text:
    The Bagley & Sewall Co., Resp’t, v. The Saranac River Pulp & Paper Co., App’lt.

      (Court of Appeals,

      Filed October 11, 1892.)

    Warranty—Breach of—Written proposal—Paroi evidence.
    In an action to recover the contract price of certain wood pulp machinery, the answer was that the same was purchased under a guaranty as to the quantity and quality of work, which was not fulfilled. The clause of guaranty was as follows: “ We will guarantee the above machines to take care of all the pulp produced from four “ Scott grinders,” and deliver the pulp 50 per cent dry. The acceptance was verbal. Keld, that paroi evidence was competent to ascertain and define the capacity of the particular grinders to which tho guaranty related.
    Appeal from, judgment of the supreme court, general term, third department, affirming judgment entered upon a verdict of a jury and order denying motion for new trial.

      Frank E. Smith, for app’lt; Elon R. Brown, for resp’t.

       Affirming 41 St. Rep., 864.

   Andrews, J.

The guaranty for the breach of which the defendant sought to counterclaim damages is contained in the written proposition made by the plaintiff to the defendant October 30, 1888, and orally accepted by the defendant, for the sale to the defendant of two “ wet machines,” to be used in the manufacture of wood pulp, after the process of grinding the pulp had been done by other machines constructed for that purpose.

The clause of guaranty is as follows: “We will guarantee the above machines to take care of all the pulp produced from four * Scott grinders,’ and deliver the pulp fifty per cent, dry.” When the proposition was made the defendant was engaged in erecting a pulp mill on its premises, and had contracted with the manu facturer of the Scott grinders for four grinders to be placed in the mill. They were subsequently placed in the mill, as were also the machines purchased from the plaintiff.

The defendant, in support of its contention, gave evidence tending to show that the machines bought of the plaintiff would not take care of. all the pulp produced by the four grinders placed in the mill, and deliver it fifty per cent dry. The four grinders would produce about eight tons of pulp a day, and the machines purchased of the plaintiff, while they would provide for that quantity, would not deliver it fifty per cent, dry, but forty to forty-five per cent dry. It was established on the part of the plaintiff that the machines would take care of at least six tons of pulp per day, and deliver it fifty per cent, dry, being an amount equal to 3,000 pounds of pulp for each grinder.

The plaintiff, in answer to the alleged counterclaim, was permitted to show that the guaranty was given upon the representation of the defendant that the Scott grinders, for which they had contracted, had a capacity of producing each 3,000 pounds of pulp per day, and that the proposition and guaranty were based upon this production. The point insisted upon in behalf of the defendant is, that this evidence was inadmissible, because in violation of the rule excluding oral evidence to contradict a written contract. Whether this evidence was in violation of the rule invoked is the main question in the case. The negotiation between the parties did not have its inception at the date of the proposition, October 30, 1888.

Oil June 27,1888, the defendant addressed a letter to the plaintiff, saying: “We have already made a trade for four grinders, that are guaranteed each to make 3,000 pounds every twenty-four hours, dry weight, and now we want to get a press to take care of it.” In another letter of October 16, 1888, the defendant. said: “ The machines we are putting in are guaranteed each to make 3,000 pounds, dry weight, pulp each twenty-four hours, or the four machines will turn out six tons a day. Ñow, will one of your 72 in. machines take care of this amount of pulp?” The con- ' versation between the parties concurrently with the date of the proposition (October 16, 1888), shows that the guaranty was made upon the basis that the capacity of the Scott grinders to be placed in the mill wás 3,000 pounds of pulp per day.

The inequity of the alleged counterclaim is apparent. But this is no answer to the rule of law invoked, if by its proper application it excludes a consideration of the facts referred to.

We think it may well be doubted whether the letters of June 27, 1888, and October 16, 1888, may not be considered as parts of the written contract for the sale of the machines. The proposition of guaranty of October 30, 1888, was its culmination, but the previous letters of the defendant explain the application of the guaranty, and being themselves in writing their consideration does not contravene the principle upon which oral terms are forbidden to be engrafted upon written contracts. But passing this we are of opinion that the oral evidence was competent to ascertain and define the capacity of the grinders to which the guaranty related. The parties were contracting for machines which would take care of the pulp produced by “ four Scott grinders,” and deliver it at a certain dryness. The amount of pulp produced depends, as the evidence shows, upon the capacity of the grinders and the power applied. Scott grinders are manufactured of varying capacity. The plaintiff had no knowledge of the capacity of the grinders which were to be placed in the mill except as informed by the defendant. It would be unreasonable to suppose that in making the contract with the plaintiff, the parties contracted without reference to the capacity of the grinders to be used, or that by the words, “ all the pulp produced by four Scott grinders,” the parties intended all the pulp which could be produced by any .Scott grinders operated with any power, however great. ' The extrinsic circumstances show that they had reference to the production of the four grinders contracted for, having the capacity represented by the defendant.

In interpreting the guaranty paroi evidence identifying the machines known as Scott grinders is essential. The fact that the grinders are of different . productive capacity involves the further inquiry, to grinders of what capacity did the parties refer ? This we think was the subject of explanation by paroi evidence. Such evidence does hot contradict the written contract^ nor does it add a new term thereto. It simply makes intelligible what needs explanation, and construing the written contract in light of the explanation, full force is given to all the words, without adding to or detracting anything therefrom. See Chapin v. Dobson, 78 N. Y., 74; Schmittler v. Simon, 114 id., 177; 23 St. Rep., 160; 1 Green. Ev., § 227, et seq. The paroi evidence was not admitted to limit the guaranty to a part of the product of the Scott grinders which the parties had in mind, but to show the particular grinders referred to and their capacity, and that the contract related to grinders of that description. “

The conclusion we, have reached renders it unnecessary to consider any of the other questions in the case. The facts as to the contemporaneous oral understanding of the parties and the other extrinsic facts are undisputed, and the plaintiff was entitled to judgment thereon.

The judgment below is, therefore, affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Gray, J.

license: Public Domain

text:
    The Columbus Watch Co. et al., App’lts, v. A. J. G. Hodenpyl et al., Resp’ts.

      (Court of Appeals,

      Filed October 11, 1892.)

    1. Judgment—Offer of—Collusion.
    If made to secure the payment of a just indebtedness, an offer to allow judgment to be entered is not a collusion which violates any rule of law, or gives the right to another and less fortunate creditor to interfere. The existence of some other purpose must be shown, which involves the commission of a fraud, or a legal injustice upon creditors, to render fraudulently collusive the preference permitted to a creditor in allowing an immediate entry of judgment in his suit.
    2. Same—-Evidence—Burden of proof.
    The burden of proof is upon the plaintiffs to show that there was no such indebtedness and it is not incumbent upon the defendants to establish its existence or bona fides, until it has been impeached.
    3. Same—Executors—Leave of surrogate—Code, § 1731.
    The rule requiring leave of the surrogate to issue execution against an executor, has no application to the case of an execution against a firm composed of a surviving partner and the executors of a deceased partner, to collect a debt due by such firm.
    4. Same.
    One of the judgments was obtained by a daughter of the testator upon a legacy due her from her father’s estate; but she let it remain in the business, drawing interest upon it. Eeld, that she thereby waived her right to insist upon its payment out of the estate, and elected to become a creditor of the firm; and being .such a creditor, she had the right to pursue her remedy against the firm assets for the recovery of the money loaned.
    5. Same.
    In another case, a loan had been to the old firm, and continued with the firm composed of the executors and the other partners, and was reduced from time to time by payments by the new firm, and a note of the new firm given. Held, that she thus became a creditor of the new firm, and, as such, entitled to proceed by judgment and execution in the ordinary way.

      Appeal from judgment of the supreme court, general term, first department, affirming judgment of special term dismissing complaint.

      Franklin Bien, for app’lts; Hays & Greenbaum, for resp’ts.

       Affirming 41 St. Rep., 393.

   Gray, J.

The plaintiffs were creditors of the firm of Stem & Stern, in New York city, and had procured attachments to be issued upon their claims as set forth in their several actions. They then brought this action for equitable relief, seeking to set aside certain judgments recovered against Stern & Stern, and the executions issued thereon against the property attached, and to restrain the sheriff from paying the executions until they, these plaintiffs, could perfect j udgments in their other actions. The grounds upon which plaintiffs base their right to such equitable relief, are a fraudulent collusion in obtaining the judgments, and the nullity of the executions for being issued against executors in contravention of the requirements of the provisions of the Code of Civil Procedure. In 1886, Joseph Stern, a member of the firm of Stern & Stern, died, leaving a will, whereby he constituted his widow, tlie defendant Dinah Stern, and his partner, the defendant Simon Stern, the executors of his estate, and therein authorized them “to conduct his interest in the business then carried on by him under the firm name of Stern & Stern, in conjunction with his brother, in such manner as they should deem proper, and for such time as they should deem for the interest of his estate.”

Thereafter, the business of the testator’s firm was carried on by the surviving partner and Joseph Stern’s executors, until November 29, 1889. On that date the judgments complained of were recovered against the firm of Stern & Stern and executions thereon issued to the sheriff. The trial j udge found that each of the judgments was for a debt justly owing by the firm to the party, or parties, in whose favor the judgment was entered ; and nothing which is pointed out by the appellants’ counsel would warrant us in saying that the findings were not justified. Indeed, their counsel bases his attacks upon the judgments upon inferences from the methods in which the judgments were recovered; rather than upon anything which amounts to evidence affecting the bona fides of the claims of the judgment creditors.

They were entered upon offers made by the defendant firm to allow judgment to be taken for the amount claimed, and, of course, in such a sense, they might be called collusive; but, if made to secure the payment of a just indebtedness, the offer to allow judgment to be entered is not a collusion which violates any rule of law, or gives the right to another and less fortunate creditor to interfere. The existence of some other purpose must be shown, which involves the commission of a fraud, or a legal injustice upon creditors, to render fraudulently collusive the preference permitted to a creditor in allowing an immediate entry of judgment in his suit. The judgments were all for goods sold and. delivered to the firm, with the exception of three, which were for moneys loaned to the firm. These latter judgments were recovered by relatives and they are particularly the subject of attack.

I see no good reason, nor is any advanced, for disturbing the conclusions reached by the learned justices at' the special and general terms. There was some evidence to support the finding as to the bona ftdes of the indebtedness, and there was no proof affirmatively establishing, or even tending to establish, on the plaintiffs’ part, that the judgments were for fraudulent, or non-existent demands. The courts below have drawn their inferences from the testimony given by defendants with respect to the judgments, and we cannot and should not disturb them.

I think, too, that the general, term justices correctly held the burden to have been upon the plaintiffs to show that there was no such indebtedness and that it was not incumbent upon the defendants to establish its existence, or bona fides, until it had been impeached. The appellants say that the executions issued upon the judgments of the defendants were null and void; and cite § 1371 of the Code; which provides that an execution upon a judgment for a sum of money, against an executor, is regulated by §§ 1825 and 1826 of* the Code. Those sections provide that the surrogate, in such a case, must permit the execution to issue by an order and for the giving of a notice of six days. The judgments, however, were not against the estate of the deceased partner and were not within these Code provisions. They were upon debts owing by the firm of Stern & Stern and the executions were not issued against the defendants, who were executors of Joseph Stern, the deceased partner, as such executors. They were partners in the business and in affixing to the names of Simon Stern and Dinah Stern the words executor and executrix, they were used as descriptive merely of the persons. As ' executors they were not interested in the business of the firm, otherwise than as the will authorized them to take part in it. The interest in that business which testator had at the time of his decease was continued by his executors and his general estate was not engaged. The claims of the judgment creditors were contracted either upon loans to or in the course- of business with the firm of Stern & Stern, and what was subjected to the hazards of that business was the particular part of the testator’s estate invested in his firm’s business. As to such a fund, the executors became co-partners and the debts incurred in the business were claims upon the partnership primarily, and not upon the testator’s estate. This will differs from that in Willis v. Sharp, 113 N. Y., 586 ; 23 St. Rep., 670, in that here the testator did not subject his general assets to the hazards of the business; while there the language of the will was so general, as to the powers conferred upon the executors to dispose of the whole estate in the conduct of the business, as to bind the general estate of the testatrix for the business debts. The right of executors to continue a business in which their testator had been engaged has been the subject of much consideration by the courts and the rules of construction as to the powers of executors, in such cases, are well settled. They derive those powers not from their office, but by virtue of the authority in the will. Such an authority must be explicitly found and the language of the will must be resorted to, when a question arises as to the nature of the liability which is incurred in the-conduct of a business by, executors.

The question was carefully reviewed in Willis v. Sharp, supra, by Judge Andrews, and the present case presents no occasion for a further discussion. The direction to the executors, in Joseph Stern’s will, was explicit enough, and nothing appears in- the case-warranting any other conclusion than that his executors, with respect to the 'business of Stern & Stern, subjected to its risks only that part of the estate which their testator had left invested in it, and gave to creditors dealing with the new partnership the usual rights of partnership creditors.

The claim of appellants that certain of the judgments were for loans made in the lifetime of Joseph Stern, the deceased partner, and that, therefore, resort could only have been had to his executors, is untenable. In the one case, a legacy was due to a daughter from her father’s estate; but she let it remain in the business, drawing interest upon it. She thereby waived her right to insist upon its payment out of the estate and elected to become a creditor of the firm, and being such a creditor, she had the right to pursue her remedy against the firm assets for the recovery of the money loaned. In the other case, a loan had been made to the old firm, which was continued with the firm formed upon Joseph’s death, and which was reduced in amount from time to time by payments by the new firm. For the balance due in 1889 she held the firm’s note, which was placed in judgment. She thus become a creditor of the firm, and, as such, entitled to pn ceed by judgment and execution in the ordinary way. As all the claims put in judgment were upon an indebtedness of the partnership, the provisions of the Code, relied upon by the appellants, did not apply, as they undoubtedly would have, had the judgments, to collect which the executions were issued, been recovered upon claims against the estate of the deceased testator.

These views are, in substance, those stated by the learned justice who spoke for the general term, and as the other questions are sufficiently answered in his opinion, I think the judgment appealed from should be affirmed by us, with costs.

All concur.


text:
    Thomas G. Frothingham et al., App’lts, v. A. J. G. Hodenpyl et al., Resp’ts.

      (Court of Appeals,

      Filed October 11, 1892.)

    Creditor's action—Parties.
    A mere creditor at large lias no right to maintain an action to attack the validity of judgments entered against his debtor on an offer, until his claim is established by a judgment and execution returned unsatisfied.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment of special term dismissing complaint

      Franhlin Bien, for app’lts; Hays & Greenbaum, for resp’ts.

       Affirming 41 St. Rep., 398.

   Gray, J.

This action differs only from that of the Columbus Watch Co. v. Hodenpyl, decided at this term, in the one respect that here the plaintiffs’ firm are general creditors of the firm of Stern & Stern, who demanded similar equitable relief against certain judgment creditors of that firm.

It is sufficient to say that, as creditors at large, they have no right to maintain any such action, or to question their debtors’ acts. Such right is gained when the claim of the creditor is established by a judgment and execution returned unsatisfied. Until then he cannot come into a court of equity for assistance to prevent or redress fraud alleged. Wiggins v. Armstrong, 2 Johns. Ch., 144; Dunlevy v. Tallmadge, 32 N. Y., 457.

The general term have correctly decided the case below, and I see no ground upon which this appeal is maintainable.

The judgment appealed from should be affirmed, with costs.

All concur.


author: Lansing, S.

text:
    In the Matter of Proving the Last Will of William H. Green, Deceased.

      (Surrogate’s Court, Rensselaer County,

      Filed March 8, 1892.)

    ■1. Will—Undue influence—Declarations of testator.
    While the fact of fraud or undue influence cannot be proved by the declarations, prior or subsequent, of the testator, such declarations are admissible when they denote the mental status or mental fact in issue.
    2. Same.
    A change of testamentary intention, however sudden, which results in giving the inheritance to the heir is not even ground for suspicion when the change follows a reconciliation after estrangement; especially when the reconciliation is stripped of sinister appearance, even, by reason of the first advance proceeding from the testator.
    Probate of will.
    Two wills are presented for probate; the first of which is dated July 2, 1888, with a codicil dated July 2, 1890, in which Eugene E. Barnes and Albert G. Barnes are named as executors, and the ■second is dated July 22, 1890, in which Georgianna R. Green is -named as sole executrix.
    Alden, King & Speck and Henry A. Merritt, for executors of first will; Davenport & Hollister (Charles E. Patterson, of counsel), for executrix of second will.
   Lansing, S.

Robert Green, father of testator, a prominent ■business man and an old resident of the city of Troy, died in 1876, leaving a widow and two children. He was twice married. By Lis first wife he had a son, the testator. The' only surviving child of the second marriage was a daughter, Georgianna R. Green, born -some ten years after her brother. He was about forty-eight years -of age at time of his death.

The property which William' H. Green owned at the time of his death was derived principally from his father. It consisted of one-lialf interest in two brick stores in Troy and a three-story brick building in Brooklyn, and certain stocks and bonds and a «collection of pictures, coins and books, all of the value of about ¡$40,000.

After the death of Bobert Green his widow and his two children continued to live together. Mrs. Green became an invalid, and after being confined to the house for several years and to her bed for months, died in November, 1888. _ Neither William H. nor his sister ever married.

William H. Green continued to reside at Troy until his death, which occurred August 11, 1890, at Patchogue, where he was temporarily sojourning.

Among his relatives, besides his sister, testator had three cousins-residing at Troy, children of Mrs. Kate Green and William H. Green (his father's brother), viz., Misses Mamie, Sarah and Emma Green, and six second cousins in Brooklyn, children of a cousin, of his father, viz., Eugene F. and Albert 0. Barnes, and their four sisters, Misses Emma and Angie Barnes, Mrs. Bobbins and Mrs. Wykoff, who are the beneficiaries under the will of July 2, 1888. He had also four cousins, the children of his mother’s brother, residing at Peekskill, N. Y., who, with his sister, were the beneficiaries under the last will of July 22, 1890.

The testator was an invalid for some time prior to his death. He was suffering from Bright’s disease and an irregular action of the heart. This heart trouble had been chronic for years and made him an invalid, subject to frequent attacks, which prostrated him for days and weeks at a time. He was undersized and quite deformed.

After the death of his stepmother William H. Green continued to live with his sister until May 1, 1889, when he took apartments on Third street, in the city of Troy. On the 1st of May, 1890, he went to the house of his aunt, Mrs. Kate Green, No. 5 Union place, where his cousins, the Misses ¡Mamie, Emma and Sarah,, resided with their mother. He remained there until June 15, 1890, when he went to Brooklyn to visit the Barnes, where he-remained until July 9, 1890, when he went to Brighton Beach,. Coney Island, in special charge of a nurse, one Peter Fitzharris.. He was at that time quite ill. The Barnes visited him there until July 13, 1890. At that time his sister, Georgianna B., in response-to his invitation, arrived. On the 22d day of July, 1890, the-will presented by her for probate was drawn by 'William H. Hollister, Jr., of Troy, her lawyer, but a mutual acquaintance and one who had transacted business for both on a previous occasion. July 24 William H. Green and his sister, accompanied by the-nurse, left Brighton Beach and went to Patchogue, a place forty or fifty miles distant, at which place he died August 11, 1890.

By the will of July 2, 1888, presented by Eugene F. and Albert 0. Barnes, the testator devised the Troy property to Miss Mamie Green, the Brooklyn dwelling to. Miss Emma Barnes for life, the remainder to her sister, Miss Angie Barnes. By this will also he gave to his half sister, Georgianna B. Green, a legacy of §62.50, and named the Misses Emma and Angie Barnes, Emma and Sarah Green as residuary legatees.

By the codicil to his will, executed July 2, 1890, he gave a-legacy of §200 to Mrs. Wykoff, formerly Miss Barnes, revoked a legacy to a cousin on his mother’s side, and gave a legacy in lieu* thereof to her sister. He also gave directions as to his own funeral and interment.

By the instrument offered for probate as the will of testator, dated July 22, 1890, he gave, with the exception of $500 each to four cousins, daughters of John Hyatt, his entire property to his sister, Georgianna E. Green.

The application for the proof of these several wills was consolidated and the matters heard together. The proponent of the later-will contested the probate of the first will upon the ground that the testator by his will of July 22 had revoked the former will. The proponents of the first will contested the probate of the last will upon the ground that the last will was not the will of testator, but was obtained by fraud, duress or undue influence of his sister, Georgianna E. Green, the proponent and principal beneficiary.

The sole question to be decided upon this hearing is, was this will of July 22 obtained by fraud, duress and undue influence?

Upon this question the burden of proof is ordinarily upon the party who makes the allegation. Tyler v. Gardiner, 35 N. Y., 559; Baldwin v. Parker, 99 Mass., 79, 85; In Matter Will of Martin, 98 N. Y., 196.

The general rule is that the influence that will avoid a will as undue must amount to moral coercion, restraining independent action and destroying free agency ; or the importunity must be such as to constrain the testator to do that which is against his desire. The undue influence which deprives a testator of the free exercise of his will must be exercised in respect to the very act. It is not sufficient for the purpose of establishing undue influence to show that the will is the result of affection and gratitude, or the persuasion which a friend or relative may legitimately use. Courts will hesitate to find that undue influence has been practiced, when the will is fair and reasonable, according to common instincts of mankind, and is suchas might with propriety and justice have been made by the decedent. In the absence of evidence of force, threats or coercion, the exercise of an influence springing from family relations or from motives of duty, affection and gratitude cannot be regarded as undue.

But the proof of undue influence need not be direct; it may be shown by circumstantial evidence, such as sinister conduct attending the execution of the will, mental weakness of the testator, want of harmony of the will with the testator’s general intentions, to which may be added interest and opportunity, although the last two are not alone sufficient. Coit v. Patchen, 77 N. Y., 589 ; Childrens' Aid Society v. Loveridge, 70 id., 394; 1 Jarman on Wills, 36 ; Tyler v. Gardiner, supra.

And it is further held, as a rule of evidence, when a later will is sought to be established to overthrow a prior one, the earlier will being made when the testator was in health and under circumstances of deliberation, and the latter when he was in feeble health and exposed to undue influence, and its provisions hostile to the provisions of the former, the prior will must prevail unless the later will is so proven as to satisfy the judgment and con.science of the court, that it speaks the deliberate intention of the testator. This, however, is subject to the general rule as to burden of proof when fraud and undue influence is the sole and distinct issue in the case. Tyler v. Gardiner, supra; Phipps v. Van Kleeck, 22 Hun, 541, 546; Baldwin v. Porter, supra.

In ordinary cases the formal execution of the will by a person who can read and write imports a knowledge of its contents. But in a case where a will is prepared or procured by one interested in its provisions the proponent must go farther, and not only show soundness of mind, but actual knowledge by the testator of the contents of the will, and that he was at that time under no undue or improper restraint of volition. But where it appears that the testator was of sound mind and clearly understood the provisions and contents of the will and appeared to be at that time under no undue influence, the burden which the law casts upon the contestant who alleges fraud and undue influence, returns and remains with him to establish his defense. Baldwin v. Parker, supra; Tyler v. Gardiner, supra; Boyse v. Rossborough, 6 H. L. Cases, 46.

In the last case Lord Cransworth says: Where it has once been proved that a will has been executed with due solemnity by a person of competent understanding and apparently a free agent, the burden of proving that it was executed under undue influence is on the party who alleges the undue influence ; undue influence cannot be presumed.”

In the case of the last will, which was drawn by Mr. Hollister, the formal execution of the will was not only satisfactorily proven, but it appeared that the testator dictated the will,- paragraph by paragraph, to the draughtsman in the absence of his sister; and when the will was executed, in the presence of three witnesses, including Mr. Hollister, it was read to him, and he also read the will himself in their presence, and after reading it said it was right, signed it, declared it tobe his last will and testament, and requested the witnesses, who were present to sign it as such. Although be was at that time sick, yet his health was considerably improved, so much so that he sat up during a portion of the time in a chair, and within two or three days thereafter traveled a distance of forty or fifty miles on the cars to Patchogue, retaining sufficient strength after his arrival there to spend the next day but one after his arrival, and several days thereafter, upon the hotel piazza, walking about unassisted, conversing freely with those whom he chanced to meet.

But the proponents of the earlier will insist that, motwithstanding the due and formal execution of the later will, and the testator’s undisputed knowledge of its contents, that the later instrument was the result' of the dominating will and undue influence exercised by his sister, not in making the will, but in causing the testator to make the instrument; and they insist that the will of July 2, 1888, which was made when the testator was in comparative health, residing with his sister, which was republished by the codicil of July 2, 1890, was the result of a deliberate intent upon the part of the testator to deprive his sister of his property and to give the same to his cousins, the Greens of Troy and the Barnes-of Brooklyn, and that such disposition was not only expressed in his will, but had been expressed in a prior will made May 1, -1888, and that the evidence tends to show a still earlier will, made within a year, perhaps, prior to that time, all containing the same provisions substantially in regard to the disposition of his property, in neither of which wills did his sister have any substantial provision in her favor.

It is further insisted that the declarations and conduct of the deceased, embracing a period of three or four years prior to his death, are in strict accord with the intention as expressed in said will and codicil.

In support of this contention, evidence was produced tending to show that the testator complained of petty annoyances which he had been subjected to at his home when residing with his sister ; that he stated he was unkindly treated; that he left the house because of such treatment, and although his outward relations with his sister were polite and friendly, yet at heart he disliked her, and deliberately resolved that she should not enjoy any of his property.

In further support of this contention, it is insisted that whilst testator disliked his sister, he was, on the other hand, sincerely attached to his cousins, the Misses Green, and especially Miss Mamie Green, his principal beneficiary under the will, and the Barnes of Brooklyn, with whom he spent a great deal of. time, and of whom he frequently spoke to his intimate friends. Tln.t these relations between these respective parties, as manifested in the earlier will, continued down until-the arrival of his sister at Coney Island on the 13th of July, 1890. It appears he had been quite sick at Troy from about the 1st of May, 1890, when he left his boarding place on Third street and went to his aunt’s, Mrs. Kate Green, No.'5 Union Place, where he remained .about six weeks. It appears his sister learned of his illness and wrote him a letter of sympathy, dated June 5, 1890, inviting him to her home, proffering to send for him and nurse him, to which he replied the same day kindly, thanking her for her proffer, and said he had been very sick, but was better, and that he would come over and see her as soon as he could. It does not appear that he called, though he apologizes for it in a subsequent letter which he wrote to his sister from Brighton Beach.

The proponents of the earlier will insist that his testamentary intention in regard to the disposition of his property remained, as appears in his will and codicil, without change, until his sister took charge of him on the 13th day of July; that she thereafter discharged his former physician, excluded the Barnes, who were visiting him from day today, and continued such exclusion until the-day of his death, took possession of his person,-dominated his will,, sent for her own lawyer, had a will drawn in her favor and then, removed, him secretly to another place where knowledge of his whereabouts was not known and would not be likely to be ascertained by tlie beneficiaries under his former will, and they invoke the rule that as the former will was executed when the testator was in health and the circumstances tended to show that it was made with deliberation, and the. later will made in ill health when in charge of the principal beneficiary, with interest and with every opportunity impelling her to procure a will in her favor, that the clearest and most satisfactory evidence should be given that this extraordinary revolution in the testamentary intention of the testator was brought about by such fair and reasonable means as the law justifies and allows, and that the later instrument was the free act and will of the testator.

We aré inclined to hold that this rule must obtain in this case, notwithstanding the general rule that the burden of proof is with the contestants to prove their defense of fraud and undue influence.

The period of time when the change occurred is exceedingly ■brief, not to exceed eight days. The question then comes to this: Does the evidence in this case furnish satisfactory proof that this complete change, which was wrought in so brief a period under the circumstances disclosed by the evidence in this case, was the unbiased, uninfluenced act of the testator’s own mind and will ?

The proponent of the later will insists that the proof is satisfactory and complete that the later instrument reflected the mind of the testator at the time of its execution, and in support of her contention claims that the will is a natural one, made in accordance with the common instincts of mankind, that it sprang from motives of duty, affection and gratitude, that it was such as might with propriety and justice have been made by the decedent; and, moreover, insists that the testimony, which covers much of the past history of the lives of the testator and his sister, shows that they lived together in one family for many years without bickering or discord, bound together by the ties of love and affection, and that whatever there was that interfered with those relations arose not to exceed three or four years before his death. A cloud of witnesses were produced, family friends and acquaintances, some calling frequently, some visiting and remaining weeks and months together; others, seamstresses and domestics, employed in the house, off and on, for years, who not only testified to friendly and pleasant relationship between the brother and sister, but even at times to marked exhibitions of affection and regard. This testimony is corroborated very greatly by a great body of letters, numbering some 300, extending over a period of ten years, which evince, at least during the earlier period, not only that the testator was satisfied with his home, but gladly returned there when away. In 1883 he writes his sister, she being at that time away with her mother, “T don’t know where I shall stop in Troy, anyhow, I shall be awful lonesome in a boarding house.” And again, within a day or two, “ I wish things were so fixed that you would come home and open the house. You may think I am in a hurry, but I am tired of going about from pillar to post; ” and a day or two later writes, “ I am stopping at Mo. 3 Ida terrace, and may make a change." [Ida terrace was the home of Mrs. Kate Green and her daughters.] “ I would like to change over to 7% Fifth street.” £At that time the residence of his sister.]

I think it is settled by the great weight of evidence that the-testator was satisfied with his home and surroundings, and that-affection for his sister dominated his heart at that time and did for some time after. July 2, 1888, the testator prepared an instrument with his own hand, in which he stated, after bequeathing the body of his estate to his cousins and second cousins, the-Greens and Barnes, “ To my sister, Georgianna R. Green, I give and bequeath the sum of sixty-two dollars and fifty cents, hoping that she may make good use of it.” It appears that he had made a former will on the 1st of May, 1888, a copy of which was found among his papers in his own writing, which contained the same provisions in regard to the disposition of his property to his collateral relatives as the subsequent will of July 2d, and also contained the following provision : “ Unto my sister, Georgianna R. Green, I bequeath the $62.50 that she owes me, hoping that she will make good use of it” Both of the wills contain the following clause: “ I desire the sum of $1,000 to be set apart to meet legal expenses in case there is any contest to break this my last will and testament, and if any one of the heirs shall contest this my last will and testatment then their bequest shall lapse and be void.”

There appears no reason to doubt that these wills expressed the intention of William H. Green at the time they were made. It is manifest -that the will of July 2, 1888, like the earlier one, of which it was a copy, and perhaps an earlier one still, was based upon deep resentment; somehow, under some circumstances which the evidence does not explain, the testator felt, whether justly or unjustly, that he had been injured, and its recollection sank deep into his heart, and this will was the undoubted offspring of resentment for an injury, real or imaginary. That it was deep, appears, from the fact that time had not softened his feelings towards his sister, although he was courteous and friendly in his external deportment. The will was prepared while living with his sister and before the death of her mother. The resentment had survived an illness in which his sister faithfully and carefully attended, him in Mew York in December, 1889, and undoubtedly continued down to July 2, 1890, for he then republished the will by his codicil of that date. His associations with the Greens and Barnes subsequent to' the making of the wills and his withdrawal from the home of his sister in May, 1889, and his not very frequent visits there thereafter, added to the jealousy and bickering which existed between the different families (Miss Georgianna R. Green on one side and the Greens and Barnes on the other), was not calculated to induce him to change his testamentary intention.

This brings us now to the important question in the case: the change of testamentary intent. That the earlier will was based upon resentment is manifest in the very instrument itself. It is claimed that the resentment or its cause needed but to be removed, when the old love and affection which once reigned in his heart for his sister would return, and then, in accordance with the common instincts of humanity, his sister, his only heir-at-law and next of kin (upon whom the law would cast the inheritance without a. will), being the natural object of bis bounty, would naturally become his principal beneficiary. It is claimed the evidence shows that this very result took place and that the last will was the result, not of fraud or undue influence, but of returned love and •affection for the natural object of his bounty.

In support of this contention it is urged that the evidence shows that he was a man of decided opinions, of strong will and not likely to be influenced to do anything which his heart .and judgment did not approve, and the evidence greatly preponderates from those who knew him best, including such witnesses as David M. Green, who was the executor of his father’s will, General •Joseph B. Carr, his wife and many others, who had known him long and well, neighbors and intimate friends, that he was a person of strong will. The evidence shows beyond all question that he dictated the later will, read it carefully and executed it after an expressed approval of i.ts contents.

But in this case some proof is required addition, considering the ill-health and weakness of the testator, his peculiar surroundings, his absence from those with whom he had for years associated as friends, and his previously decided expression of his testamentary intention, to show that all resentment had been buried and forgotten and that an entire reconciliation had taken place between this brother and sister and that they were upon their former footing, when, as he stated, he would he glad to change “from No. 3 Ida terrace (the home of Mrs. Kate Green and her daughters') to 72 Fifth street ’’(his sister’s home.)

We find him sick in Brooklyn at the Barnes' with a nurse employed. The doctor recommends a change to Brighton Beach, Coney Island. He goes there, accompanied by the nurse. He is sick unto death with his heart trouble, sits up all night at the window on his knees, panting for breath. The Barnes visit him every day or two, make quite protracted stays, and the testimony tends to show upon one occasion indulged in contentions in his presence which worried and wearied him. On the 11th of July he writes a pathetic letter to his sister, telling her that he was very ill, and adding: “ If you go west by way of New York, it would be nice for you to come on here for a day. I was sorry I could not see you before I left Troy, but it wasn’t possible. If you come on, I am in room 210. If you wait until fall I may not be able to see you at all, as unless a change takes place soon for the better I shall have passed to the great majority.”

His sister immediately came down, and if we may believe the testimony of Mr. Fitzharris, the nurse, she was received with ■every manifestation of joy and affection. What took place from this time on until his death between this brother and sister is an important matter to be determined. What explanations followed their meeting, how the differences were settled and adjusted, does not appear, and it is not necessary that it should, if they were .settled and adjusted. Fitzharris’ testimony tends to show a perfect reconciliation between the parties. He testifies that the tesvtator requested her to stay and take charge of him, and told her that he wished to go and live with her again if he got better, and she told him he would be welcome, that he could have his room-on the second floor, right near the bath-room, where it would be? convenient for him (he had roomed on third story before) and where she could take care of him. As to dismissing the physician, Dr. Matson, who had been employed by the Barnes, Fitzharris states the doctor came to Brighton Beach only onee- and that on the 11th of July, and he then stated that he could not come again, that his practice required his attention at home, but recommended Dr. Morrill, a stranger, who attended only once; that on the night after Miss Green’s arrival she telegraphed at Mr. Green’s direction to Dr. Anderton, a physician whom they both knew and who had attended him when he was sick at the Grand Union hotel in New York in December, 1888 ; that he came and took charge of the case; that Mr. Green at that time, July 13th, was very much depressed and was very ill, his feet much swollen, his heart’s action very bad and his temperature below normal; that Dr. Anderton gave instructions to keep all persons out of the room, and that it was in pursuance to these instructions that the Barnes, who came down on one or two occasions after that time, were excluded. The testator stated to the witness, as he testified, that he had been alienated for some years-from his sister and had removed from her house; that the Barnes-of Brooklyn and the Greens of Troy had tried to prejudice him against his sister; that he had tried to be a peacemaker between them always, but that they had tried to separate him from his sister, but that he thought more of his sister than he did of them. He also testified that letters were received after their reconciliation from both the Greens and the Barnes (these were put in evidence), in which derogatory remarks were made about his sister; that after reading them the testator passed them to his sister and said ; “Never mind, Georgie, when I get well I will make it all right. I will put an end to all these insults and persecutions.” He further testified that on one occasion, shortly after her arrival, when the subject of testator’s giving her a portion of his property was introduced by him, she said “ she did not come for his money, but for his life.” In fine, if the testimony of the witness Fitzharris could be relied upon with absolute confidence, it would appear beyond reasonable doubt, so far as the testator was concerned, that all heart burnings and resentments had been removed and that love for his sister reigned in his heart. It is claimed that the legitimate result of this reconciliation was a change of testamentary intention in regard to- his property, so. that the sister, instead of those who were wounding his feelings by slighting-remarks concerning her, naturally became the object of his-bounty.

Mr. Fitzharris’ testimony was challenged upon the hearing as-partisan, if not worse, and I should be quite disinclined to decide a case of the importance of this one upon his uncorroborated testimony, although there was no impeachment of this witness made, nor attempted, save that furnished by his own somewhat contradictory statements in regard to some minor matters testified to by him. But such corroboration is found in the testimony of Mrs. Kate B. Vail, the manager of the Laurel house at Patchogue during the summer of 1890, where William H. Green and his sister took up their abode on the 26th of July, and where William Green remained until his death. This witness, who was a stranger to the parties till that time, appeared to be disinterested, frank and independent, and a person'of much intelligence. Her appearance and manner of testifying impressed me favorably, and satisfied me she was a truthful witness. She testifies that she had several conversations with Mr. Green at her house: that “ about 11 o’clock on the following Monday, after he came there on Saturday,” she found him alone, sitting on the piazza, wdth a lot of newspapers before him; he told her his sister had gone to Troy to close up her house; he said he had been at Patchogue before, and liked the place, and chatted upon general topics. I asked him how long he was going to stay. He said he ‘ was going to stay quite a little while.’ He said he had been to Brighton, but did not like it there, that it was very noisy at night; he was not able to sleep; that he liked it here at night, that he was not disturbed, and was able to sleep. I asked him where he was going from here, and he said ‘ I am going home with my sister Georgie, and I am going to live with her; I have not lived with her recently, but I am going back to live with her.’ He said ‘I shall go back to live with her now as long as I live, and if I live until next year, and you run the house, I shall come back here.’ He said he had sent for his sister, and she came to take care of him. He said she gave him the very best care. He said his sister had gone up to close the house, went up Saturday, and would not be. back until Tuesday. This was Monday I had the talk with him. He took his dinner upon the piazza that day.” Witness testified she frequently saw William H. and his sister in his room together ; she was reading to him, fanning him, and rubbing his hand, and they appeared kind and affectionate toward each other. On another occasion he said: “ She was a good, kind sister to him, and that she had been kind and faithful to him during his sickness; that he was going back to live with Georgie; that she was the best friend he ever had.”

It must be remembered that the witness knew nothing of these parties, that she had not met Miss Green; that Miss Green was absent at the time of the conversation, had been gone for two days; that the testator was in comparative health, able to walk about the piazza; that he was at the time alone, so that he had ample opportunity to communicate with the Barnes and Greens had he so desired ; and if in the making of the last will he had been coerced, unduly influenced, or even overpersuaded, the act was so recent that such influence would have been likely to have left its impress, and have found expression in that conversation, instead of expressions entirely the reverse.

This testimony was not challenged or impeached or sought to be bjr the contestants of the later will, and it shows a condition of mind upon the part of the testator in absolute accord with the testamentary disposition of his property made by his last will and. with the statements of the witness Fitzharris. Some corroboration also is found in regard to his removal to Patchogue (which was regarded by the proponents of the first will as a suspicious-circumstance, since it was claimed that it was done solely for the purpose of placing him beyond the influence and reach of the Barnes) in the letter of Mr. Green, dated July 21, 1890, to Miss Crowell, in which he says: “ I have been very ill; had several physicians, my sister also closed the house and came down from Troy to nurse me back to health if possible, and will in a week or so take me to another seashore resort, as we don't like this one very well."

Some question was made upon the trial as to the effect as evidence of the declarations of a testator made prior and subsequent, to the making of the will.

It is well settled that the fact of fraud or undue influence can not be proved by the declarations, prior or subsequent, of the testator, but such declarations are admissible when they denote the; mental status or mental fact in issue.

It is always open to inquiry whether undue influence in any case operates to produce the will, and the conduct and declarations of the testator are entitled to more or less weight whether made before or subsequent to the making of the will, depending somewhat on the circumstances of each particular case. Subsequent declarations are competent when made so near the time of the execution of the will that a reasonable conclusion may be-drawn as to the state' of mind of the testator at the time the will was executed. Shailer v. Bumstead, 99 Mass., 128; Waterman v. Whitney, 1 Ker., 157; Marx v. McGlynn, 88 N. Y., 857.

The declarations in this case which were made t-o Mrs. Yail were made so near the time of the making of the will (four days) that they are clearly competent as showing the state and condition of mind under which the last testamentary disposition of testator’s property was made, and therefore are- not only competent, but cogent evidence upon the material question here at issue. And finally the proponent of the later will invokes the rule that, the law presumes a testator of sound mind and free volition will in general bestow his goods upon his next of kin and will not disinherit his heir, and assert the further rule that a change of testamentary intention, however sudden, which results in giving the-inheritance to- the heir is not even ground for serious suspicion, when the change follows a reconciliation after estrangement. I think the rule claimed is correct and- that it applies in this case,, and especially when the reconciliation is stripped of sinister appearance, even, by reason of the first advance proceeding from the testator.

Finally, with the most careful and conscientious thought that. I have-been able to bestow upon this matter, which has involved a great amount of time and labor in the examination of many hundred pages of testimony and voluminous briefs of counsel, F have reached the conclusion, in view of the fact that the testator-felt that he was “ soon to join the great majority,” and had sent, for his- sister who- thereafter nursed him tenderly and- of whom he declared that she was his best friend and that he was going to live with her during the balance of his life, that the differences which had so long existed between them, which found such sharp expression in his former wills and his letters to the Greens, were removed and that there was a complete reconciliation and a burial of resentment ante-dating the last will. That thereafter, in the light of that fact, every succeeding circumstance, including the exclusion of the Barnes, the making of the later will, the giving of the power of attorney, the exclusion of the Greens as objects of his bounty, and the inclusion as legatees of his cousins upon his mother’s side, appears rational and reasonable, and I find that the testator made his later will uninfluenced save by ties of blood, duty, gratitude and affection.

Let a decree be entered admitting the will of July 22, 1890, to probate.


author: Per Curiam.

text:
    Henry W. Steinhaeuser, Assignee, Resp’t, v. John Mason, App’lt.

      (Court of Appeals,

      Filed October 11, 1892.)

    Appeal&emdash;Pasties&emdash;Substitution.
    This appeal was brought from a judgment in favor of plaintiff, as assignee, for the benefit of creditors of one M. On his death application, was made for the substitution of his wife as his executrix. Held, that as executrix she had no interest in the litigation and no right of substitution ; that to entitle her to substitution she should be substituted as assignee and application made to substitute her as such in this action.
    Motion to substitute plaintiff’s wife as his executrix.

      Franklin Bien, for app’lt; Abram Kling, for resp’t.

       See 46 St. Rep., 393;

   Per Curiam.

This is simply a motion to substitute Mary C. Steinhaeuser, as executrix of the will of plaintiff, in his stead. As executrix, so far as any facts now appear, she has no place in the litigation and no right of substitution. If she has been properly substituted as assignee in the place of her deceased husband, then she should make a motion to be substituted as such in this action, and so far as we can perceive there would be no answer to such a motion. The moving papers do not disclose the fact that she has been substituted as assignee. This motion must therefore be denied, but as she seems to have been thus substituted since notice of this motion, the denial is without costs.

All concur.


text:
    John A. Nichols, Resp’t, v. The Scranton Steel Co., App’lt.

      (Court of Appeals,

      Filed October 11, 1892.)

    Appeal&emdash;Preference upon calendar&emdash;Code, § 791, sub. 10.
    The bare fact that the sheriff levied upon certain certificates of stock belonging to defendant and in the. possession of another party, and that the certificates continue to be held under the attachment, is not such a showing as to justify this court in preferring the argument, of the appeal over other causes on the general calendar,

      Motion to prefer case on appeal.

      Wilson & Wallis, for app’lt; H. P. Starbuck, for resp’t.

       See 46 St. Rep., 58;

   Gray, J.

A preference is claimed by the appellant upon our «calendar, upon the ground that the property of the defendant is held under attachment, and subdivision 10 of § 791 of the Code, is relied upon. That provision adds to the list of causes to be 'preferred, “a cause entitled to preference by the general rules of practice, etc.” The rules referred to are those of the supreme •court, and rule numbered 36 requires that “if the property of the defendant be held under attachment, the action shall be placed •on a preferred calendar.” This rule does not furnish, of itself, a reason for a preference upon the calendar of this court. Section 791 of the Code is expressly restricted in its operation by § 3347. By subdivision 6 of that section it is provided that chapter VIII, in which § 791 is found, applies only to “ proceedings taken in an action or special proceeding in one of the courts specified in subdivision fourth of this (3347) section; ” excepting certain specified sections, among which § 791 is not given. The subdivision 4th, referred to, specifies courts other than the court of appeals. Section 3347 was enacted to regulate the application of certain portions of the Code. An exception to such application is provided for where the particular provision' in a chapter, specified in a subdivision of the section, expressly designates the courts; in which case the provision is deemed excluded from the application <of the subdivision. In § 791, certain subdivisions do expressly designate, or include this court; but in subdivision 10 the preference is made to depend on the supreme court rules. Therefore, to obtain a preference upon the calendar of this court, in a case where it is not designated by the Code, or in our rules, the application must be addressed to the discretion of the court, upon a showing of such facts as may be deemed to render a preference proper to be awarded in the interests of justice.

In this case the bare fact is made to appear in the moving papers that the sheriff levied upon certain certificates of stock belonging to this defendant and in the possession of another party, and that the certificates continue to be he Id under that attachment. This is not such a showing as to justify us in preferring the argument of the appeal over other causes on the general calendar.

The motion should be denied; but, under the circumstances, without costs.

All concur.


author: O’Brien, J.

text:
    William Garratt, App’lt, v. The Trustees of the Village of Canandaigua, Resp’t.

      (Court of Appeals,

      Filed October 11, 1892.)

    Municipal corporations—Not liable to property owners eor insufficiency of public improvement.
    Public officers, or a municipality charged with the conduct of an improvement undertaken and carried on partially at the expense of local property owners, are not responsible to a property owner because the work has not resulted in such benefits and advantages to him as were anticipated, or because it does not answer all the purposes for which it was originally projected, when the authorises have acted in good faith, and are not chargeable with any neglect, default or unlawful act on their part.
    Appeal from judgment of the supreme court, general term,, fifth department, affirming judgment in favor of defendant.

      Henry M. Field, for app’lt; Edwin Hicks, for resp’t.

       Affirming 40 St. Rep., 944.

   O’Brien, J.

By chapter 658 of the Laws of 1886, the trustees of the village of Canandaigua were authorized to raise money and to take and appropriate lands for the purpose of constructing a system of drainage and sewerage for the village, and also for the purpose of reclaiming wet and swamp lands in two of the adjoining towns. The act provided for the appointment of commissioners by the county court to determine and award the damages sustained by any property owner whose lands were taken or injuriously affected by the improvement, and also to assess such portion of the expense of making the improvement upon the property benefited by the drainage in proportion to such benefit as might be just. The award of damages and the assessment for benefits were both subject to revision by the commissioners upon a rehearing, and to further examination upon appeal to the county court. The plaintiff was awarded damages in the sum of $156.36, and assessed, on account of benefits supposed to follow from the improvement, $800. It does not appear that he raised any question with respect to the amount of the assessment before the commissioners or appealed to the county court

The plaintiff’s general complaint is, that while he was assessed and has paid a large sum as his contribution to the expense of the work contemplated by the statute, his lands have not been drained or reclaimed to the extent anticipated. The plaintiff’s grievance really grows out of what to him appears to be an improper exercise of the sovereign power of taxation delegated by the legislature to the officers and bodies designated in the statute. The main object of the enactment was to enable the authorities of the village to improve the sewerage system, one of the ordinary public objects for which municipal burdens are imposed. It appears that something over $26,000 was expended for the purpose, and of this nearly $23,000 was assessed upon the village at large. The plan that was finally adopted and carried out by the trustees-was to dispose of the sewage through the outlet of the lake and what is called the feeder to this outlet, and this required the removal of certain obstructions in the stream which constituted the outlet, in order to produce a more rapid flow of the water. One of these obstructions was a dam across the outlet, some four miles from the foot of the lake, which had been maintained for many years for manufacturing purposes. The power of eminent domain, also delegated by the statute, was used to remove this dam, involving, as it did, the obligation to make compensation, in comparatively a large sum, to the owner, which was paid. The balance of the work in clearing out the stream consisted mostly in-the removal of bars and other obstacles to a free flow of the water, •and in dredging and deepening the channel in some places. The statute contemplated that the removal of these obstructions would ■enure to the benefit of the owners of land along the outlet and near the foot of the lake, which had been before subject to overflow, and hence power was conferred upon the commissioners to •charge ' some part of the expense upon these lands upon the basis of the benefits conferred. What the plaintiff complains ■of is, that this power has been so exercised as to impose upoh him a considerable burden without conferring all the benefits ■contemplated when it was imposed and paid. The learned trial .judge, who was evidently somewhat impressed with the merits of the plaintiff’s claim, has not found that the removal of the obstruction in the outlet is not in some degree beneficial to the plaintiff’s farm, but he has found that the removal of the obstruction and cleaning out of the feeder and outlet and taking down of the dam, have not drawn off the water from the plaintiff’s lands to the extent that they expected, and that they are still overflowed and unfit for cultivation to a very great extent He also finds that since the completion of the improvement the rainfall in the locality has been unusually heavy, and that it does not appear precisely to what extent the lands of the plaintiff would be free from water in ordinary times and under ordinary circumstances, but that it was expected when the plan for cleaning the •outlet was adopted it would, when carried out, sufficiently drain plaintiff’s lands to enable him to till them. Is must be admitted that the trustees and the commissioners had under the statute power and jurisdiction to make the improvement and to impose •the assessment How the improvement in the drainage of the village was to be secured and how the wet lands along the outlet to be reclaimed was left by the legislature, in a great measure, to the discretion and judgment of the village authorities. The statute does not prescribe the plan or details of the work by means of which the end was to be accomplished. That was left to the judgment of the trustees and, even though the plan that was adopted was faulty and a much better plan might have been devised, still, as they acted in good faith, they could not be made responsible for the results or consequences of an erroneous judgment in that regard. Hines v. City of Lockport, 50 N. Y., 236 ; Urquhart v. City of Ogdensburg, 91 N. Y., 67.

The power to drain the lands near the village might have been conferred by the legislature for public purposes, to promote health or the like, and whether that was the motive that prompted the •enactment of the statute, or some private interest, is not now important.

Jurisdiction was conferred upon the commissioners with respect to assessments upon the lands along the outlet, for benefits to result from the drainage, subject to appeal by any party aggrieved to the county court. If it be said that the plaintiff ought not to have been assessed at all or that he has been assessed for too large a sum, the answer is that upon this question he has had his day in court

He could have appeared before the commissioners, and by evidence or argument satisfied them that the proposed plan would not when carried out result in reclaiming any of his wet lands, or certainly not to such an extent as to warrant the imposition upon him of so large a burden. He was entitled to a hearing, and to show if he could that the improvement proposed would not result in any benefit to him, and to insist that until some plan was formulated upon the basis of which the work was to be done that would result in draining the lands, no assessment should be imposed upon him. He had as good an opportunity of forming an opinion as to the effect on his wet lands of the improvement proposed as the trustees. He had the right to object to any assessment until the commissioners were convinced that what was proposed with respect to clearing out the feeder and outlet would result in improving his lands to the extent of the assessment proposed. In case the commissioners proceeded upon erroneous principles, or upon a basis that furnished no reasonable ground for the belief that any benefit to the plaintiff’s property would follow from the work proposed, or for any other valid reason, based upon the facts or the law, the plaintiff was entitled to a further hearing in the county court. As the plaintiff neither objected nor appealed, but allowed the award and assessment to be confirmed, we must assume that he, like the trustees who had been entrusted with the duty of formulating and executing a proper plan for the improvement, anticipated results from what was proposed which have not been fairly realized. That consideration, however, would not justify this court in assuming that the assessment was either erroneous or excessive as a ground for some liability against the defendant in this action. All that we ■can know now in regard to the assessment is that there was jurisdiction to make it, and ample opportunity to review it if erroneous, and that there is no finding, or request to find, that the improvement was not in some degree at least beneficial to the plaintiff’s property. Under such circumstances it must be presumed, in an independent action like this, that the assessment was fair, and based upon a proper adjustment of the benefits conferred and the burden imposed.

The part of the plaintiff’s case that, perhaps is argued with most earnestness, is the fact found that the trustees caused to be erected at the head of what is called a feeder, or large artificial channel through which the water flows from the lake into the outlet, and near the place where gates had formerly existed, to control the flow of water, a bridge and gates by means of which they are enabled to control the flow of water from the lake as they may desire. The rights and privileges conferred by the statute were to be exercised in such a way that the waters of the lake should be maintained at a height not less than the ordinary height of such water at low water mark. To this end the trustees were, by the last section of the act, authorized to erect and maintain in the outlet of the lake, and in the new channel for said outlet, locks or bulkheads with gates, and by such and other adequate means to so control and regulate the discharge of the waters as to fully comply with the provisions of the act. The plaintiff complains that the trustees do not keep the gate closed, but, on the contrary, wide open, and permit water to flow through it into the outlet to such an extent as to overflow his lands. There is no question with respect to the power of the trustees to erect and maintain the gate and control the flow of the water. The plaintiff’s claim seems to be that this power should be exercised in such a way as to lessen the flow of water in the outlet and thus relieve his lands. The bed of the outlet is the sewer through which the sewage from the village was to be carried away, and when improved in the manner contemplated by the statute, was to be and remain the property of the city.

The defendants are, therefore, using the gate to regulate the flow of the water from the lake into this sewer and how much or how little they shall allow to pass through the gate is a matter that, from the nature of the case, must, to a great extent at least, rest in their discretion. It is not alleged or found, and there is no request to find, that the defendants have omitted any duty that they owe to the plaintiff with respect to the construction of the gates, or the manner of their operation. It is not found, and there is no request to find, that in any of these particulars the defendants or their predecessors have been guilty of any negligent or unlawful act ¡Nor is there any finding or request that more water is allowed to pass through the outlet from the lake since than before the improvement, or any other act done • on the part of the defendants in making the improvement or in using the gates which increases the overflow of water on the plaintiff’s lands. It may very well be that the defendants in using the gates could favor the plaintiff by shutting off the flow of water through the outlet, but we are unable to find anything in the case to warrant us in holding that they are under any legal duty or obligation to do so. The statute does not seem to have contemplated that the improvement provided for was to lessen the flow of water into the outlet from the lake, but to furnish facilities, by removing the dam and other obstructions, for a more free and rapid flow of the water. The dam and other obstructions in the outlet were supposed to cause the overflow, and when removed it was expected the lands would be reclaimed. That these expectations have not been fully realized is, perhaps, to be attributed more to the fact that sufficient money or labor was not expended in the work of removing the obstructions and deepening and adding to the capacity of the outlet, rather than to any mismanagement or defect in the plan. What has been done seems to have been well enough directed, but the operations did not go far enough, for the purpose of completely draining and reclaiming the overflowed lands. It is the case of an improvement undertaken and carried on partially at the expense of local property owners, which,, in the end, did not confer upon them all the benefits that had been anticipated, but which result, so far as appears, is not chargeable to any wrong or negligence on the-part of the defendants. Public officers or a municipality, charged with the conduct of such a work, are not responsible to a property owner because the work has not resulted in such benefits and advantages to him as were anticipated, or because it does not answer all the purposes for which it was originally projected, when the authorities have acted in good faith, and are not chargeable with any neglect, default or unlawful act on their part To enjoin defendants from regulating the flow of the water through the gates in their own way and according to their best judgment, and to require them to exclude, by the use of the gate, all water from the lake that may overflow the plaintiff’s lands, would be to deprive them of all discretion, when, so far as appears, their action in regard to it is not unlawful, malicious or negligent The action was not, therefore, sustained, and the complaint was properly dismissed. We have examined the rulings and other questions in the case to which our attention has been called, and we find no error that would justify a new trial.

The judgment should, therefore, be affirmed, with costs.

All concur.


author: Finch, J.

text:
    The People ex rel. Isaac P. Martin, App’lt, v. Theodore W. Myers et al., Resp’ts.

      (Court of Appeals,

      Filed October 11, 1892.)

    Highways—Assessment nor improving street in New York — Certiorari.
    A void assessment for improving the roadway in the city of New York cannot be vacated by means of a writ of certiorari; the owner has no affirmative right to vacate, and is remitted to his defense when his property is levied upon, or in some cases to his right to remove the apparent lien by paying the tax, and then suing to recover it back.
    Appeal from judgment of the supreme court, general term, ■first department.

      Geo. G. Munger, for app’lt; D. J. Dean, for resp’ts.
   Finch, J.

The purpose of the writ of certiorari issued in this proceeding is to review the action of the assessors and board of revision in levying an assessment for improving the roadway of what is described as the Kingsbridge road, in the city of ¡New York. The work was commenced in 1888, completed in 1889, and the assessment made and confirmed in 1890. The petitioner alleges jurisdictional defects which make the assessment absolutely and wholly void, and seeks an affirmative judgment annulling and vacating the entire proceeding. Refusing to avail himself of the special remedy given by the consolidation act, he claims the right to vacate the assessment by an affirmative application for that sole purpose. It is quite certain, and we have so held, that the owner of land subjected to the apparent lien of a void assessment may resist a levy upon his property for its payment, or, where the invalidity arises outside of the record and does not appear on its face, may pay the assessment and then recover it back from the city. Chase v. Chase, 95 N. Y., 373; Matter of Smith, 99 id., 424; Jex v. The Mayor, 103 id., 536; 3 St. Rep., 657, and 111 N. Y., 339; 19 St. Rep., 132. But beyond these remedies for a void assessment, which no statute has taken. away, and outside of the special remedy for fraud or substantial error given by the consolidation act, it is now claimed that a void assessment may be vacated by an affirmative proceeding on the part of the landowner through the operation and effect of a writ of certiorari, and whether that is permissible or not becomes the primary question on this appeal.

In framing the special remedy for fraud or substantial error the legislature took occasion to limit and restrain the application of other and existing remedies. It provided that no suit or action in the nature of a bill in equity or otherwise should be commenced for the vacation of any assessment in said city, or to remove a cloud upon title; but owners of property shall be confined to their remedies to the proceedings under that title. We have described this provision as broad and unqualified and applicable to all assessments. Eno v. The Mayor, 68 N. Y., 214; Mayer v. The Mayor, 101 id., 284.

By its terms an assessment can only be vacated or modified through the affirmative action of the landowner by resort to the special remedy provided. To forbid the vacating of an assessment by a bill in equity and yet permit it upon a certiorari would deprive the intended restraint of all its force, and is prevented by the express limitation which confines the affirmative action of the landowner to the special remedy provided. Although most of the provisions of title 8 of the consolidation act relate to-assessments made before June 9, 1880, we have ruled that the special remedy by petition to correct assessments made after that date remains and is regulated by § 908. Under its provisions the landowner can obtain no other relief than a reduction of his assessment .to a just proportion of the fair value of the work done.

Matter of Feust, 121 N. Y., 299; 31 St Rep., 83. That case clearly intimates that no other affirmative remedy to vacate or set aside the assessment remains to the landowner, and that is true under the explicit language of the section even where the assessment is void, Matter of Smith, supra; and so the general term in New York have been constrained to hold that a certiorari cannot properly issue to vacate an assessment People ex rel. Consolidated Cas Co. v. Myers, 47 St. Rep., 70. Where the error complained of consists in some matter of form amounting to an irregularity, or some injury resulting from fraud, the special remedy of a reduction will usually give adequate relief. But where it is sought to vacate the assessment entirely as void and a nullity, the consolidation act interposes its prohibition, and the combined force of §§ 897 and 903 leaves to the landowner aggrieved no affirmative right to vacate, and remits him wholly to his defense when his property is levied upon, or in some cases to his right to remove the apparent lien by paying the tax, and then suing to recover it back. If there is hardship in the law, as there seems to be, there was at least some justification in the flood of litigation which was sought to be arrested, and the loss and confusion which followed.

The order of the. general term should be affirmed, with costs.

All concur.


text:
    Clark R. Griggs, App’lt, v. Melville C. Day et al., Resp’ts.

      (Court of Appeals,

      Filed October 11, 1892.)

    Reeebee—Fees—Stipulation.
    A stipulation that the referee “may charge such fees as he deems proper ” is invalid. The rate of compensation must be fixed by the stipulatian under § 3396 of the Code.
    Appeal from order of the Mew York superior court, general term, affirming order affirming taxation of costs.

      Calvin Frost, for app’lt; Wm. R. Bronk, for resp’ts.

       Affirming 46 St. Rep., 533.

   Gray, J.

When the issues in this action came on for trial before the referee the parties consented to waive the statutory provision as to his fees; which consent was subsequently reduced to writing as follows: “ that the referee shall not be limited to the statutory fee of six dollars per day for his services in this case; but may charge such fees therefor as he deems proper.” The plaintiff paid to the referee, upon taking up his report, the sum of $7,500 fixed by him as his charge; but upon the taxation of costs, objection being made by the defendant to its allowance, the clerk disallowed the item. The court below has felt bound by authority to sustain the clerk’s ruling, and we are constrained to affirm the order. It does not appear that the referee’s fees were unwarrantable, upon any ground connected with the litigation. We are permitted to assume that they constituted a fair compensation for the services rendered; the objection to them being rested upon the sole grounds that the stipulation was not made “ at or before the commencement of the trial ” and that the rate of compensation” was not fixed by the stipulation.

The first ground of objection we regard as frivolous. If parties agree, as they did agree here, in the commencement, to waive the statutory provisions and, subsequently, during the trial the agreement is entered upon the referee’s minutes, or otherwise reduced to writing, the waiver is sufficient in such respects.

The second ground of objection, however, is within a decision of this court, in the case of The First National Bank v. Tamajo, 77 N. Y., 476, and must be sustained. It is true that that decision was upon the provision in the former code, and, also, that the precise point raised by that appeal was the sufficiency of an oral agreement to take the question of the referee’s charges out of the statute. But the present Code provision (§ 3296) equally requires the “ rate of compensation ” to be “ fixed by the consent, of the parties; ” and, with respect to the construction to be attached to the whole section, the opinion in the Tamajo case was too comprehensive and deliberate to be now disregarded. It undoubtedly was the intention of the learned judge, in delivering the opinion of the court, to carefully lay down a rule to be followed in all eases and, hence, he considered the subject in the light of the language made use of in the Code and of the general policy of the law. He held that an agreement in writing which did not fix any rate of compensation, but left it to the referee to make, was not charging the prescribed rate of compensation in the mode specified by the Code, and he reasoned that such an agreement was contrary to the general rule that costs should “ not depend as to amount upon the discretion of any court or officer.” In the present case the defendants have sought to escape upon a purely technical objection from the effect of a written stipulation, which it was their duty to recognize and which the promptings of a moral and an honorable sense should have impelled them to abide by. To hold them, however, to the Stipulation, would compel us to run counter to the previous decision of the court, and as stability of decision is rather to be preferred as a rule in the admininsbration of justice we should not, for an occasional instance of hardship in the application of the established rule, be moved to swerve from it. The order should be affirmed.

Order affirmed, with costs.

All concur.