automatic bell which the evidence discloses had been placed at the crossing in question.

“ The Court. I have charged you upon that question, gentlemen, and I do not think it is proper to change the charge in that regard. I have said that it was a question for you to determine. I will say it now, that it is a question for you to determine ; the company, having constructed this bell and this apparatus, whether they should not be kept in repair, and whether, not keeping it in repair, under the circumstances, was not negligence that may have contributed to this result. So I decline the request.”

Defendant’s counsel excepted to the refusal to charge as requested and to the remarks of the court in relation thereto.

Had the company assumed to maintain this automatic bell for the purpose of notifying travelers of the approach of a train and then had neglected to keep it in repair, so that at the time of the accident it failed to ring, it obviously would have been a fair question to present to the jury tending to show negligence on the part of the defendant. But we do not see how any negligence could be attributed to the defendant for failing to remove the bell when it ceased to give notice of the approach of the train, or for failing to keep it in repair. The defendant was at liberty to put the bell at the crossing and it was at liberty to abandon its use. Allowing it to remain there was not evidence of negligence as to any traveler who was fully aware that its presence indicated nothing. The questions of the defendant’s negligence and of the plaintiff’s freedom from negligence, under the evidence, giving to it the most favorable construction in favor of the plaintiff, were very close questions of fact. The question as to the failure of the company to keep the bell in repair became, under the charge of the court, an _ important question, and it is altogether probable had some weight in leading the minds of the jury to the conclusion that the defendant was guilty of negligence. We think the submission of this question to the jury was error which entitles the defendant to a new trial.

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

Dwight, P. J., and Macomber, J., concur.


source: Caselaw Access Project

author: Barrett, J.

license: Public Domain

text:
    In the Matter of Grove M. Harwood et al., Impl’d, Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

    Costs—Pasty beneficially interested—Code Civ. Peo., § 3247.
    One who is not a transferee of the cause of action and who merely, in good faith, furnishes funds to a plaintiff to enable him to carry on the action, is not a person beneficially interested within the meaning of § 3247 of the Code, and cannot be compelled to pay the costs awarded to the defendants in such action.
    Appeal from order directing I. M. Taylor to pay to the petitioners Harwood & Buel the costs awarded to them in the action of George L. Strong against said petitioners.

      Charles Strauss, for app’lt;

      Grove M. Harwood, for resp’ts.
   Barrett, J.

The application to compel Taylor to pay the costs of the action instituted by Strong was founded mainly upon the alleged fact that he, Taylor, was a party beneficially interested in that action, and was consequently liable for costs under the provisions of § 3247 of the Code of Civil Procedure. That section provides that where an action is brought in the name of another by a transferee of the cause of action or by any other person who is beneficially interested therein * * * the transferee or other person so interested is liable for the costs, in the like cases and to the same extent as if he was the plaintiff.

Taylor was not the transferee of the cause of action, and the question, therefore, is whether he was beneficially interested therein. We have examined the affidavits which were presented to the court at special term, and we think the petitioners failed to show that Taylor had any interest in the action direct or indirect The action was not brought by Taylor in the name of Strong. It was not brought by Taylor at all. It was by Strong in his own name, and either for his own benefit or for the benefit of someone other than Taylor. It is quite true that he brought the action on Taylor’s suggestion, and that Taylor agreed to let him have the money to pay his attorneys. But Taylor did not even employ the attorneys. Taylor felt that the action was a righteous one, and that something should be done to compel the petitioners to restore certain moneys which were the subject matter of the action. We think that Taylor acted in good faith, and in the honest belief that the petitioners should be compelled to account to those whom he believed had been wronged. If Strong had succeeded in the action, Taylor would have received no part of the sum recovered, either directly or indirectly.

It also clearly appears that the assignment to Strong, under which he was enabled to bring the suit, was obtained without any action on Taylor’s part. In no just sense, therefore, was Taylor a person beneficially interested in Strong’s action within the meaning of the section to which we have referred. It was simply a case of a person who, deeming the action righteous, was willing to assist the plaintiff with his purse in carrying it on. This did not justify an order compelling him to pay the costs.

The respondents claim that the order should be sustained upon other grounds, namely, upon the common law ground that it was a false action instituted by Taylor in the name of another; and also that Strong, by taking the assignment in his own name, became the trustee of an express trust for the benefit of Taylor, who _ was the real party in interest. |

Both o£ these positions are weaker than the main contention. Strong’s action was not a false or fictitious one. Nor was there any trust relation created by the assignment. If the affidavits presented upon the motion at special term were insufficient to show that Taylor was beneficially interested in Strong’s action, they were certainly insufficient to sustain these other contentions. There was, in our judgment, no foundation, as matter of fact, for an order requiring Taylor to pay the costs.

The order appealed from should, therefore, be reversed, with the usual costs and disbursements, and the motion denied, with costs.

Van Brunt, P. J., and O’Brien, J., concur.


author: Van Brunt, P. J. Barrett, J.

text:
    In the Matter of the Estate of Catharine L. Wolfe, Deceased.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

    1. Collateral inheritance tax—Bes ad judicata.
    In a proceeding begun by an executor under § 13 of the act of 1885, the surrogate has no jurisdiction to determine questions of exemption or non-exemption of legatees from taxation, but his jurisdiction upon such questions can only be exercised in a proceeding by the district attorney under §§ 16 and 17 of the statute, to compel payment of the tax, and his adjudication of such questions in a proceeding under § 13 gives no protection to parties acting thereunder as against a subsequent proceeding under the other sections.

      2. Same—Religious corporations.
    Deceased died in 1887 and left a will which included gifts to certain religious corporations. In proceedings under § 17 of the act the tax was assessed in February, 1892. Held, that the rights of the state were not affected by chaps. 169 and 899, Laws 1892, as the same were not retroactive.
    Appeal by Grace Church and the Metropolitan Museum of Art from an order of the surrogate of the county of New York, confirming an assessment of collateral inheritance tax.

      S. P. Nash, for app’lt
    Grace Church; Evarts, Choate & Beaman, for app’lt
    Metropolitan Museum of Art; De Lancey Nicoll, dist. att’y (B. F. Dos Passos, of counsel), for resp’t.
   Van Brunt, P. J.

On the 4th of April, 1887, one Catharine L. Wolfe died in the city of New York, leaving a last will and testament, which was duly admitted to probate, and letters testamentary issued thereon on the 31st of May of that year. By this will certain legacies were left to appellants. On the 2d of June, 1887, the executors of said Wolfe petitioned the surrogate for the appointment of an appraiser in order that the amount of the tax upon the various legacies of the decedent might be ascertained and declared so far as said petitioners were bound to pay the same. Of this application neither the comptroller nor the district attorney had any notice. On the 23d of June, 1887, said executors filed a supplemental petition, stating that the said order of June did not prescribe the notice to be given of such appointment to the parties interested, and praying that an order be made fixing- a reasonable time for such notice to parties interested. Thereupon, on the following day, an order was made prescribing notice to several persons, not including the comptroller or district attorney. Thereafter, the appraiser appointed by the surrogate proceeded to appraise the property of the decedent subject to the tax imposed by chapter 483 of the Laws of 1885, and in August, 1887, made and filed his report, in which the sole reference to the two gifts or legacies above set forth is as follows:

Amount to be paid to institutions which are free of tax, viz.: Metropolitan Museum of Art, sixth section, $200,000; rector, wardens, etc., Grace Church, codicil, $350,000.

On the 27th of August, 1887, an order was made by the surrogate confirming said report in all things and assessing the taxes upon various legacies and gifts given by said decedent under her said will, under the provisions of said act. And it was further ordered that nothing therein contained should be construed as an adjudication as to the liability to taxation of property of said es-tote, whether thereinbefore mentioned or not, except so far as the same was thereinbefore assessed for such taxation, and that all questions as to the liability to taxation and the value for that purpose of property not therein assessed were reserved for further consideration upon the 15th of September, 1887, at eleven o’clock in the forenoon, which time and place were thereby assigned for a hearing upon the following question, viz.: Why the property disposed of in the 5th, 6th, 12th, 17th and 18th clauses of the will of said Catharine Lorillard Wolfe and in the codicil to said will should not be valued and assessed under said act; these clauses including the provisions contained in the will and codicil for the appellants. On the 3d of September, 1887, a copy of the appraiser’s report and of said order of August 27th was mailed by the attorneys for the executors to various persons, including the comptroller of the city of New York, and on the 6th of September a copy of said order of August 27th was served upon the comptroller by an assistant of the surrogate, and on the 29th of October, 1887, the surrogate made an order reciting the previous order of August 27th, and the hearing upon the questions reserved thereunder on September 15th, and thereby adjudged, among other things, that the legacies to the Metropolitan Museum of Art and the legacy to Grace Church were each of them exempt from taxation under said act.

No copy of this order was served upon the comptroller or the district attorney. After the making and entry of said order or decree of the surrogate, dated October 29, 1887, the executors of said decedent, relying upon said decree, and in good faith, paid and delivered to the appellants said gifts and legacies given to them under said will and codicil. On the 19th of March, 1889, the court of appeals decided that a religious society like Grace Church was not exempt from the tax in question. In June, 1890, by chapter 553 of the Laws of 1890, an act was passed exempting religious, educational and other societies from the provisions of the collateral inheritance tax acts. Subsequently, in June, 1890, the court of appeals decided that as there was no legislative intention shown in the act of 1890 above referred to that it should have a retroactive effect, its operation was only prospective. On the 15th of October, 1890, the petition herein was filed by the district attorney, who states that he has been notified in writing of the refusal or neglect of the executors to pay the tax as above mentioned.

The answer of the appellants pleaded the decision of the surrogate upon the final order entered upon the 29th of October, 1887, that more than two years had elapsed since said legacy had been paid, and that the jurisdiction of the surrogate in respect to the same had ceased, and claimed exemption under the law of 1890 above referred to. The matter was referred by the surrogate to a referee, who reported the facts. Exceptions were filed to the referee’s report, which were overruled by the surrogate, who adopted the conclusion of the referee that the appellants were liable to the tax.

An amendment to the act of 1885 was passed on the 19th of March, 1892, which after amending § 1 of the original act, also added to that section the following words: “ Provided further, that any property heretofore devised or bequeathed, or which may hereafter be devised or bequeathed to any person who is a bishop, or to any religious corporation, shall be exempted from and not subject to the provisions of this act.” On the 30th of April, 1892, chapter 399, the act of 1885. was remodeled, § 2 of the last mentioned act containing a similar exemption of any property heretofore or hereafter devised or bequeathed to any person who is a bishop or to any religious corporation. By the 25th section of said last mentioned act, it is provided that the provisions of this act so far as they are substantially the same as those of laws existing on April 30, 1892, shall be construed as a continuation of such laws modified or amended according to the language employed in this act and not as new enactments. A petition was filed upon the part of the appellants for leave to set up this legislation as a further answer to the proceedings, which application was denied, the surrogate holding that the provisions of the act of 1892 did not exempt the appellants from liability to the tax. Orders were thereupon entered in conformity to the decision, and the appeals now before the court were taken therefrom.

There are two questions involved in the consideration of these appeals. The first is whether the proceedings before the surrogate, by which he decided that the appellants were not liable to the tax, made the question res adjudicata. The discussion of counsel in respect to this point was largely addressed to the question as to whether the comptroller was bound by the decision of the surrogate without having received notice. It seems to us that in respect of notice, by § 13 of chap. 483 of the Laws of 1885, it is entirely discretionary with the surrogate as to what notice shall be given, and to whom; and that such proceedings may be initiated either upon the application of any interested party, or upon the surrogate’s own motion. The section provides for the appointment of an appraiser upon the application of an interested party, or upon the motion of the surrogate, whenever occasion shall require, whose duty it shall be forthwith to give such notice by mail, to such persons as the surrogate may by order direct, of the time and place he will appraise such property, and at such time and place the appraiser shall appraise the same and make a report, and, upon the receipt of the report, the surrogate shall forthwith assess and fix the then cash value, and shall immediately give notice thereof by mail to all parties known to be interested therein, and that any person or persons dissatisfied with said appraisal or assessment may appeal therefrom to the surrogate of the proper county within sixty days after the making and filing of such assessment. It is clear that in all these proceedings there is no obligation to give notice to any person until after the surrogate has made the assessment, and then notice by mail shall be given to all parties interested therein. And it would seem that it was this portion of the act which it was attempted to comply with by serving the order which the surrogate made upon the coming in of the appraiser’s report in this case upon the comptroller. The comptroller was not a person interested in the estate. His interests were not to be affected by any action which the surrogate might take. It was a question as to the right of the state; and the legislature could provide that the surrogate should go on and assess this tax without any notice to any state official. And that is what the legislature seems to have done, and, therefore, if the surrogate ' had jurisdiction to determine, in the proceeding mentioned, the question of exemption, the determination mentioned was binding.

But, upon an examination of the act, we fail to find any authority. upon the part of the surrogate to determine the question that a party is not liable to taxation except, perhaps, in a proceeding initiated by the district attorney. The surrogate has the power, upon the application of an interested party or upon his own motion, to appoint an appraiser for the purpose of assessing the tax. But nothing is said in respect to any power upon the part of the surrogate to adjudicate as to what is liable to tax and what is exempt It may be claimed that the power to assess implies the power to declare the property exempt, especially in view of the provisions of § 15 of the act of 1885, which provides that “ the surrogate’s court in the county of which the decedent was a resident at the time of his death shall have jurisdiction to hear and determine all questions in relation to the tax arising under the provisions of said act.” But this provision evidently was not intended to give the surrogate the right, in any way that he might see fit, to determine all questions in relation to the tax, but simply that, in the manner prescribed by the act, he should have authority to determine all questions relative to the tax. The scheme of the act preceding this general grant of power related only to appraisement of property, and did not furnish any machinery for determining the question of exemption. By the sixteenth and seventeenth sections, however, a method is provided for the determination of this question. Section 17 provides that whenever the treasurer or comptroller of any county shall have reason to believe that any tax is due and unpaid under this act, after the refusal or neglect of the persons interested in the property liable to said tax to pay the same, he shall notify the district attorney of the proper county in writing of such failure to pay such tax, and the district attorney so notified, if he have probable cause to believe a tax is due and unpaid, shall prosecute the proceeding in the surrogate’s court in the proper county as provided in § 16 for the enforcement and collection of such tax. And § 16 declares that if it shall appear to the surrogate’s court that any tax accruing under this act has not been paid according to law it shall issue a citation citing the persons interested in the property liable to the tax to appear before the court, on a day certain not more than three months after the date of such citation, and show cause why such tax should not be paid. In this proceeding the question of exemption or non-exemption can be determined. But until such proceeding is taken the act does not seem to provide any manner in which the issues of exemption from taxation can be presented for adjudication. It may be said that this imposes the burden upon executors of being called upon to pay legacies and upon estates of being liable to additional interest because of noncompliance with the law, although they are absolutely unable to compel a determination of their liability to pay, which is unreasonable. But this branch of the legislation is no more incongruous, remarkable and unreasonable than many other provisions of the acts relative to collateral inheritance tax; they becoming more remarkable the more the question is legislated upon. As for example in the act of 1892, it is provided that any property heretofore or hereafter devised or bequeathed to any person who is a bishop, or to any religious society, shall be exempt, whereas a legacy to -a child of the testator- is made the subject of a tax, it seeming to have been the opinion of the legislature that a bishop or religious corporation has greater claims upon testators than their own children, a piece of legislation the parallel of which it would be difficult to find among legislative enactments.

If the surrogate had no jurisdiction to pass upon the question of exemption, then it is clear that his adjudication was no protection to the parties acting thereunder.

The next question presented is: Has the subsequent legislation relieved the appellants from the payment of the tax in question ? The learned surrogate was of the opinion that it had not, and attention is called to the decision of our court of last resort in the Matter of Miller, 110 N. Y., 216; 18 St. Rep. 226. In that case the surrogate says: “ The testatrix died in September, 1886. On the 24th of March, 1887, an order was entered confirming the appraisement and assessing the tax. The tax was not paid. ■ In August, 1887, the legatee asked that the order be vacated on the ground that he was an adopted child, and that by the act passed June 25, 1887, he was exempt. He contended that the act of 1887 not only made any proceeding for its collection impossible, but that it related back to the passage of the act of 1885, and, in effect, nullified the proceeding which led to the order and annulled the order itself.”

The court said in the case cited : “ This construction would render void not only the order in question, which was valid when made, but all other similar proceedings, although regular when taken, and would, as said in Ely v. Holton, 15 N. Y., 595, ‘lead to the grossest absurdities.’ No legislative intention to that effect is discoverable in the act of 1887. The order was complete and perfect the moment it was made, subject to modification or reversal on appeal, but every step had been taken which depended for its force upon the original act. So far as the order is concerned and the rights and the liabilities of the parties thereunder, it was a transaction complete and closed before the passage of the amendatory act, and being in that condition we properly apply the words quoted in Butler v. Palmer, 1 Hill, 324, 355: ‘ The law itself may be disannulled by the author, but the right acquired by virtue of that law, whilst in force, must still remain.’ ” The surrogate then continues: “ While it is not necessary to determine at this time the effect of this amendment so far as it concerns the estates of decedents dying prior to its passage, wherein proceedings for the assessment of the tax have not been instituted or completed, it is difficult to see how, in view of the decision in the Matter of Miller, the court can hold otherwise than that the act has only a prospective effect.”

And this view of the learned surrogate, it seems to us, must prevail.

In the case of Key v. Goodwin, 4 Moore & Payne, 341-351, Lord Chief Justice Tindal laid down the rule as follows: “ The effect of the repeal of a statute is to obliterate it (the statute repealed) as completely from the record of the.parliament as if it had never passed, and it must be considered as a law that never existed except for the purpose of these actions or suits which were commenced, prosecuted and completed while it was an existing law.”

Applying these principles to the case at bar, it would seem that the assessment in question having been entirely completed, so far as the surrogate was concerned, prior to the enactment of the exemption clauses, the appellants cannot gain any benefit therefrom.

It would seem, therefore, that the decree of the surrogate should be affirmed, with costs.

O’Brien, J., concurs.

Barrett, J.

I concur. In my judgment the state was not concluded by the order originally made by the surrogate exempting these corporations from the tax. The tax is to be paid “ to the comptroller for the use of the state but that does not authorize this official to bind the state except by the result of the independent proceeding such as is provided for. in § 17 of the act.

Hor could the surrogate conclude the state by acting upon his own motion or by a decision in proceedings (instituted under § 13 of the act) to fix the value of taxable estates. The “ persons interested ” in that proceeding are those whose estates were assessable. Its sole object is to correctly assess and fix the cash value of these estates, annuities and life estates or terms of years growing out of ” the main estate of the decedent. The persons interested in having a fair appraisal are entitled to notice, and they alone can appeal- to the surrogate from his own action in assessing and fixing the cash value of their estates.

Provision for such appeal is made in favor of any person or persons dissatisfied with the appraisement or assessment, but no provision is made for an appeal by whoever may be dissatisfied with non-appraisement or non-assessment, because of supposed exemption ; a clear implication that an adjudication under this section alone, of the question of liability, was not contemplated.

Section 15 of the act is, however, invoked in aid of the jurisdiction. That section does confer upon the surrogate jurisdiction to “ hear and determine all questions in relation to the tax arising under the provisions of the act.” But this is surely subject to the ordinary rules which govern all hearings and determinations. It is not jurisdiction to hear and determine ex parte, or without notice to the person to be affected by the judgment. Here the state had no notice. An order, it is true, was served upon the comptroller, but this order was not one upon which the jurisdiction to hear and determine the question of exemption could properly be exercised. Even if it were such an order, however, and even if its service upon the comptroller would have been service upon the state, it was not such an original process or mandate as the law contemplates. The papers upon which it was founded were not served, and the order, on its face and standing alone, conveyed no clear idea that the question of liability of these particular corporations was to be considered at the time and place specified.

The comptroller was not directed to show cause against the exemption. There was simply a statement in the order that the question whether the property disposed of in certain clauses of the will should not be valued and assessed, was reserved for further consideration on a particular day assigned for a hearing. The indorsement upon the order, too, was misleading. It simply informed the comptroller that the paper was a certified copy of a decree “ confirming appraiser’s report and fixing tax, etc., in estate of Catharine L. Wolfe, filed herein, August 27, 1887." There was nothing in this to call the comptroller’s attention to the question reserved. So far, therefore, as the comptroller was concerned, the proceeding was without notice, and, as against the state, the judgment amounted to nothing more than ex parte instructions to the executors, which the surrogate was not authorized to give.

Upon the second point I think the corporations are concluded by the decretal order of February 29, 1892. The present proceeding was under § 17 for the enforcement and collection of the tax, and it was ended by this decretal order, which directed payment of a specific sum. The right of the state to the tax thereupon became vested, and this right was not divested by the subsequent passage (in March and April, 1892) of exemption acts. This proceeding was, therefore, completed under existing laws granting no exemption. The vested rights thereby acquired were not affected by the subsequent appeal to the surrogate under § !3.

The appeal authorized by this section is only as to the appraisement or assessment, not as to the right to collect and enforce a fair and proper assessment when made. The surrogate might, upon the appeal taken by these corporations under this section, have reduced the amount directed to be paid, but he could not, after a final order decreeing non-exemption and directing the enforcement of the tax assessed, treat the main question of liability to taxation as res nova. The proceedings were, therefore, complete when the exemption acts of 1892 were passed, and the state then had a judgment for the tax which was not impaired by these acts, even if the amount directed to be paid might have been reduced upon the subsequent appeal.

Decree of surrogate affirmed, with costs.


author: Van Brunt, P. J.

text:
    In the Matter of the Estate of Catharine L. Wolfe, Deceased.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

    Collateral inheritance tax—Liability of executors.
    The surrogate having no jurisdiction in a proceeding under § 13 of the act of 1885 to determine the question of exemption of legatees, his adjudication on that question is no protection to the executors, and they remain personally liable for the tax on the legacies although they have paid over the legacies to the legatees in good faith.
    Appeal by the district attorney of the county of New York from so much of the decree of the surrogate as exempts the executors of Miss Wolfe from personal liability for the collateral inheritance tax assessed against Grace church and the Metropolitan Museum of Art.
    In this proceeding by the district attorney to compel payment of the collateral inheritance tax, it appeared that decedent died April 4, 1887; that a proceeding was begun by her executors in June, 1887, under the collateral inheritance tax act, chap. 483, Laws 1885, § 13, to appraise property passing to various legatees, in which an order was made in October, 1887, by the surrogate, declaring certain legacies not liable on the ground that the legatees were exempted by law from taxation. The executors subsequently paid over the legacies in full. The comptroller was not made a party to the proceedings. In October, 1890, the district attorney filed his petition, under §§ 16 and 17 of the act. to compel the executors and legatees to pay the tax upon the legacies, whereupon they pleaded the order of October, 1887, as an adjudication in bar to the proceedings. The surrogate overruled the defense as to the legatees, but held that, as the executors had acted in good faith upon the previous order in paying the legacies, they were relieved from personal liability under the statute.

      De Lancey Nicoll, dist. att’y (B. P. Dos Passos, of counsel), for app’lt;
    A P. Nash and H. H. Man, for resp’ts.
   Van Brunt, P. J.

The facts involved in this appeal are the same as those in the case decided herewith, in which the question of the liability of Grace church and the Metropolitan Museum of Art to the tax has been discussed and disposed of, and, therefore, it is not necessary in this opinion to repeat what has already been said therein.

In the decree holding the said institutions liable for the tax, the learned surrogate also held that the executors of the decedent were not personally liable for the amount of the tax due upon the legacies to said legatees nor for the costs and disbursements herein.

The theory upon which the decision is based was that the executors had acted in good faith, relying upon the decree of the surrogate’s court, in paying over the legacies in question without retaining the amount of the tax. But if the view which we have arrived at upon the appeal relative to the liability of these institutions for the tax is correct, then we do not see how the executors can escape the liability imposed by statute. If the surrogate has no jurisdiction in the proceeding to entertain the question which he did of the exemption of these institutions from the inheritance tax, then it is difficult to see how such decree could be a protection to anybody for anything done in pursuance thereof.

If the surrogate had no jurisdiction, he had no power to make a decree which would be of any effect whatever.

If the question related merely to a matter of regularity in a proceeding of which the surrogate had jurisdiction, then, perhaps, the conclusion at which he arrived might have been upheld. But where no jurisdiction of the subject matter, viz., of the question of exemption of these corportions from the tax, has been obtained by the surrogate, his adjudication upon that subject is absolutely null and void. Therefore, as we have held that the surrogate had no jurisdiction in the proceeding to determine this question of exemption, it necessarily follows that the liabilities of parties remained precisely the same as though no such proceedings had been instituted. We think, therefore, that this portion of the decree with reference to the personal liability of the executors was wrong, and should be reversed.

As to the question of costs and disbursements of the proceedings, that was a matter within the discretion of the surrogate, and he had a right to make the adjudication as to them which he did.

The decree, therefore, should be modified in the respect named, and affirmed as modified, without costs.

O’Brien and Barrett, JJ., concur.


author: O’Brien, J. Barrett, J.

text:
    The W. J. Johnston Co., Limited, App'lt, v. Walter T. Hunt et al., Resp'ts.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

    1. Contract&emdash;Services&emdash;Injunction.
    The services of an advertising agent, although valuable, are not of the character required to authorize the issuing of an injunction, in an action for breach of contract, to prevent his working for other persons in violation Of his contract of employment.
    2. Equity&emdash;When court will not retain action to administer leqal relief.
    If, at the time of the commencement of an action in equity, in which both equitable and legal relief were sought, the facts warranted equitable relief, but, by reason of subsequent change in facts and circumstances, equitable relief is no longer necessary, or, upon the facts proved upon the trial, cannot be granted, the court, in the exercise of discretion, will retain the action to administer relief at law in the manner provided for the trial of legal actions. If, however, the evidence discloses that, at the beginning of the suit, the plaintiff was not entitled to any equitable relief, the complaint will be dismissed without prejudice to plaintiff’s right to proceed for any other relief to which he may be entitled in the ordinary way by an action at law.
    (Barrett, J., dissents.)
    Appeal from judgment of special term dismissing complaint.

      Thomas J. Keighorn, for app’lt;

      John Henry Hull, for resp’ts.
   O’Brien, J.

&emdash;This action was brought to obtain an injunction restraining the defendant Hunt from working for the defendant, the Electric Age Publishing Co„ in the capacity of advertising solicitor or agent, and for damages, on the ground that Hunt had agreed “ to devote his entire time and attention to the interests ” of the Johnston Co., “ in the capacity of advertising solicitor, and to do similar work for five years from the first day of June, 1890.”

Upon the trial, the written agreement between the parties was produced. By its terms, in addition to the provision above quoted, it further provided that the defendant Hunt, while in the employment of the plaintiff, would not “ devote _any_ of histime or attention, during the business hours or otherwise, in the interests or to the advantage of any other corporation, company, person or firm, electrical or otherwise, without the written consent ” of the plaintiff.

This agreement, as shown by the testimony, was wantonly and without any just cause or excuse broken by the defendant Hunt. Being dissatisfied with the former agreement entered into between them, he induced the plaintiff to cancel the same, and further induced it to pay $4,000 in cash, and thereupon executed the agreement which it is now sought to enforce against him.

Upon such a state o£ facts, and concededly out of no consideration for the defendant Hunt, whose bad faith was made apparent, the learned trial judge dismissed the plaintiff’s complaint, upon the ground that the contract was of such a nature as not to-entitle the plaintiff to an injunction restraining the defendant Hunt from giving his services to the other defendant, who, it appears, carries on a paper similar to that conducted by the plaintiff,, and in competition with it. The question thus presented, as stated in Daly v. Smith, 38 Sup. Ct., 158; 49 How. Pr., 150, is whether or not a court of equity will interfere by injunction to prevent a breach of a contract for personal service, or whether the complainant must look to his damages at law as his sole redress. This case, Daly v. Smith, as well as all cases germane to the subject, observe the distinction which is to be noted between affirmative and negative covenants in such an agreement, and while the court does not possess the power to compel a person to render service which he has agreed to perform, yet when he has stipulated not. to work for another, the court can and will, in a proper case, prevent his doing so.

It is not, however, in all cases where contracts are made for personal services that a court of equity will intervene, but only in cases where, as stated in Pomeroy’s Equity Jurisprudence, vol. 3, § 1343, “ a contract stipulates for special, unique or extraordinary personal services or acts, or for such services or acts to be rendered or done by a party having special, unique and extraordinary qualifications, as, for example, by an eminent actor, singer,, artist, and the like.”

As said by Mr. Justice Barrett in Strobridge Company v. Crane, 35 St. Rep., 473: “ It may sometimes be difficult to say just what is a special, unique and extraordinary service, or whether the employee possesses special, unique or extraordinary qualifications. The solution may generally be reached by the inquiry as to-whether a substitute for the employee can be readily obtained, and whether such substitute will substantially answer the purpose of the contract; in other words, whether the individual service specially contracted for is essential to prevent irreparable injury. The foundation of jurisdiction is the inability of the law to afford adequate redress.”

By the evidence in this' case it was shown that the plaintiff, immediately after the defendant had broken his contract, substituted in his place another; and, while there is some slight evidence to-show that the effect of the withdrawal of the defendant Hunt and the substitution of another resulted for the time being in some loss of advertising to the plaintiff’s paper, yet it failed to establish what is required in cases of this kind, viz., that the injury was irreparable, not capable of being ascertained and redressed by a suitable - action at law and that Hunt possessed “ special, unique or extraordinary qualifications as an advertising agent- or solicitor.” There can be no doubt that his services were valuable, because this is evidenced by the character of the agreement, the efforts put forth by plaintiff to retain his services, and the consideration provided in the agreement for his compensation.

Regarding, however, the character of the work which he was to perform and the other considerations adverted to, we do not think that there is presented a case which should demand the equitable interposition of the court.

The appellant, however, urges, and with much force, that though the court concluded upon the evidence that the plaintiff was not entitled to equitable relief, still, having the action for one purpose, and it being shown that damages resulted by reason of the defendant’s breach of the agreement, the court should have proceeded and ascertained the same, or sent the case to a referee or jury for that purpose.

This question has been many times presented, and we do not pretend to reconcile the cases; and, while there is seeming authority for the position taken by appellant, that it is within the power of the court, in an action in which both equitable and legal relief was sought upon the same state of facts, to retain the action and dispose of the question of the legal relief as though the action had originally been brought only for such relief, yet we find no case which goes to the extent of holding that the court, upon reaching a conclusion that no equitable relief should be accorded, must retain the action for such legal relief.

In determining the question as to when the discretion vested in the court should be exercised, we think it is properly employed by retaining the case for the purpose of affording legal relief in cases wbere at the time of the commencement thereof the facts warranted equitable relief and would have justified a decree in equity; and where, by reason of a change in facts or circumstances subsequent to the commencement of the action, such equitable relief is no longer necessary, or, upon the facts proved upon the trial, could not be granted. In such cases, the plaintiff, having properly brought his suit in equity, should not, by reason of subsequent events, be denied relief, it being a proper exercise of the discretion vested in the court to retain the action for the purpose of disposing of the question of legal relief in the manner provided for the trial of legal actions, thus saving the delay, labor and expense incident to the commencement of another action at law. On the other hand, where a suit is brought in equity and the evidence discloses the fact that at the commencement thereof the plaintiff was not entitled to any equitable relief, then the court, upon dismissing the equitable claim, can require that the plaintiff, for any other relief to which he may be entitled, must proceed in the ordinary way by an action at law.

Having concluded that the plaintiff was not entitled to the injunction prayed for, and that as to this part of the relief the complaint should be dismissed, the trial judge was not then obliged, even though a motion was made by the plaintiff to that effect, to send the case to the circuit court for trial, but could, as he did, dismiss the complaint without prejudice to an action at law.

We are of opinion that the judgment should be affirmed, with costs.

Van Brunt, P. J., concurs.

Barrett, J.

(dissenting)—I dissent upon several grounds: First. The learned judge at the special term should not have dismissed the complaint upon the ground that jurisdiction in equity was not shown when no such point was taken by counsel. The defendant moved to dismiss upon other grounds, and the learned judge, without passing upon these grounds, dismissed the complaint generally, assigning as a reason that the remedy was at law. Second. The defendant did not insist in his answer or suggest upon the trial that an adequate remedy at law existed. On the contrary, he treated the action throughout as properly an equitable one, and even demanded in his answer equitable relief as against the plaintiff. Third. Upon the case made by the pleadings and proofs, the contract was for the performance of personal services requiring special aptitude, skill and experience, for the breach of which an action at law would not have afforded the plaintiff an adequate remedy. The plaintiff’s revenue comes almost entirely from advertising. Hunt was an advertising solicitor, and he controlled this advertising to a large extent personally. This was because a large proportion of such advertising was obtained through his personal solicitation. He had been in the employ of Mr. Johnston, or the plaintiff, for several years, and he grew up, so to speak, with the journals which they published. The business was built up with Mr. Johnston’s or the plaintiff’s money, which was expended for Hunt’s salary and for his travel- • ing expenses when engaged in the business of soliciting advertisements. When Hunt notified Johnston that he was about to-leave, he said it was principally owing to his services that the-business was what it was, and that at least a portion of the business ought to belong to him. He at least must then have felt that-his services were “special, unique and extraordinary,” for he shamelessly demanded $10,000, and declared that if it was not paid he would break his contract, connect himself with another journal and take away half of the plaintiff’s advertising business. In his answer, Hunt did not deny the allegation of the plaintiff that—

“ By reason of his long connection with the plaintiff’s said newspaper he had become thoroughly familiar and well acquainted with the method of carrying on the plaintiff’s business, and specially with the method of carrying on his advertising business, and the methods of soliciting or securing such advertisements and with the customers or patrons of the said plaintiff.”

Mor did he deny that the knowledge which he possesses on the subject of this special advertising was acquired while in the employ of Mr. Johnston or the plaintiff.

In the same way he admits that his large and extensive acquaintance with the advertisers was formed by means of money furnished to him by Johnston, or the plaintiff, to enable him to secure for their benefit a business standing with persons, firms and corporations who needed to use the journal in question as an advertising medium.

His conduct in securing an advance of $4,000 in cash as an inducement to execute the new agreement under consideration, and in subsequently demanding $10,000 more as an inducement to be honest in fulfilling it, is properly characterized by Mr. Justice O'Brien. That, at least, "was certainly unique and extraordinary conduct, and it was based upon the undoubted fact. that his services were essential to the plaintiff and that no substitute could be readily obtained.

I think the facts in this case bring it fully within the principle enunciated in Strobridge Company v. Crane, 35 St. Rep., 473, which Mr. Justice O’Brien quotes and the authorities there referred to; and that the judgment should be reversed and a new trial ordered.

Judgment affirmed, with costs.


author: O’Brien, J.

text:
    The People ex rel. William H. Howes, App’lt, v. Thomas F. Grady, Police Justice, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

    1. Criminal law—Preliminary hearing—Counsel.
    Private counsel may appear for a complainant upon a preliminary hearing before a police magistrate.
    2. Same—District attorney.
    While the district attorney is entitled to appear upon such a hearing, he is not required, nor has he the exclusive right, to do so.
    Appeal from order denying motion for a writ of mandamus.

      Frank Moss {S. B. Brague, of counsel), for app’lt;

      David Welch, for resp’t.
   O’Brien, J.

The relator was an agent for the Society for the Prevention of Crime, and, as such agent, he made a complaint before a police justice, in which he charged a certain saloon keeper with a violation of the excise law, and, upon the defendant’s request, a preliminary hearing was had, on which he was represented by counsel. The counsel of the society appeared for the complainant, but were forbidden by the justice to take any part in the proceedings, upon the ground that, as they neither represented nor had authority from the district attorney, they could not act as counsel for the complainant.

It is true that the order recites that the relator, an agent of the society, was engaged in the prosecution of his complaint in his individual capacity, and apart from any connection with the society. But this we do not regard as material, and, if it were, we think that it is clearly made to appear that, while the relator was ■ the complainant, his action in making the complaint was as agent for the society, and that it was in the discharge oí his duty as such agent that he was prosecuting the complaint.

The question, however, presented is, whether private counsel can appear for a complainant upon a preliminary hearing before a police magistrate.

Section 203 of the Code of Criminal Procedure reads as follows : “ The magistrate may also exclude from the examination every person except the clerk of the magistrate, the prosecutor and his counsel, the attorney general, the district attorney of the county, the defendant and his counsel and the officer having the defendant in custody.’’

It is insisted, in support of the view taken by the learned judge below, that the words “ the prosecutor and his counsel ” mean the district attorney or the representative of the district attorney; and to enforce this view we are referred to the provisions of the Code of Criminal Procedure, which provide that the actions must be prosecuted in the name of the People of the state, and to the Revised Statutes which relate to the duties and powers of the district attorney. We think, however, that it would be doing violence to the language and to the manifest intention of the legislature to hold that by the words “ prosecutor and his counsel,” as used in § 203, was meant the district attorney, because in that same section provision is made for the appearance of the district attorney; but if this view is to prevail, why would it be necessary to have twice authorized the district attorney to appear by mentioning him by his title and again as counsel for the prosecution in this same section ?

The error into which we think the respondent has fallen, in referring to the provisions of the Code in respect to the prosecution of criminal actions and the duties of the district attorney, is in not observing the distinction between the preliminary hearing before the magistrate and the proceedings in a criminal action subsequent thereto. It must be remembered that upon this preliminary hearing the magistrate determines simply whether there is probable cause for holding the defendant for trial. The substantial work of prosecution does not begin until after the prisoner has been held for trial at the close of the examination, when the indictment is found, or the case comes up at the special sessions, on the prisoner’s election. Having this distinctly in view, it will be seen that outside of § 203, already referred to, the duty of the district attorney as defined in the Revised Statutes, 1 R. S., 383, § 89; Birdseye’s R. S., 877, § 1, is “ to attend the courts of oyer and terminer and jail delivery and general sessions * * * and to conduct all prosecutions for crime and offenses cognizable in such courts.’’ It is true that by another section of the Revised Statutes, 2 R. S. (8th ed.), p. 1068, Laws 1872, chap. 587, § 2; Birdseye’s R. S., 878, § 8, it is made lawful for assistants of the district attorney to attend all the criminal courts which may be held, and to assist in conducting all prosecutions for crimes and offenses cognizable therein.

This section, however, so far as it may relate to the right of the district attorney, or his assistants, to appear upon preliminary hearings before magistrates, is entirely in consonance with § 203 of the Code, which gives such right to the district attorney. But no law, so far as we have been able to find, confers upon the district attorney the exclusive right to attend on the preliminary hearings before police magistrates, such exclusive rights seemingly being confined to the proceedings in criminal actions upon and after indictment, which must be prosecuted in the name of the People of the state by the district attorney but the original warrant may be issued without his official signature as district attorney.

We find no law which imposes on the district attorney any duty to attend on preliminary hearings before the magistrate. That he has a right to attend and conduct such preliminary hearings seems reasonably clear, but this is entirely consistent with the right given to complainants, where the district attorney does not appear, to be represented by counsel. On such hearings the defendant usually seeks the advice and has the aid of astute counsel, and we fail to see why, in the absence of the district attorney, the same privilege should not be accorded to the complainant, unless it is prohibited by law.

Having reached the conclusion, however, that § 203 of the Code, by fair implication from its terms, not only does not forbid, but grants the right to the complainant to be represented by counsel, we think that the police justice was in error in refusing to permit counsel to appear, and that upon such facts being shown, the relator was entitled to a mandamus directing the police justice to accord to him a right conferred by law.

We are of opinion that the order appealed from should be reversed, but in view of the fact that the relator is the agent of a society, and the defendant a police judge who took the position in good faith in denying the right of the relator to counsel, it should be without costs.

Van Brunt, P. J., and Barrett, J., concur.


text:
    The National Broadway Bank in the City of New York, Resp’t, v. Henry F. Hitch, Impl’d, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

    Judgment—Joint debtobs.
    A judgment entered against two of three joint debtors upon a severance of the action and the overruling of their demurrer, merges the joint debt and releases the other debtor therefrom, and the court has no power thereafter to create a new liability against him by vacating such judgment.
    Appeal from order vacating judgment.

      Henry A. Forsier, for app’lt;

      William F. MacRae, for resp’t
   O’Brien, J.

This appeal brings up for review an order granting leave to plaintiff to vacate a judgment in its favor entered against two of the defendants. This action was brought in J une, 1886, on a promissory note made by the defendants under their firm name of H. H. Swift & Co., which firm was composed of Humphrey H. Swift, Alfred Gr. Swift and Henry F. Hitch. The defendants Swift separately appeared and interposed a demurrer to the complaint, which was overruled and the action severed as to them by order of the court, and judgment upon the demurrer entered as against them. Thereafter an answer was served on behalf of Hitch, setting up the judgment thus entered against the Swifts as a bar. The plaintiff moved to overrule this answer as frivolous, which motion was granted, and a separate judgment was entered thereon against Hitch; but an appeal having been taken from the order overruling the answer as frivolous, it resulted in this court reversing the order and judgment against Hitch. Thereafter the cause was placed on the calendar for trial, and, although once set down for the 17th of June, 1892, it did not come up until after the plaintiff’s application to vacate the judgment as to the' other defendants Swift, which was granted; and from such order this appeal is taken.

It will thus be seen that the plaintiff, while correct in its view that the defense of Hitch was not a meritorious one, was in error in assuming that it was bad in law. ■

Throughout the litigation and down to the decision of the court of appeals, in June, 1892, in the case of Heckemann v. Young, 45 St. Rep., 846, the plaintiff refused to assent to the doctrine laid down in that case, which held that “ it is the rule of the common law, recognized and enforced by the courts of this state, except as modified by § 1278 of the Code of Civil Procedure,” relating to judgments by confession, “that a judgment rendered against one of several joint debtors in an action against him alone is a bar to an action against the others.”

From 1886 to 1892, a period upwards of five years, the plaintiff knew that the defendant Hitch relied upon this rule of law as a defense; and the excuse presented for not making the motion sooner was principally based upon the error into which the plaintiff seems to have fallen as to the law governing the liability of joint debtors, and the rule that the entry of judgment against any merged the claim, and would release from obligation the other joint debtors.

In addition, the respondent undoubtedly had confidence in the validity of the order obtained by him severing the action as to the parties hereto, and reliance upon the efficacy of the order so entered may for a time have prevented him from moving As, however, the section of the Code, § 456, relating to the severance of parties, has reference to cases where persons are severally, and not jointly, liable, the entry of such order did not prevent, upon the entry of the judgment against two of the joint debtors, the merging of the entire debt and the releasing of the other joint debtor.

Assuming, however, that the loches in moving could be excused, the question would still be presented whether the plaintiff could obtain any relief, whether the mistake in entering the judgment was one of law or of fact. That no relief can be afforded upon the first ground we think is settled by the cases of Jacobs v. Morange, 47 N. Y., 57, and Weed v. Weed, 94 N. Y., 243, 247. If, however, it could be regarded as an error in fact, not arising upon the trial, then, not having been made within two years, the court could not upon this ground have afforded any relief. Code, §§ 1290, 1291.

But the respondent insists that the court has full and inherent power over its judgments to amend or vacate them, and is not confined or limited in its action by § 724 of the Code or the §§ 1290, 1291 last referred to.

It is true, as held in the cases referred to by the respondent, that this court has power to open defaults and to vacate judgments, and that such power does not depend upon § 724, but exists independently of that, and inheres in the very constitution of the court. Vanderbilt v. Schreyer, 81 N. Y., 646; Dinsmore v. Adams, 48 How., 274.

But while the court has ample power in respect to the correction of omissions or mistakes, and can grant relief to a party “from a judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect,” it can only exercise such power where the relief relates to a judgment or order affecting only the original parties in the proceeding, and does not affect, impair or destroy vested rights in third persons. The difficulty that is presented, and "which rendered the court upon the motion powerless to grant relief against “ the technical and harsh rule of the common law,” resulted from the fact that, by the vacating of this judgment, a new liability was created against the defendant Hitch. That this is so becomes apparent when we consider the situation of the parties at the time the motion to vacate the judgment was made. It being now conceded that the liability of Hitch for the partnership debt was wholly extinguished by the entry of judgment against his partners, the only-purpose sought to be served by vacating such judgment is to create a new liability on his part to the plaintiff, or, what is the same thing, resuscitate the extinguished liability by vacating the judgment against his partners. This, we think, the court was powerless to do.

We have been referred to no authority changing the rule at common law, “that a right of action once extinguished, as by merger, though for never do short a time, is gone forever and cannot again be revived.” Sinclair v. Hollister, 41 St. Rep., 350; People v. Bowe, 81 N. Y., 45; 2 Blackstone’s Com., 177; 3 Stephen’s Com., 316. On the other hand, while no precedent for the precise question here presented is afforded by the decisions of our own state, we are referred by the appellant to some English cases which uphold this rule of the common law relating to the revival of a cause of action once extinguished, and go the extent of holding that a court has no power to create a new liability by vacating a judgment which merged the debt and discharged the person sought to be held liable thereon. Hammond v. Schofield, L. R., Q. B. Div., vol. 1, 1891, p. 453; Odell v. Cormack, L. R., 19 Q. B. D., 223; The Bellcairn, L. R., 10 Pro. Div., 161.

We think, therefore, apart from the question of plaintiff's loches in moving, that the principle contended for by appellant is correct; that, inasmuch as the judgment against his copartners merged the partnership debt and discharged the defendant Hitch from liability thereon, the court could not create a new liability against Hitch by vacating it. We should have been pleased to have found support for the position of the learned judge below in seeking to relieve the plaintiff from the harshness of the rule at common law, but, as the relief sought to be obtained was beyond his power to grant, our conclusion is that the order appealed from must be reversed, with costs and disbursements, and the motion to vacate denied.

Van Brunt, P. J., and Barrett, J., concur.


author:
Lawrence, J. O’Brien, J.
      Yak Brunt, P. J.

text:
    Edwin Butler, Resp’t, v. Garrett D. Clark, Individually, and as Adm’r, et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

    1- Deed—Reformation of Sheriff’s.
    A court of equity has jurisdiction and power to reform a sheriff’s deed by correcting an error in the description by metes and bounds, where other parts of the description, taken in connection with facts existing and patent at the time of the sale, identify the premises actually intended to be conveyed with reasonable certainty.

      2. Same—Parties.
    The sheriff who executed such deed is not a necessary party to the action. (Van Brunt, P. J., dissents.)
    3. Same.
    The judgment debtor whose interest was conveyed by said deed is a proper and necessary party to such action.
    4. Same.
    Where the complaint also asks to have declared void an alleged sale of said interest by a subsequent sheriff, under an execution upon another judgment against said judgment debtor, such subsequent sheriff and the grantee named in a deed under such alleged sale are proper parties.
    Appeal from judgment in favor of plaintiff in an action tried at special term.

      William H. ArnouX; for app’lts;

      Henry P. iStarbuck, for resp’t.
   Lawrence, J.

This action was brought by the above-named respondent, Edwin W. Butler, as plaintiff, to obtain, as against the above-named appellants, Garret D. Clark, individually, and as administrator of the goods, chattels and credits of Sarah Clark, deceased, Edwin Clark, Jessie Fremont Clark, and others, who have not appealed, as defendants, a judgment reforming a sheriff’s deed, made pursuant to a sale, under execution, of the interest of Edwin Clark in certain property in the city of Hew York. The action as brought had also certain other purposes which are immaterial upon this appeal.

For the purpose of a: full understanding of the case a chronological statement of the facts will be necessary.

On the 18th of September, 1879, Sarah Clark, the mother of Edwin Clark, recovered judgment against him for $1,725.56. On the 10th of March, 1883, Johanna Donovan recovered judgment against Edwin Clark for $311.42. On the 8th of February, 1885, Sarah Clark died intestate, seized and possessed of the premises which form the subject of this controversy, and of certain personal property, leaving her surviving Edwin Clark and a granddaughter, Sarah E. Clark, now Mrs. Worden, her only heirs-at-law. She also left her surviving the appellant, Garrett D. Clark, who has ever since been in possession of the premises as tenant by the curtesy.

On the 25th of February, 1885, Garrett D. Clark, the husband, was appointed the administrator of the estate of Sarah E. Clark. On the 2d of January, 1886, Edwin Clark conveyed his interest, as one of the heirs at law of Sarah Clark, to Celia K. Haynes, and on the same day Celia K. Haynes conveyed the same to Jessie Fremont Clark, the wife of Edwin Clark.

On the 7th of October, 1887, execution was issued on the Donovan judgment against Edwin Clark, and on the 6th of December, 1887, a sale was made by the sheriff under that judgment, at which sale the sheriff sold Edwin Clark’s interest in the premises inherited from his mother to John ,H. Birch; on the 15th day of March, 1889, this interest, not having been redeemed, was conveyed to said Birch by Hugh J. Grant, then sheriff of the city and county of New York.

The sheriff’s deed followed the description contained in the deeds by which Edwin Clark had previously conveyed the property to his wife, and, while describing the premises in other respects accurately by metes and bounds, located them erroneously as 151 feet, instead of 181 feet west from Seventh avenue. The sheriff’s deed, at the end of the description of the premises conveyed, contained the following recital: Being the same premises of which Sarah Clark died seized on the 8th day of February, 1885, and which are known as No. 216 West Forty-third street, m the city of New York.”

It was shown on the trial that Garrett D. Clark was present with his counsel at the sale, and that he knew that Mrs. Sarah E. Clark was in possession of the premises at the time of her death, and did not hold title to any other property on that street at the time of her death; that the whole south side of the street was built up with a continuous row of houses covering one lot apiece and marking the locations and widths of all the lots to the eye; that no lot commenced 151 feet west from Seventh avenue, but that the point on the south side of the street lying at that distance west from the avenue fell within a lot seventeen feet wide, four feet from one side and thirteen feet from the other, on which stood a house of which the street number was 212 and which was built in 1856 ; that there was no other lot nineteen feet wide on the block than No. 216 ; that the nearest in width of the narrower lots was seventeen feet wide, and the nearest of the wider lots twenty feet, the latter being 200 feet away; and that the house No. 216 covered the premises in question, and had been so built and numbered since 1855.

On the 30th of August, 1889, John H. Birch conveyed his interest in the premises to the respondent by a deed in which it was correctly described; and this action was commenced on the 3d day of September, 1889, to reform the sheriff’s deed by changing the word “ fifty ” to the word “ eighty ” in the statement therein of the distance of the said lot, piece or parcel of land from the corner of Forty-third street and Seventh avenue.

It was alleged in the complaint that Edwin Clark’s distributiye share of the personal estate of his mother exceeded the judgment held by the administrator, and that an error had been committed in the sheriff’s deed whereby the premises included therein were described as being 151 feet from the corner, instead of 181 feet, as it should have been. The complaint prayed for an accounting of the administrator to determine the distributive share of Edwin Clark; second, for the application of such distributive share to the extinguishment and cancellation of the Clark judgment ; third, if such distributive share is insufficient therefor, then to determine the excess, and compel the sheriff to pay the same; and, fourth, to reform the sheriff’s deed by changing “ fifty ” to “ eighty.”

The plaintiff subsequently filed a supplemental complaint, alleging that the judgment obtained by Mrs. Clark against Edwin Clark ceased to be a lien upon the premises on the 18th of September, 1889, and that on the 23d day of October, 1889, the said sheriff, under said judgment, sold the interest of Edwin Clark in the premises he had inherited from his mother for $2,725 to Garrett D. Clark, but that he had not paid anything on account thereof, and prayed that said sale be declared void and abandoned and that the sheriff should be enjoined from completing the same.

The answers put in issue the material allegations of the complaint respecting the right of action in the plaintiff.

Several questions are presented by the appellants upon this appeal; but the main and radical question discussed by them is as to the alleged error of the justice presiding at the special term in refusing to dismiss the action as against all the defendants.

It is argued, in the first place, that neither the plaintiff nor Sheriff Flack was a party to the deed complained of, and that Sheriff Flack, as the official successor of Sheriff Grant, was not answerable for the errors or mistakes of the latter. This is true, but the admission of that fact is not conclusive upon the question whether the plaintiff is entitled to have the deed of Sheriff Grant reformed, if the court can see that, in point of fact, the latter not only intended to sell, but actually sold, the premises FTo. 216 West Forty-third street. Common certainty is all that is required in the descriptions of real property upon a sheriff’s sale under execution. Code Civ. Pro., § 1435. And, as was said by Mr. Justice Davis in delivering the opinion of the supreme court of the United States in White v. Luning, 93 U. S., 523: “In regard to the description of the property conveyed, the rules are the same whether the deed be made by a party in his own right or by an officer of the court. The policy of the law does not.require courts to scrutinize the proceedings of a judicial sale with a view to defeat them. On the contrary, every reasonable intendment will be made in their favor so as to secure, if it can be done consistently with legal rules, the object they were intended to accomplish.”

To the same effect is Farmers' Loan & Trust Co. v. Eno, 21 Abb. N. C., 220; Hathaway v. Power, 6 Hill, 453; Dygert v. Pletts, 25 Wend., 402, and numerous other cases.

In Hathaway v. Power, supra, the court said: “Where the description given in a deed contains several particulars, all of which are necessary to ascertain the land intended to be conveyed, nothing but what will correspond with all those particulars can pass by the grant; but if there be certain parts sufficiently ascertained to locate the land, the addition of false or mistaken particulars will be rejected.”

In Dygert v. Pletts, supra, it was held that a sheriff’s deed conveying all the right and title of the defendant in an execution to a lot of land, described as lying on the south side of a particular creek, in a given town and county, is not void for uncertainty in the description of the premises, although but a single line be given in the deed as a boundary, where the fact is shown that the defendant in the execution claimed to be the owner of the land situate between such line and creek. Nelson, Ch. J., in delivering the opinion of the court in that case, said: “ Certainty to a common intent is all that is required, and if there be a certain number of particulars given sufficient to designate the thing intended to be granted, the grant will be effectual, though there may be others false and mistaken. Citing 6 Cow., 281. Also, that it should be as favorably construed for the grantee as is consistent with the rules of law, res magis valeat, quam pereat.”

In the case of Ousby v. Jones, 73 N. Y., 621 (opinion in full annexed to respondent’s brief), the court of appeals held that the (louse in the description of property contained in a deed coming last, and seeming to be the intention of the parties to the conveyance, must have a controlling effect upon all the phrases used by the draftsman in setting forth the description of the premises.

Bearing in mind the provisions of the Code of Civil Procedure, above referred to, and the principles enunciated in the cases just cited, we have no difficulty in coming to the conclusion that the premises intended to be conveyed by the sheriff were those known as No. 216 West Forty-third street, of which Sarah Clark died seized on the 8th of February, 1885. The error in locating the premises as commencing at a point 151 feet westerly, instead of 181 feet westerly, from -the corner formed by the intersection of the southerly side of Forty-third street and the westerly side of the Seventh avenue, does not, in our opinion, nullify the deed. The premises are sufficiently identified by the recital at the end of the description, and by the fact that Sarah Clark had never possessed any other property upon that street, and that she died in possession of the same. We think, therefore, that the judgment correcting and reforming the sheriff’s deed by striking out therefrom the word “fifty ” and inserting in place thereof the word “ eighty ” in the distance as therein stated and given of the premises from the southwest corner of Forty-third street and Seventh avenue is correct.

The plaintiff does not ask to have a new deed executed by the defendant, Flack, in lieu of that executed by Grant, the former sheriff; he does not ask for any other deed, but simply prays that the deed actually executed may be corrected as to a clerical error, all of the parties who were shown to have any interest in the premises conveyed being before the court. He asks, in other words, to have an official act made to conform to the actual understanding and intent of all the parties. And for this purpose it was not necessary that Grant, the former sheriff, should be made a party to the action. On the evidence in the case, there can be no reasonable doubt as to what premises were intended to be conveyed, and it is the duty of a court of equity, on the facts presented, to see that that intention is made clear upon the record.

It is contended, however, that Flack was not a necessary party to this action, inasmuch as he could not correct the alleged error of his predecessor. We have shown that he is not called upon to do so. But there are two answers to this objection on the part of the defendants. There is no answer or demurrer to the effect that there is a defect or improper joinder of parties in the action ; and, secondly, Flack was a proper party to the action, because a portion of the relief sought by the plaintiff in his supplemental complaint was to have declared void an alleged sale by Sheriff Flack under an execution issued on the judgment obtained by Sarah Clark against Edwin Clark on the 18th of September, 1879, and to restrain said Flack from making, executing, delivering or filing any certificate of sale or deed based upon said attempted sale, etc. Barbour on Parties, 735, and cases cited.

The appellants further contend that the court improperly denied the motion to dismiss the complaint as against Edwin Clark, the judgment debtor, through the purchase of whose interest on the sale, and under the deed aforesaid, the plaintiff claims his title. This objection we regard as unfounded, for the reason that the main object of this action is to reform a deed executed upon the sale of his interest; and, being a suit in equity, he was a proper and necessary party in order that his rights might be ascertained, if any he had, and protected, and that every person interested in the remotest degree in the premises sold should be before the court.

It is also contended that the court improperly denied the motion to dismiss the complaint as against Garrett D. Clark individually. But this position is not tenable, for the reason that it was admitted by the supplemental answer of the defendant Clark, that on the 31st day of March, 1891, Flack, as sheriff, had executed and delivered to him a deed bearing date on that day, whereby he conveyed to the defendant all the right, title and interest which the defendant, Edwin Clark, had on the 18th day of September, 1879, in the property in question, although at that time, as Sarah E. Clark was alive, Edwin Clark had no interest in the property. The defendant, Garrett D. Clark, relies upon the same as giving him an interest in the property in his individual right, independently and distinctly from any right which he had.in the premises, either as tenant by the-curtesy, or as administrator of his wife’s estate.

The cases which are cited by the learned counsel for the appellants are not adverse to the views we have expressed. Whatever doubts there may have existed theretofore as to the power of the court to reform a sheriff’s deed, in an action to which even the sheriff was not a party, was set at rest by the court of appeals in the case of Bartlett v. Judd, 21 N. Y.,200, in which the case of Mason v. White, 11 Barb., 173, which was supposed to sustain a contrary doctrine, isdiscussed. Mr. Justice Bacon, in delivering the opinion of the court says, after showing that the facts in the case of Mason v. White were different from those in Bartlett v. Judd and that in that case paroi evidence as to the intention of the sheriff in regard to the land intended to be sold might well have been excluded : “ But when the learned judge in that case states that, although as between man and man deeds may be explained and reformed by reason either of fraud or mistake, but thatlthe deed of a sheriff cannot be thus reformed, he states a proposition for which I can find no authority in the books and from which I am constrained to dissent. The only case referred to for this doctrine is Jackson v. De Lancy, 13 Johns., 539, which certainly decides nothing more than that in a sheriff’s deed the land must be described with reasonable certainty. The deed in that case having undertaken to convey, with two parcels well described, all the other lands of William, Earl of ' Stirling, in the county of Ulster, it was held to be void for uncertainty. No such principle as this was necessary to the decision of the case of Mason v. White, which can well stand without its aid. And, if fully carried out, this doctrine would place both the certificates and the deeds of sheriffs utterly beyond the reach of the law, although its aid were invoked upon the clearest proof of inadvertence, mistake or fraud."

It was within the power of the justice who tried the cause at special term to reopen the case upon notice to the parties, and to receive the additional evidence which is contained on pages 49 and 50 of the case. In that respect he had a discretion, and there is nothing to show that the discretion was abused. Indeed, it seems to have been wisely exercised, as it put the court in complete possession of all the facts of the case, and enabled it to adjust and settle the rights of the parties as justice and equity required.

We are of the opinion, therefore, that the judgment below should be affirmed, with costs and disbursements.

O’Brien, J.

The judgment corrected the error in the description. No deed or act of Grant, as sheriff, was necessary for this purpose, and apart from his former official relation, he was in no way connected with the property. All persons having an interest were made parties, and the judgment could be rendered without the presence of the sheriff, against whom no judgment was asked and from whom nothing was required. I concur, therefore, with Mr. Justice Lawrence for affirmance.

Yak Brunt, P. J.

(dissenting.)—I dissent. I am of the opinion that Sheriff Grant was a necessary party to the action. I do not see what authority the court had to alter an instrument executed by a person without giving him an opportunity to be heard. Judgment affirmed, with costs and disbursements.