text:
    Nicholas S. Mundy, Resp’t, v. The New York, Lake Erie & Western Railroad Company, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February, 1894.)

    1. Nuisance—Flood.
    Whether a flood of an extraordinary character was such that it should have been anticipated and.provided against, is a question for the jury.
    2. Same—Statutobt Sanction.
    Where the terms of a statute, giving authority to a railroad corporation, are not imperative but permissive, this does not confer license to commit a nuisance, though what is contemplated cannot be done without that result.
    3. Same—Cause.
    The defendant is liable for an injury arising, without the fault of plaintiff, from two causes, for one of which he is responsible.
    4. Same—Notice.
    Notice to the division superintendent of the company, who had charge of the road in the locality in question, is notice to the company.
    Appeal from a judgment entered in Chemung county on the 15th May, 1893, upon a verdict rendered at the Chemung circuit in December, 1890, in favor of the plaintiff for $1,400; also from an order at special term denying a motion for a new trial upon a case and exceptions.

      M C. Sprague and D. C. Robinson, for app’lt; Frederick Collin, for resp’t.
   Merwin, J.

This action is brought to recover damages sustained by the plaintiff by reason of a flood occurring on the 1st day of June, 1889. At that date arid for many years prior thereto, the plaintiff owned a farm situated on the northerly side of Chemung river, in the town of Big Flats, in the county of Chemung. This farm extended from the river northerly across the valley, a distance of about a mile. Through the farm and along the valley, and some distance from the river, the railroad of the defendant passed in a direction easterly and westerly. The track was laid upon an embankment that was above the surface of the ground and extended, substantially straight, westerly to Bast Corning station, a distance from plaintiff’s farm oí about a mile and a half. The general direction of the river in that locality was from the west easterly. At Bast Corning station it came from the south-west and ran near to the railroad embankment. It there made a sharp curve to the east and south, and thence it ran easterly beyond plaintiff’s farm. The railroad was originally constructed by the New York and Brie Railroad Co., in 1849. In 1861 it passed into the hands of the Erie Railway company, and in or about April, 1878, the defendant became the owner.

In the complaint it is alleged that the embankment, which 'the defendant maintained upon its lands in the vicinity of the farm of plaintiff, was an obstruction to the course of the waters flowing naturally in and from the Chemung river in times of high water or freshets; that the Chemung river is and always has been subject to freshets and to rise in the waters in the vicinity of plaintiff’s farm, and prior to the building of such embankment such waters passed west and north of plaintiff’s farm; that some distance west of plaintiff’s farm the predecessors of defendant placed in the embankment a narrow and insufficient culvert which was wholly insufficient for the passage of the waters of the river in times of floods or freshets, and that this was maintained by the defendant wifh notice that it was insufficient, and that by reason thereof the the waters would be liable to pass along down on the southerly side of the embankment to the plaintiff’s farm and to his injury; that in June, 1889, at the time of a rise and freshet in the waters of the river, the waters of the river overflowed its banks, and came against the embankment, and then, by reason of ■ the embankment and the insufficiency of the culvert, were turned from their natural course and came down on the southerly side of the railroad to the plaintiff’s farm, injuring the farm and the personal property thereon to the extent of fourteen hundred dollars ; that prior to this time the plaintiff notified the defendant that the embankment and culvert were a nuisance and liable in time of floods to cause him great injury.

The defendant in its answer, among other things, denied the insufficiency of the culvert and alleged that the railroad was constructed and is maintained in a careful, skillful and proper manner.

Erom the evidence'it appears that about a mile westerly of the plaintiff’s farm, the embankment of the railroad passed over a considerable depression in the natural surface of the ground. This extended, several hundred feet, the height of the embankment above the surface ranging from ten to four or five feet. In the embankment over this depression there was a culvert seventy-four feet wide with a pier in the centre. This depression started at the bank of the river near the station at the point where the river came up and curved to the east and south. It was at the river about forty rods wide and extended beyond the railroad embankment northeasterly. The culvert was placed at right angles to the embankment so that the waters as they came down the depression or channel were required to turn northwardly in order to pass through. This depression was described by several witnesses as being the flood channel or watercourse with well-defined banks, which at times of floods would take the overflow of the river at the curve and carry it northeasterly beyond the locality of the railroad embankment and thence eastwardly until it reached Big Flats or Gardner’s creek, and thence passed to the river below the plaintiff’siarm. The overflow at times was said to constitute a good-sized river.

At the place on the river bank where this flood channel started, for the purpose apparently of stopping to some extent the overflow at that point, a dyke or embankment along the bank of the river for about fifty rods had been constructed in 1851 by the predecessor of defendant, and another one in 1866. This in 1886 had become dilapidated, and at that time it was that the plaintiff notified the officer’s of the defendant that with the dyke in that condition the culvert in the railroad embankment would not, in case of flood, carry off the water, but that it would be thrown by the embankment on to the lands on the south side of the track and pass on down to the farm of plaintiff. It had done so to some extent at a flood in 1865, and the defendant was so informed.

The flood on June 1, 1889, was an unusual one. There had been similar floods in 1865 and in 1833, but not so large. There is no question about the plaintiff's property being in fact flooded and injured, and the question is whether the defendant is responsible for the injury.

The plaintiff at the trial claimed and gave evidence tending to show that the waters that came down upon and injured him came from the Chemung river at the curve where the dyke had been placed, and then passed down in the flood channel to the railroad embankment, where, by reason of the inadequacy of the culvert in position and size to afford passageway, they were turned eastwardly and along the south side of the railroad and passed down to the plaintiff’s farm, and that if the passageway at the culvert had been adequate, the waters would have passed off to the north ■and east and his injury been avoided. The defendant claimed and gave evidence tending to show that the waters that injured plaintiff did not come from the river at the dyke and were not ■cast upon the plaintiff by means of the embankment or want of passageway at the culvert, but were waters that flowed over onto plaintiff from other portions of the river, and were waters that were set back by reason of the waters of the river being dammed up at a gorge about three miles below, and that the flood was so high that the plaintiff would have been overflowed just as much had there been no embankment at all over the flood channel at the culvert. Whether the claim of the plaintiff or that of the defendant was correct upon the evidence, was a question of fact and in effect was found in favor of the plaintiff. The evidence warranted the finding.

The defendant, however, claims that upon the undisputed ■evidence the flood was so extraordinary that it should be said as matter of law that the defendant was not liable.

In Mayor, etc., v. Bailey, 2 Denio, 443-441, it was said by the chancellor that a party constructing a dam should construct it in such a manner as to resist such extraordinary floods as might have been reasonably expected occasionally to occur. This rule was approved in Gray v. Harris, 107 Mass. 492, and it was there held that it was a question for the jury whether a flood of an extraordinary character was such that it should have been anticipated and provided against. A like view is taken as applicable to a case like the present one, in The Ohio & Miss. R. Co. v. Ramey, 139 Ill., 9; Same Co. v. Thillman, 143 Ill., 127; Railway Company v. Pomeroy, 67 Tex., 498; Borchardt v. The Warsaw Boom Co., 54 Wis., 107. In Hartshorn v. Chaddock, 135 N. Y., 116, 120; 48 St. Rep. 932, a recovery was sustained for damages from a flood occurring at the same date as in the present case, although the defendant claimed it was so extraordinary and unusual as to be deemed an act of (rod, it appearing that though the freshet was unusual with respect to the volume of water, yet that similar ones but of less power have occurred in the past and are liable to occur in the future.

The flood of 1889 was higher than ever before, but similar ones had occurred in 1833 and in 1865, and numerous others not so large. It was shown that the river for many years prior to 1889 had been subject to sudden variations and heavy rises and there had been a steady increase in the floods, and they rose quicker in later years than formerly.

We think it should not be held that the flood was so extraordinary that the defendant should be relieved from all liability.

It is further claimed by the defendant that it was authorized by law to construct its road upon its own land and is not liable under the rule laid down in Moyer v. N. Y. C. & H. R. R. Co, 88 N. Y., 351. In that case damages had been awarded to the plaintiff as having been caused by the raising of the bed of defendant’s road. It was said that there was no proof that that cause contributed in any way to the damage; that the defendant was authorized by law to construct its road upon its own land, and if it constructed it in a skillful and proper manner, it could not be made responsible to persons receiving incidental or consequential damages; that there was no allegation or proof that it was unskilfully or improperly done, but it was found that the embankment was built in a workmanlike and skillful manner, and the case of Bellinger v. N. Y. C. R. R. Co., 23 N. Y., 47, was referred to as sustaining the position that the defendant was not liable for consequential damages to any persons caused by the necessary and proper elevation of its roadbed, not in a channel of a stream, but on its own land. In the Bellinger case, which related to the same railroad as the Moyer case, it was said that the defendant was liable only on the basis of negligence. The Bellinger case was considered in the case of Coggswell v. N. Y., N. H. & H. R. R. Co., 103 N. Y. 10; 3 St. Rep. 56, and it is there said that the ruling in the Bellinger case was based on the fact that the company was authorized by statute to construct its road across the creek at the point where it was located, and that it therefore was liable only for such consequences as were attributable to a failure to exercise due care and skill in executing the statute authority. The Coggswell case was an action for damages for a nuisance in the maintenance of an engine house, and it was held to be no defense that it was necessary for defendant to have its engine house located where it was, or that in the management thereof it exercised all justifiable care. The rule was laid down that the statutory sanction, which will justify an injury to private property, must be express, or must be given by clear and unquestionable implication from the powers expressly conferred, so that it can fairly be said that the legislature contemplated the doing of the very act which occasioned the injury ; that where the terms of a statute giving authority to a railroad corporation are not imperative but permissive, this does not confer license to commit a nuisance, although what is contemplated by the statute cannot be done without. In Morton v. Mayor, etc., 140 N. Y. 207 ; 55 St. Rep. 413, a similar view is taken. In Booth v. R. W. & O. T. R. R. Co., 140 N. Y. 272; 55 St. Rep. 656, it is said to be now the settled doctrine in this state that the powers granted to railroad corporations are to be construed as privileges conferred, but upon the understanding that they shall be exercised in strict conformity to private rights and under the same responsibility as though the acts done in execution of such powers were done by an individual.

In the present case, no statute authority is shown to relieve the defendant from the consequences of a nuisance, if one in fact existed, or to require the plaintiff to base his action on negligence simply. In the absence of such authority the ordinary rule of liability would apply. See Angel on Watercourses 6th ed. § 331 a; Campbell v. Seaman, 63 N. Y. 577; People v. N. Y. C & H. R. R. R. Co., 74 N. Y. 302 ; Brown v. Cayuga & Sus. R. R. Co., 12 N. Y. 486.) The complaint alleges an obstruction by defendant of the natural course of the water and the insufficiency of the culvert, by means of which the water was thrown upon plaintiff’s property to his injury. A nuisance is in substance alleged and the evidence warranted the finding that one existed. In the light of the later cases, we fail to see how the Moyer case helps the defendant. It is suggested by the defendant’s counsel that the court at the trial turned the action substantially into one of negligence. The rulings of the court, however, on this subject were not objected to by the defendant and there appears no good reason for defendant to complain in that regard.

It is further claimed that the court erred in submitting to the jury the question whether the damage would not have occurred if the flood had not been of extraordinary character.

There were some expressions in the main charge to that effect, but it is doubtful whether there is any exception sufficiently definite to raise the question. Besides the charge in that respect was subsequently modified. At the close of the charge and after the disposition of some requests, the counsel for defendant excepted “to that portion of the instruction of the court which states that if the flood was extraordinary and caused the injury, the jury might still find for the defendant, notwithstanding the flood was of an extraordinary character.” To this the court replied, addressing the jury, “If you first find that the defendant was negligent, and that such negligence caused the injury, and then find that the injury would have happened by such waters as might reasonably be expected, then the fact that the flood was extraordinary, will not defeat the plaintiff’s right of action.” To this the defendant excepted. The defendant’s counsel then said : “ The court stated to the jury that if this had been an extraordinary flood and caused the injury, the defendant xnight be liable, if they could predicate negligence upon it; and we except to that portion of the charge; the point we except to being that the flood being extraordinary they have not the right to consider it as an ordinary one for the purpose of imposing liability upon the defendant.” To this the court replied that what he meant by that was, that if this flood was one which in the judgment of thejuiy the defendant in the exercise of reasonable care should have anticipated, then, if the injury was caused by the negligence of the defendant, it was liable. No exception • to this was taken. The court had previously stated very distinctly what in his judgment was the measure of the duty upon the defendant. At the close of the plaintiff’s evidence and after denying the motion for non-suit, the court held that the defendant has no other duty than to provide a sufficient water-way to take away the water that might reasonably be expected. This the defendant did not except to and it has no good reason to complain of the rule. The same rule was repeated in the charge and the jury were told that if in this respect the defendant failed to perform its duty, and such failure caused the injury, the fact that the flood was extraordinary would not relieve the defendant. In this, there was no error prejudicial to defendant’s rights. It would at most be the case of an injury arising without fault of plaintiff from two causes, for one of which the defendant was responsible, and therefore for the injury. Phillips v. N. Y. C. & H. R. R Co., 127 N. Y., 657; 38 St. Rep., 675. The evidence warranted the jury in finding that the injury was wholly or partly the result of the negligence of defendant, and therefore the rule laid down in Grant v. Penn. & N. Y. C. R R. Co., 133 N. Y., 657; 45 St. Rep., 305, and kindred cases cited by defendant’s counsel that a verdict must be based on something more than speculation does not apply. In some cases it has been held that an apportionment of damages would be made. Washburn v. Gilman, 64 Me., 163 ; Railway Co. v. Hoag, 90 Ill., 339; Nitro Phosphate & C. C. M. Co. v. London & S. S. K. D. Co., L. R. 9 Chan. Div., 503. No point however as to this was made at the trial, and it is not necessary here to consider it.

Our attention is called to a number of exceptions to rulings upon evidence. We, howevei’, find no error prejudicial to the defendant. No point is made here on the subject of notice to the company. It would seem that notice to the division superintendent of the company that had charge of the road in the locality in question should, be deemed to be notice to the company. Brayton v. N. Y., L. E. & W. R. R. Co., 54 St. Rep., 763; Quincy Coal Co. v. Hood, 77 Ill., 68; Fulton Bank v. N. Y. & Sharon Canal Co., 4 Paige 137.

The foregoing considerations lead to an affirmance of the judgment.

Hardin, P. J., and Martin, J., concur.

Judgment and order affirmed with costs.


source: Caselaw Access Project

author: Merwin, J.

license: Public Domain

text:
    Rosell C. Collis, Resp’t, v. Martin V. B. Bull et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed February, 1894.)

    1. Payment—Notice.
    A person who knows, or has good reason to believe, that another claims an entire fund, is in no position to say that he, in good faith and in ignorance of such rights, made advances therefrom to a third party.

      2. Appeal—Finding.
    An error in the admission of evidence upon a point involved is cured by a finding thereon in favor of the appellant.
    8. Same—Evidence.
    The exclusion of evidence is not reversible error, where the evidence, already in the case, gives the appellant all he can reasonably ask on the subject.
    Appeal from a judgment entered in Oneida county on the 3d March, 1893, upon the report of a referee in favor of the plaintiff for the sum of $4,167.65, besides costs.
    It is found by the referee that on the 2d June, 1891, the plaintiff was the owner and in possession of a certain note and trust deed executed by Edward Werner for $3,700, upon which at that time there was due seventy-four dollars, of accumulated interest; that the note and trust deed were dated August 1,1890, and bore interest at six per cent, payable semi-annually, and the plaintiff held a proper assignment of the same executed in blank so that title to the same could be transferred to such person as plaintiff might choose; that on 2d or 3d June, 1891, the plaintiff delivered to the defendants the said note and trust deed and the said assignment, and such delivery was made to defendants as plaintiff’s agents and for the purpose of immediate sale for plaintiff and they were requested to pay over the avails thereof to the plaintiff when the said securities were sold; that thereafter and prior to the sale thereof by defendants the plaintiff demanded of the defendants the return to him of said securities, but the defendant neglected and refused to return the same to plaintiff; that on or about September 9, 1891, the defendants sold and transferred the same and received the avails thereof being then the sum of $3,835.66, and have retained and still do retain the same; that after the sale by defendants and before the bringing of this suit the plaintiff demanded of defendants the said avails but the defendants have neglected and refused to pay the same or any part thereof. Judgment was ordered for $3,835.68, with interest from September 9, 1891. This suit was commenced December 28, 1891.

      Hale & Bulkeley, for app’lts; Edmund J. Wager, for resp’t.
   Merwin, J.

The recovery in this case is for the amount of a note and trust deed or mortgage executed by Edward Werner on August 1, 1890, for the sum of $3,700, to The Western Farm Mortgage Trust Company. This note, and deed were executed in and according to the laws of the state of Colorado and constituted a valid security in the hands of the company for the amount thereof. This security, which is called in the papers the Werner mortgage, was on or about April 1, 1891, duly sold and transferred by Trust Company to one Goodwin. The assignment from the company in proper form was in blank. On the 2d June, 1891 the plaintiff, as be claims, purchased this security of Goodwin and became the owner thereof, and at that date or soon thereafter placed it in the hands of the defendants for sale for his benefit and that thereaftef they upon demand refused to return it to plaintiff, but on or about the 9th September, 1891, sold and transferred the same and received the full amount thereof and refused to pay the same or any part thereof to plaintiff.

The defendants admit that they received and sold the security and received the avails, but 'they claim that the plaintiff never became the owner of the security; that he in the purchase from Goodwin acted as the agent of the Trust company, and the defendants when they sold it also acted as agents for the same company and have accounted to it for the avails by giving it credit therefor in their account with it. ■

The referee has found that the plaintiff was the owner of the • note and mortgage at the time they were placed by him in the hands of defendants. This finding, the defendants say, is against ,the weight of evidence.

The plaintiff testifies, and he is corroborated somewhat by the evidence of Mr. Goodwin, that on the purchase from Goodwin, he used entirely his own means. There is evidence that the plaintiff undertook the purchase for the accomodation of the defendants, and finally completed it upon the assurance of the defendants that they had a customer ready to take it, so that he would be immediately reimbursed for what he had to pay in order to obtain it. The customer of defendants failed to take the security, and the defendants refused to return it to plaintiff, or pay him for it. .There is evidence that the plaintiff was willing to settle with the defendants upon the basis, that the Trust company would give him credit for the amount. This however it did not do. If the transaction between plaintiff and Goodwin was one that the company might, if it chose, ratify and take the benefit of, it did not apparently do so. It is found upon the request of the defendants, that the security is not charged to plaintiff upon the books of the company. This would seem to indicate that the company did not regard itself as interested in the matter, but considered the transaction as entirely a matter between the plaintiff and defendants. An inference to this effect is warranted by the evidence.

We are of the opinion that the evidence justifies the conclusion that as between the plaintiff and the company the plaintiff was the owner of the security.

The only other question of fact, important to be considered, is whether the referee erred in refusing to find that the defendants after receiving the Werner mortgage, and prior to September 5, 1891, made advances to the Trust company upon the faith of this mortgage, and in the belief that the company owned it.

It is admitted that on the 5th September and before the defendants in fact received the proceeds of the sale, they were distinctly notified by the plaintiff that he owned the mortgage. The plaintiff testifies that on or about the 1st of July, he told one of the defendants that he owned the mortgage and demanded its return or pay for it. On the 13th June, the plaintiff wrote the defendants asking them to accept his draft on them for the amount of it. On the 16th June, they wrote the plaintiff declining to accept the draft on the ground that the mortgage was not sold. It is very clear that from the start the defendants knew or had good reason to believe that the plaintiff claimed the entire proceeds of the mortgage and that he insisted on his claim unless the company would in effect pay him. If so, the defendants are not in a position to say that that they in good faith made advances in ignorance of plaintiff’s rights. Whether the plaintiff ever in effect gave up this claim and agreed to look only to the company for re-imbursement, or induced the defendants to believe that he had, or whether the defendants ever in good faith made any advances on such belief, were at least questions of facts. We are not persuaded that the action of the referee upon the requests on the subject is against the evidence. It is to be observed that in the answer no advances are claimed.

Our attention is called to a number of exceptions to the admission or rejection of evidence but we find no material error. A letter from plaintiff to defendants, dated September 12, 1891, was received in evidence. This was in answer to a letter of defendants to plaintiff, dated September 11, and was a part of the correspondence between the parties in relation to the subject in controversy. The error, if any, in receiving evidence of what the books of the trust company showed as to the state of the account between the defendants and. the company, was cured by the finding of the referee that the balance of the account was as testified to by the defendants. A letter from the company to defendants, dated September 21, 1891, was received in evidence. This was in answer to the report which the defendants made to the company of the sale and credit of the Werner mortgage. The defendants claimed, as against plaintiff, some rights by reason of the transaction between the defendants and the company, as to such report and sale. The letter of the company was a part of such transaction. The letter of September 22, 1891, was a continuation of the same matter, and contains nothing material. The letter of October 3, 1891, from the company to plaintiff, if not strictly competent, was harmless. It states the position of the company substantially as it was'stated in the letter of the company to defendants, of September 21. The report of the plaintiff to the company, of April 5,1891, was properly received. An issue at that stage of the case, had been raised as to whether the plaintiff had settled with the company in regard to the transaction about April 1. It was proper to show the report made, as a part of that transaction.

The letter of the company to defendant, of date July 6, 1891, offered by the defendants and excluded, was not communicated to the plaintiff. Nor, according to the evidence of the defendant Bull, did the plaintiff agree to leave to the company the question, of reporting the Werner mortgage, which is the matter discussed in the letter. Besides, it cannot very well be said to be material in view of the fact that in a letter written by the company on July 28, and put in evidence by defendants, the company say they have never fully understood the situation with reference to the Werner mortgage. The letter from the company to defendants, dated August 11, 1891, was offered only for the purpose of showing that the company received the requests of the defendants, to have the Werner mortgage credited to plaintiff, and assented to it. The letter of defendants to the company, which contained such requests, if any, was in evidence and showed what the request was. It was shown to have been sent to the company, and answered. The answer which the defendants offered was never communicated to the plaintiff. Besides it did not assent to the credit, to plaintiff, of the mortgage, and the uncontradicted evidence is that the plaintiff was never credited with it.

The question was asked the defendant, Bull, whether in case of transfer of securities from one agent to another, in the course of' the business of the company, it was the uniform custom for the-agent receiving the security from another agent, to report direct to-the home office and not to the agent from whom he received it. This, upon objection of plaintiff, was excluded. The course of business, however, between the plaintiff and the defendants, on the subject, was fully gone into. The issue in the case was not. how the business of the company was done, but whether the-transaction in question in reality ever was the business of the company. The custom, therefore, as to company affairs, was not important. Besides, the plaintiff himself, in his testimony previously given, had stated that it was customary in case of transfers from one agent to another, for the agent who made the sale to report direct to the company whenever the property belonged to the company. This gave the defendants all they" could reasonably ask on the subject. The exclusion of the report in the form of an account rendered by defendants to the company, was not important, as the substance fully appeared in the case.

Upon an examination of the whole case, we are satisfied that no-error prejudicial to the defendants’ rights was committed in the rulings upon evidence. Mc Gean v. Manhattan R. Co., 117 N. Y., 219; 27 St. Rep., 337.

The judgment should be affirmed.

Hardin, P. J. and Martin, J., concur.

Judgment affirmed, with costs.


author: Mayham, P. J.

text:
    The People ex rel., Jacob Dreicer, Resp’t v. Isaac Y. Ouderkirk et al., as Assessors, etc., et al., App’lts.

      (Supreme Court, General Term,, Third Department,

      Filed February, 1894.)

    1. Certiorari—Return.
    Where the assessment roll has been filed in the town clerk’s office, the assessors can obey the writ of certiorari by returning sworn or certified copies thereof.
    2. Same—Tender of Payment of Fees.
    The tender or payment of fees therefore is a condition precedent, which, must be complied with before a return can be compelled by mandamus.
    3. Same.
    This rule applies to public bodies or officers as well as to individuals.
    Appeal from an order of a special term commanding the defendants’ as town officers to make and file a return to a writ of certiorari without the payment or tender of their fees for making the same.

      Edgar T. Brackett for app’lts; A. W. Shepard for resp’t.
   Mayham, P. J.

The assessment roll which the relator by his certiorari desired to bring up for review, was at the time of granting of the writ, filed pursuant to law, in the town clerk’s office from which the defendants’ could not legally withdraw the same. But they could obey the writ by returning sworn or certified copies thereof. Winegard v. Kromer, 5 Misc. Report 54.

Such a return would however impose upon the defendants’ the labor and expense of making or procuring copies of the assessment roll.

Section 2005 of the Code of Civil Procedure requires a person upon whom a writ of certiorari is served, upon payment or tender of the fees allowed by law, to make a return. The tender or payment of fees for copies of papers required to be returned seems to be a condition precedent which must be complied with before a party can be compelled by mandamus to make such return.

This rule applies to public bodies, or officers as well as individuals. Accordingly this court held that a board of supervisors whose acts in refusing to allow a sheriff’s bill were sought to be reviewed on certiorari, could not be compelled to return their action, "and the bill presented to them for audit, until the fees for making such return was paid.

People ex rel., Sutliff v. Board of Supervisors of Fulton county, 64 Hun 375; 46 St. Rep., 470. This case is in principle like the case at bar, and we think decisive of it. The order must be reversed with ten dollars ($10.00) costs and printing disbursements.

All concur.


text:
    The People ex rel. James C. Fargo, as President, etc., App’lt. v. Simon W. Rosendale, Attorney-General, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed Feb'y, 1894.)

    1. Costs—Game Law.
    Where costs are awarded to defendant, under chap. 488 of laws of 1892, they should be awarded against the people and payment thereof enforced under the provisions of section 3241 of the Code.
    2. Same—Mandamus.
    Mandamus is the proper remedy for the relator to compel the attorney-general to attach his certificate to the certified judgment for such costs.

      Appeal from an order of the special term, denying relator’s application for a writ of peremptory mandamus.

      Frank Hasbrouck, for app’lt.; John W. Hogan, for resp’t.
   Mayham, P. J.

The principal question to be determined on this appeal is whether the actions prosecuted in the name of the people of the state under the direction of the chief game protector thereof, to recover penalties for violation of the provisions of section 46 of chapter 488 of the Laws of 1892, were actions prosecuted for the benefit of the county in which the wild game, charged to have been illegally transported by the relator, was captured ; or for the benefit of the state in whose name the actions were prosecuted, and into whose treasury the penalties if recovered were to be paid.

If for the benefit of the former, the costs awarded in favor of the relator should be charged under the provisions of section 8243 against the county of Herkimer, where the game in these cases was captured; but if for the benefit of the state, then the costs should be awarded against the people of the state, and the payment of the same enforced under the provisions of section 3241 of the Code of Civil Procedure.

Prior to the enactment of chapter 488 of the Laws of 1892 most, if not all, of the legislation for the protection of game and fish in the state was of a local character, with the powers and duties imposed and conferred for their enforcement upon local officers, and boards acting in towns and counties, and the penalties for the violation of such laws, were given some portions, to the informer, and the balance to the county in which the action was brought. By section 33 of the Laws of 1879, district attorneys were required to prosecute for penalties for violation of the game laws, and one-half of the penalty belonged to the informer, and the other half was required to be paid to the treasurer of the county in which the action was brought.

This chapter confers jurisdiction upon courts of special sessions of towns to try all actions for penalties, and directs the payment of the fines and penalties so collected to the county treasurer of the county where the offense was committed, and makes it the duty of all sheriffs, constables and game constables to arrest for violations of such act.

The same chapter confers jurisdiction upon the boards of supervisors of the state,, except in the" counties therein expressly excepted, to appoint game constables, who were authorized to prosecute for penalties under the game laws and made their compensation for such services a charge against the county. Chapter 591 of the Laws of 1880, authorized the governor to appoint eight game and fish protectors, who were authorized to prosecute actions in the name of the people for violations of the game laws of the state; and district attorneys of counties were, on request of of the game protectors, to prosecute for penalties, and the moneys collected in such prosecutions, except costs which belonged to the district attorney were required to be paid to the county treasurer of the county in which the actions were prosecuted, and after re-imbursing the county for all expenses incurred by it in the prosecution and collection of the penalty the treasurer is required to pay the balance to the state treasurer.

Under the provisions of these statutes the penalties seem to be recovered to the use of the county where the actions are prosecuted so far at least as to re-imburse the counties for all expenses in their collection and in most cases for the absolute benefit of the county.

The case of the People v. Alden, 112 N. Y., 117; 20 St. Rep., 496, which was relied upon by the learned justice at special term in deciding this motion was decided under the provisions of chapter 534 of Laws of 1879 as amended by chapter 531 of the Laws of 1880.

By section 277 of chapter 488 of the Laws of 1892, chapter 534 of the Laws of 1879 above referred to was repealed, and all actions prosecuted after the 5th of May, 1892, must be governed by chapter 488 above referred to. Section 230 of that act provides that “ All penalties imposed by this chapter may be sued for and recovered in the name of the people of the state of íTew York." Section 238 of this chapter provides that the penalties recovered shall be paid to the board of commissioners, and be disbursed by it, as provided in that act. Section 240 provides that one half of the penalties shall be paid to the protector or special protector upon whose information the action shall be brought, and section 241 that the remaining money received by the board of commissioners shall be applied to the payment of expenses of actions for violations of the game laws, on the certificate of the chief protector.

It will be seen that none of the penalties recovered for violations of the provisions of the game laws goes into the county treasury of the county either where the action is prosecuted or where the offense was committed by the capture or destruction of the fish or game, the capture or destruction of which is made a penal offense under the act, and it would seem to follow that a decision of the court under the former acts would not necessarily control in the interpretation of the provisions of chapter 488 of the Laws of 1892.

It is true that in People v. Alden, (supra), Judge Andrews uses this language : “ But we think the action was brought for the county of Warren within section 3243 of the Code, whether brought upon the information of the state game protector or some other person. The statute, as we have said that the protection of game and the enforcement of the game laws, is a county interest. It imposes upon county officers the duty of bringing actions. It requires the county treasurer to advance from the county funds the necessary sums for disbursements and expenses.

“ Whether the county is pecuniarily benefited or not by the recovery, a county interest is thereby protected.”

The court in that case held that the county should pay the costs to the defendant on his recovery. But it will be remembered that the law under which that action was prosecuted required that the penalty in the first instance went into the county treasury for the express purpose of indemnifying the county against all costs and expenses, while in this, as we have seen, no. part of the proceeds of the litigation, if successful,could by any possibility reach the county treasury either of the county in which the game was killed, or any of the counties through which it was. alleged it was carried by the defendant.

The facts of this case are not, therefore, like those in People v. Alden, (supra), and the law under which this action is prosecuted is in many respects as we have seen, different from that under which that case was decided.

The penalty was not given for the benefit of any one county. Nor can any one county be regarded as solely and directly benefited by the prosecution of the action. The case does not, therefore come within the provisions of § 3243 of the Code of Civil Procedure, so as to authorize the collection of their costs out of the county in which this game was captured or any of the counties through which it passed, and while, as was held in the case of People v. Alden, 112 N. Y., 121; 20 St. Rep., 496, that the defendant is entitled to his costs, there seems to be no way open to the defendant for the recovery of the same except, that furnished by § 3241 of the Code.

The judgment certified by the clerk to which the certificate of the attorney general, is desired imports on its face absolute verity, and the certification of the same by the attorney general, is in no sense a judicial, but is purely a ministerial act; and it is quite unlike that required of the attorney general in perfecting the charter of an insurance corporation, and no point is made that a mandamus is not the proper remedy for the relator.

The order of the special term must be reversed and a peremptory writ of mandamus awarded with costs and disbursements in favor of the relator.

All concur.


text:
    Isaac McConihe, App’lt, v. Charles Palmer, as Sheriff, etc., Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed February, 1894.)

    1. Trial—Affidavit of Merit.
    Any defeat in the technical requirements of an affidavit of merits is cured, if the other affidavits in the case show a defense on the merits.
    2. Appeal—Discretionary Order.
    Order, changing the place of trial for convenience of witnesses, will not be reversed on appeal to general term, unless it clearly appears that there has been an abuse of discretion, or the special term has erred in coming to its conclusion.
    Appeal from an order of the special term changing the place of trial from the of Rensselaer to the county of Fulton.

      Warren McConihe, for app’lt; Ciarle L. Jordan, for resp’t.
   Mayham, P. J.

The summons and complaint in this action show upon their face that the action is prosecuted against a public officer for an alleged omission to perform an official duty as sheriff of Fulton county.

It was therefore a local action, and within the language of Section 983 of Code of Civil Procedure “ must be tried in the county where the cause of action arose,” unless the defendant has by some act or omission on his part forfeited his right to insist upon that provision of the Code.

It is true that notwithstanding this apparently mandatory provision, the action may if the county designated in the summons and complaint is not the proper county, be tried therein unless the place of trial is changed to the proper county upon a demand of the defendant followed by a consent of the plaintiff or the order of the court.

In this case,the defendant omitted to serve a demand on the plaintiff for a change of the place of trial, but that we apprehend did not deprive the court of the power when applied to, to change the place of trial to the proper county. Section 987 of the Code of Civil Procedure provides that the court may, by order,change the place of trial in either of the following cases.

1st. When the county designated for the purpose in the complaint, is not the proper county.”

It is insisted by the plaintiff that the defendant has waived his right to ask the court to change the place of trial to the proper county, by failing to serve either before, or with the answer a demand for the trial in the proper connty, as required by Section 986 of the code. But it seems that that section is directory only and not mandatory, and the court may, when satisfactory reason is presented, dispense with the making of such demand, and change the place of trial to the proper county, although no demand was made as required by that section, and after the time fixed therein for such demand, providing the motion is made with reasonable diligence. Clark v. Campbell, 54 How. 166; Gifford v. Town of Gravesend, 8 Abb. N. C. 246; Darragh v. McKim, 2 Hun, 337. See Thompson v. Heidenrich, 66 How. 391.

Although none of the cases cited discuss the precise question of the effect of a neglect to serve a demand for a change of the place of trial when the action is local, yet, they clearly recognize the power of the court to change the place of trial in that class of cases even when the defendant has failed to comply strictly with all the provisions of the Code, upon this subject so long as the plaintiff has not suffered by such failure.

In the case at bar we think, the special term might fairly have regarded the stipulations between the parties relating to this action, as a waiver by the plaintiff, of a strict compliance with all the provisions of the statute, and a consent that the action might be heard upon its merits.

It is also insisted that the defendant’s affidavits of merits on this action is defective. There would be force in this objection, if the defendant’s papers, outside of the technical affidavits of merits, did not upon their face disclose a meritorious defence.

But we think enough appears upon the face of the defendant’s papers if established by proof, and not explained away by the plaintiff, to amount to a defense upon the merits, and that any defect in the technical requirements of an affidavit of merits, is cured by the other affidavits in the case.

The motion was therefore properly granted on the ground that this being a local action and not brought in the proper county, the court might properly order it tried in the proper county on this motion. But the motion in this case was also made on the ground of the convenience of witnesses, and upon that aspect of tiiis motion, we think the special term decision must be sustained.

Motions to change the place of trial for the convenience of witnesses are largely in the discretion of the special term, and its determination of such motions will not be reversed on appeal, unless it clearly appears that there was an abuse of that discretion, or that the court erred in coming to the conclusion it did. Lane v. Town of Hancock, 29 St. Rep., 635; Schmidt v. Rochester Lithograph & Printing Co., 31 St. Rep., 258. We see no reason for the reversal of this order on either of these grounds.

Several objections are embodied in the order and urged as a reason of reversal, but we think, on the whole, sufficient was considered by the learned judge at 'special term, to enable him to reach a correct conclusion, and that his determination should be sustained.

Order affirmed with $10 costs of this motion and printing disbursements.

Putnam, J., concurs in result; Herrick, J., not acting.


text:
    Anna C. Gilbert, Resp’t v. William H. Taylor, Impleaded, etc., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February, 1894.)

    1. Legacy—When residuary legatee liable therbeor.
    Where the residuary legatee has taken possession of the estate under the will, he takes the same cum onere and is liable to the general legatees for the payment of their legacies to the extent of the estate received by him.
    2. Same—Action.
    In such case, a proper action, if brought within the proper time, may be maintained, therefor.
    3. Same—Limitation.
    An action for a legacy, given from and after the decease of another person, does not accrue until the determination of such life estate.
    Appeal by the defendant, William H. Taylor, from a judgment in favor of the plaintiff, on the report of a referee.

      L. & J. M. Lawson (I. Lawson of counsel) for app’lt; H. S. McCall, Jr., (Hamilton Harris of counsel) for resp’t.
   Mayham, P. J.

The last will and testament of William H. Taylor, father of this appellant, William H. Taylor, was duly proved and admitted to probate as a will of real and personal property, on the 6th of March, 1873. In and by his will the testator nominated and appointed Walter Dixon, Benjamin Y. Z. Wemple, Charles P. Staats, Charles Winne and Thomas B. Morrow, as executors and trustees of the same.

After several bequests of considerable amounts to various persons therein named, the will contained the following provisions, out of which the controversy in this action mainly arises.

“ Eighth : I will, devise and bequeath to Mrs. James Dixon, my much respected mother-in-law, the income, interest and profit of the sum of ten thousand dollars, for and during her natural life, payable as my executors may see fit, from and after my decease, and at her death, said sum of ten thousand dollars, I will, devise and bequeath to my sister, Anna C. Taylor.’’

“ Ninth : All the rest, residue, and remainder of my estate, I will, devise and bequeath to my son, William H. Taylor, Jr., but in case he dies before he arrives at the age of twenty-one years, I then, and in that case, will and devise the same as follows, namely, one-half thereof to my sisters, Anna 0. Taylor and E. E„ Taylor; and the other half thereof, to my nephews and nieces.”

Anna G. Taylor, the legatee named in the eighth clause of this will, is now Anna G- Gilbert, the plaintiff and respondent in this action and appeal.

The testator in and by his will, committed the guardianship of the defendant to Mrs. James Dixon during her life, and after her death to this plaintiff. On the 15th day of April, 1876, on the petition of Mrs. James Dixon, with the consent of this plaintiff, Edway L. Taylor, was by an order of the supreme court appointed as general guardian of the defendant, William H. Taylor, to act in conjunction with Mrs. James Dixon, the testamentary guardian, upon his executing to said William H. Taylor a bond with sufficient sureties in the sum of fifty thousand dollars, conditioned for the faithful performance of his trust, who qualified as such guardian.

The referee finds that under and in pursuance of a decree of this court made on the 25th of November, 1876, the executors named in the will of William H. Taylor, deceased, paid . over to Edway A. Taylor and Margaret Dixon, as guardian of the defendant, a large amount of personal property, and the avails of personal property, amounting to more than two hundred thousand dollars, and that after the defendant, William H. Taylor, arrived at the age of twenty-one years he received more than one hundred thousand dollars belonging to the estate of William H. Taylor, his deceased father.

The referee also finds as we think upon sufficient evidence that under and by virtue of the proceedings instituted by the guardians against the executors of the will of William H. Taylor, deceased, a final accounting was had by the executors, under and by virtue of which all the rights vested in the executors by said will.were transferred to and vested in the guardians, and that under and by virtue of the judgment and decree in the action by the defendant, William H. Taylor, against the surviving guardian, Edway Taylor, it was adjudged that all the personal estate of the testator remaining in the hands of the guardian had been previously transferred to the defendant, William H. Taylor, except as to which judgment had been rendered in favor of the defendant against such guardian.

The case also shows that the guardian had, under the decree of the court, conveyed to the defendant, William H. Taylor, all the real estate of the testator held by them in trust under the will.

It is quite apparent from this entire case that a large amount of this estate was not realized by the beneficiaries in this will, but that sufficient came to the hands of the defendant, William H. Taylor, as residuary legatee to pay the amount of the legacy to this plaintiff, after the death of Mrs. Dixon, and the principal question on this appeal is whether the plaintiff must look to the trustees and executors for the payment of the legacy bequeathed to her after the death of Mrs. Dixon; or can have recourse to the residuary legafee for the payment of the same.

'All the real estate of the testator was under the decree of this court, made on the 9th day of August, 1881, transferred by a referee in partition to the defendant, William H. Taylor, and all the money which came into the hands of the referee by the sale of the real estate of the firm of Taylor & Son, in which testator had an interest was paid by said referee to the general and testamentary guardians of such defendant.

It thus appears that the estate of the testator remaining in the hands of the executors and trustees, as well as the proceeds of the real estate sold in partition, passed into the hands of the guardians of the defendant, and by the judgment recovered by him against the surviving guardian, passed into the hands of the defendant, William H. Taylor, after he became of age, on the 16th day of May, 1890.

This property, therefore, came to his possession and was received by him under and subject to the provisions of the will of his father, one of which was, that this plaintiff, on the death of Margaret Dixon, was to be paid the legacy of ten thousand dollars, the use of which was by the will to be paid to Mrs. Dixon during her life. Mrs. Dixon who had been paid the annual interest on this legacy for most if not all of the time from the death of the testator until the time of her death, died in November, 1889, at which time the plaintiff became entitled to receive this legacy under the will.

It is quite clear that the plaintiff was powerless to enforce this legacy against the trustees or executors of the testator, so long as it remained in their hands, charged with the payment of the interest to Mrs. Dixon, and it appears in the chronological order of events that this property had by the decree of this court vested in the guardians of the defendant William H. Taylor, long before the death of Mrs. Dixon. There was no gift of this legacy to the plaintiff until the death of Mrs. Dixon. If the plaintiff had died before the happening of that event, this legacy would, we think, have lapsed on the death of Mrs. Dixon. Patterson v. Ellis, 11 Wend., 260; Both v. Cornell, 2 Redf, 261; Loder v. Hatfield, 71 N. Y., 92.

It is insisted by the appellant that as there was n,o deficiency of assets which came to 'the hands of the executors to pay all the legacies, at the time they took possession of the estate, that the payment of all of the remainder of the estate to the defendant William H. Taylor, after a large portion had been lost by the executors, gave no right to the plaintiff to receive the legacy bequeathed to her, of William H. Taylor," on the ground that when a part of the estate has been received by a legatee under a will, and the remainder thereof has been squandered by the executors, so that they are unable to pay the other legatees in full, such legatees have no recourse to the legatee who has been paid for contribution, and in support of this doctrine we are referred to numerous authorities.

While the principle contended for is sound and as we think of universal application as between legatees, to whom general legacies have been bequeathed, we do not think it applies between a general legatee and the residuary legatee under a will.

The residuary legatee takes only what is left after all other legacies given by the will have been paid. Such legacies are a charge upon the entire estate of the testator, and where the residuary legatee has taken possession of the estate under the will, he takes the same cum onere and is liable to the general legatees for the payment of their legacies to the extent of the estate received by him. As against the legacy to the plaintiff the residuary legatee took no title to the $10,000 bequeathed to her under the will. And as there was no other fund not disposed of, which was available to the plaintiff for the payment of Her legacy at the time the title to it vested in her, the defendant who at that time was in possession under the decree of the court, of all the property remaining of the estate of the testator, must be deemed as holding it either in trust for her use and benefit or as administrator de son tort; because he could get no absolute title to the same under the will as residuary legatee, until, as we have seen, all the general legacies were paid.

In Wetmore v. St. Luke's Hospital, 56 Hun, 318; 31 St. Rep., 334, Van Brant, judge, in delivering the opinion of the court, uses this language: “In order that there should be a residuary estate the provisions of the will must be fulfilled and something must be left over. Debts and legacies must be paid, and then the residuum goes to the residuary .legatee. But until debts and legacies are paid it isdifficult to see how, under the residuary clause residuary legatees are entitled to receive anything.”

This defendant, therefore, having retained $10,000 of the testator’s estate which belonged to the plaintiff under the will, must satisfy this legacy before he can hold the estate as residuary legatee, and no good reason is perceived why, in a proper action, if prosecuted by the plaintiff against him, within the proper time, cannot be maintained.

But the defendant insists that this claim is barred by the statute of limitation. If we are right in holding that the plaintiff’s title to this bequest did not attach until the expiration of this life interest of Mrs. Dixon, then no right of action existed in her to compel the executors to pay this legacy before the decree of the court transferred the property from them to the guardians. Nor did right of action accrue to her until the time of the death of Mrs. Dixon and the consequent termination of her life estate which was in November, 1889, as this action appears to have been commenced by the service of a summons on the 10th day of February, 1892, it is not, therefore, barred by the statute of limitation.

It is also insisted by the appellant that the complaint, does not state such a cause of action as will sustain the recovering in this case. We think the complaint states a good cause of action and is sustained by the proof. No objection is raised by the answer to the joinder of the defendant, Ed way Taylor, as guardian ; and the complaint alleges the bequest to the plaintiff its non-payment, and that all of the estate of testator was in the hands of the residuary legatee and his guardian, and demands judgment for the amount of the legacy and interest from the time of the vesting of the title to the same in the plaintiff.

Under the complaint and upon the proof the referee found that the defendant' as residuary legatee, had received more than $10,000 of the testator’s estate and that the same was chargeable with the payment of this legacy. We think the complaint sufficient to authorize the proof upon that point, and that the findings are supported by the evidence.

The judgment must be affirmed with costs.

Putnam, J., concurs; Herrick, J., not acting.


author: Gray, J.

text:
    Samuel L. Knight, as President, etc., App’lt, v. Sackett & Wilhelms Lithographing Company, Resp’t.

      (Court of Appeals,

      Filed February, 1894.)

    1. Conversion—When not lie.
    An action for conversion will not lie, where the right of property to lithographic stones is in the defendant, and the right to the impressions put upon them is in the plaintiff.
    3. Same—Title.
    An agreement that a lithographic company should make engravings upon its stones for plaintiff, from designs to be furnished, at a stipulated price for each, and that colored plates should be made from them, when requested, at agreed rates, is simply one for the performance of services in the making and transferring of lithographic engravings, and conveys no title to the stones to the plaintiff.
    Appeal from order of the General Term of the New York Superior Court affirming a judgment entered by direction of Judge Me A.dam, dismissing the plaintiff’s complaint.

      William 0. Campbell, for app’lt; Artemas B. Smith, for resp’t.

       Affirming 46 St. Rep. 866.

   Gray, J.

The plaintiff brought this action to recover damages of the defendant for an alleged wrongful conversion of certain personal property, consisting in lithographic drawings or engravings. Upon the trial the complaint was dismissed upon the plaintiff’s case. According to his evidence, being desirous to obtain lithographic engravings for use upon covers of writing tablets, he made an oral agreement with the Hatch Lithographic Company that the company should make engravings upon stones for him, from designs to be furnished at a. stipulated price for each engraving, and that colored prints should be made therefrom when requested, at agreed rates. He testified that it was. their agreement that the ownership of the engravings should be in him and of the stones in the Hatch Company, and that the duration of the agreement was not fixed. It was admitted that the plaintiff had paid bills for the labor of engraving the stones. Chattel mortgages were given by the Hatch Company upon its properties, and, under foreclosure, these stones were sold, and ultimately came into the possession of the defendant, which refused to deliver them to the plaintiff when he tendered the mere value of the stones themselves.

The dismissal of the complaint, on the plaintiff’s showing, was undoubtedly right, for he failed to show that he had any property in, or any right to, the possession of these stone at any time. He never had any interest in the stones except under his contract with she Hatch Company; which gave him the right to have imprestions or prints made from them. It is true that he had paid for the labor of engraving them; but it is very clear from his evidence that, by the agreement into which he entered with the lithographing company, the ownership of the stones continued in the company and that he was only to have his printing done at so much per thousand sheets. The contract between him and the Hatch Company was one which bound the latter to render its skilled services and which secured to it a fixed compensation. The appellant suggests that the transaction came under a head of bailments known as locaiio opens faciendi; but that would only have been the case if the plaintiff had furnished the stones and hacl employed the lithographers to do the engraving upon them. The learned trial judge thought that a tenancy in common of the stones had been created, and his dismissal of the complaint was upon the ground that trover or conversion would not lie, unless the plaintiff could claim as sole owner. But we do not think that the contract testified to made out an ownership in common. Ownership may rest upon agreement; but no inference can be drawn from the plaintiff’s version of the transaction that the Hatch Company had agreed that the stones, as engraved, should be owned in common. The evidence was that the stones were to belong to the Hatch Company, and that it was not to print from them for anybody else. The plaintiff says: “ These designs were to be held upon the stones for me for no purpose whatever except to do my printing as I might order it; that is all. That is the reason they were to be kept upon the stones for me.” Taking the plaintiff’s statement of the transaction, it is plain that the Hatch Company had bound itself to hold, and to print from, these particular designs (the ownership of which seems to have been secured to the plaintiS in part, if not wholly, by copyright) whenever ordered by, and solely for, the plaintiff at stipulated rates. This agreement, in its exclusive features, rested upon the consideration of what plaintiff was to pay at once towards the expense of doing the work of engraving, and upon the profits to be derived from the business to be given thereafter.

The agreement negatives the idea of any ownership in plaintiff of these stones, by the nature of its requirement of services to be rendered and from the absence of any claim to own the stones themselves. Nor was there any confusion, or an admixture of any property of the plaintiff with, or in, the property of the Hatch Company. The agreement testified to, again, negatives that idea. To that agreement plaintiff could hold the company, and if, by parting with the stones, is disabled itself from performing its agreement, it exposed itself to an action for its breach. In such an event, however, no rights of the plaintiff would attach to and follow the stones into the hands of strangers, other than, at furthest, such as equity might recognize. It is quite possible that such an agreement would be recognized and protected in a court of equity and that relief might be obtained by injunction or otherwise, if necessary to protect the plaintiff’s rights against an improper use or a destruction of the lithographs. But it is not necessary or proper to decide the question here, and upon such proofs, whether the defendant acquired any greater or other rights to the use of these engraved stones than were possessed by the Hatch Company. Nor does it appear that the defendant refuses to carry out the agreement made with the Hatch Company. So far as it appears, the defendant may be quite willing to carry out the original agreement and to print for the plaintiff at the rates stipulated for with the Hatch Company. However that may be, we hold that this plaintiff never- had any title to, or any right to the possession of, these stones; and that the agreement, which he testified to, was one, simply, for the performance of services in the making and the transferring of lithographic engravings. In any view of the case, it is impossible to see how the plaintiff could allege that there had been any wrongful conversion of his property by the defendant, and the judgment appealed from should be affirmed, with costs.

All concur (Bartlett, J., is of opinion that Hatch Company and plaintiff were, under the contract, tenants in common of the stones and engravings thereon, but concurs on ground that plaintiff invoked an improper remedy).

Judgment affirmed.


text:
    Wilfred F. Mills, App’lt, v. Edmund T. Smith, as Executor, etc., Resp’t.

      (Court of Appeals,

      Filed February 9, 1894.)

    Executor, etc.—Devastavit. '
    Where the loss of a testamentary fund is caused by the waste or misconduct of the executor and trustee, no claim for contribution arises against the residuary legatees, in the absence of proof of any conversion or combination on their part whereby the trust fund was affected or divested.
    Appeal from judgment of the general term of the supreme court in the first judicial department, entered upon an order made Jane 29, 1892, which affirmed, a judgment in favor of defendant entered upon a decision of the court on trial at special term.
    The nature of the action and the facts, so far as material, are set forth in the opinion.

      George H. Ilart, for app’lt; Fred. W. Iiinrichs, for resp’t.

       Affirming 47 St. Rep., 274.

   Gray, J.

Willian Wickham Mills, by his will, gave to his executors the sum $20,000, in trust “to loan the same on bond and mortgage upon real estate and to apply the net income thereof, at their discretion, to and for the use of his son, Theodore Mills, during his natural life, and, upon his decease, to divide, etc., etc., among the children of said Theodore, etc.” Testator died in January, 1865. The plaintiff, the sole surviving child of testator’s son, Theodore, was born in November, 1865. The will was admitted to probate in January, 1865, and letters testamentary were issued to the persons named as executors, to wit: To Eliza A. Mills, testator’s widow, and to Washington Mills and William W. Mills, two of testator’s sons. Theodore, the plaintiff’s father, died in January, 1886. Plaintiff, upon attaining his majority in November, 1886, demanded of William W. Mills, the then sole surviving executor of the testator, the fund given in trust for his father, Theodore Mills; but the executor was unable to respond to plaintiff’s demand and, as it appears, was insolvent. Plaintiff then brought this action; making the residuary legatees under the testator’s will, or their legal representatives, parties defendants. His complaint is based upon various charges of unlawful conduct and fraudulent acts by the defendants and others of testator’s children, since deceased, in matters connected with the administration of the testator’s estate. Those relating to the admission of the testator’s will to probate aud to the appraisement of the testator’s property are unnecessary to consider. He charged that the defendants unlawfully contrived to prevent the legacy bequeathed to the plaintiff from being discharged by the surrogate and from being invested upon bond and mortgage, as required by the will; that they unlawfully caused the surrogate to settle the accounts of the testator’s executors, with the effect of defrauding the plaintiff out of his legacy; that the executors failed to appropriate and to invest the sum of $20,000, as provided by the said will, and, finally, that they, with intent to defraud the plaintiff, unlawfully combining together, distributed all of the testator’s estate among themselves, in disregard of the plaintiff’s rights. Resting upon these charges, the plaintiff claims to be entitled to compel the residuary legatees to account as for moneys fraudulently appropriated- and distributed to them and to have them satisfy his claim to the trust fund of $20,000 thereout. Upon the trial, proof was given of certain proceedings, which took place after testator’s death, with reference to the probate of his will, to the appraisement of his estate and to settlements of his executor’s accounts. Beyond that documentary proof, the only other evidence was in the testimony of the defendant William W. Mills, the sole surviving executor. The trial judge found as facts, that at the time of accounting by the executors and of the surrogate’s decree thereupon, the trust fund of $20,000, invested in bonds, secured by mortgages, as required by the will, was in the hands of the executors and held in trust by them; that no part of the same was ever paid to the residuary legatees; that there was no evidence assailing the correctness of the accounts, or to show any conspiracy, combination, or consent to defraud the plaintiff, or to misapply the trust fund. Upon such and other findings the trial judge dismissed the complaint, and his conclusions have been sustained by the General Term. We think the learned judge could have come to no other conclusion upon the proofs. There is not a particle of evidence to sustain any of the allegations of fraudulent conduct in the residuary legatees, or to show any diversion of the trust funds into their hands. This action is simply an attempt to fasten upon the distributees of testator’s residuary estate the responsibility for the subsequent default of the executors, as trustees for plaintiff’s father. That cannot be done. Where the loss of a fund is due to the waste, or misconduct, of the executor and trustee, he and his estate alone can be looked to. No claim for contributions arises against residuary legatees in such a case. They are liable to refund in a case where, having •been paid from the estate, it is discovered that there is a deficiency of assets for distribution under the will, - caused by the diminution of the estate through the premature payment of legacies.

It may be perfectly true when, in 1871 and 1872, proceedings were had for an accounting by the executors, which resulted in a decree of adjustment and distribution, that the plaintiff and his father should have been cited to appear and that, for the want of such citation, or of an appearance, the proceedings and decree as to them were irregular and of no binding force. But admitting to the fullest extent the plaintiff’s rights to complain of that defect, that fact, however otherwise available against the executors, does not furnish any support for the present action. If there was the omission to cite his father, or him, or to cause his appearance by guardian, it may have been a serious irregularity; but it, in no wise, furnishes any basis for imputing to the residuary legatees any fraudulent intention. They were not called upon to verify the regularity of the procedure and nothing connects them with a purpose to deceive plaintiff and his father, with respect to the accounting. In the accounts filed upon that accounting, it was shown that bonds and mortgages, representing in the aggregate the amount of $20,000, and particularly described, were held as a trust fund for Theodore Mills, plaintiff’s father. The accounts of the executors were verified and were made the subjects of objections. Testimony was taken before the surrogate at some length. In the decree of the surrogate, as rendered upon that accounting, the executors are credited with the amount of the trust fund, as set apart for Theodore Mills. Neither in that proceeding for an accounting, nor in anything previously done between the executors and the parties interested in the estate, does anything appear which, in the slightest degree, tended to prove any collusion or conspiracy to injure the plaintiff or his father. To the contrary of any theory of a combination between the executors and the legatees, there is evidence to show that the former were held strictly to the performance of their duties. When we come to consider the evidence given by the surviving executor, at the trial, upon his examination bv the plaintiff’s counsel, we find him testifying that he received the mortgages and securities that were set aside for the trust fund by him for Theodore Mills ; that he and his brother took them out of the safe and that his brother, Washington Mills, the deceased executor, then took charge of them. He does not explain what became of them; simply saying that he never did anything with them thereafter and never had any control over them. The inference of a devastavit is, of course, plainly deducible. All the evidence in the case goes fairly to prove that the trust fund, created for the plaintiff’s father, was invested, held and set apart by the executors and existed in that condition at the time of the rendition of the surrogate’s decree. That being the proof, the plaintiff cannot be heard, as against the residuary legatees, who received their portions of the estate, pursuant to this decree, to say that, for the irregularity in the accounting proceedings, the distribution of the estate to them was wholly invalid and null and that they should refund sufficient to make good to him the amount of the lost trust fund. That result does not follow upon any such proof. The question, in which the plaintiff was interested, concerned the trust fund and when that is found to have been set apart and held by the executors out of the estate, it is no concern of his how the distribution was made of the rest of the estate to the residuary legatees. He is remitted to his remedy against the executor or trustee, and for any breach of duty or of trust on his part he is without any claim against the distributees of this estate. It is unquestionably essential to the security of the executor that, upon a judicial settlement of his accounts, all parties interested in the estate and entitled to be heard, should be cited, and that all the proceedings shall be conducted, in material matters, as required by law. But with respect to payments made by an executor to legatee, regarded as advances, or without a decree authorizing them, they take without other risk than such as may arise by reason of insufficiency of assets to discharge prior claims, or to pay other legatees with equal rights, when such payments are duly and regularly ordered to be made upon a judicial accounting. In the absence of any proof of a fraudulent connivance or combination on the part of the residuary legatees, whereby the trust fund appointed to be held for his father’s life was affected or diverted; or of any proof to show that that fund was non-existent in the executor’s hands and never was set apart and held as a trust, the the plaintiff is without sufficient ground for an action against the residuary estate to compel them to refund, merely because there was a failure to cause his appearance upon the proceedings for a settlement, or some irregularity of procedure. His counsel’s brief is very full in its reasoning and bristles with propositions relating to the necessity for the observance of the rules established by statute, in order to confer jurisdiction upon the court, or to give force to its decrees. We do not dispute them, in the main ; but they do not touch this case. The difficulty in their application is that while they illustrate the effect of irregularities in proceedings before the surrogate and might be applicable as against the executors; or in a case where it is made to appear that the final distribution of the estate has been withoutn-egard to, and to the prejudice to prior claims upon the estate, they are not applicable in aid of an action like this; where the object is to compel the distributees to make good the amount of a trust fund, lost, presumably, through the misconduct of the trustee and, so far as the proof discloses, in no wise, through the acts of the residuary legatees.

We deem it unnecessary to continue the discussion. The opin-ion at general term is very full in its review of the questions and sufficiently answers many of them we have not referred to. Hor have we overlooked other questions, raised upon exceptions to the rulings of the trial judge. In our opinion there was no error in such respects. The plaintiff utterly failed to establish any of the charges against the defendants of a fraudulent contrivance or combination, resulting in injury to his rights, and his complaint was properly dismissed.

The judgment should be affirmed, with costs.

All concur; Andrews, Ch. J., in result.

Judgment affirmed.