author: Van Brunt, P. J. Patterson, J. Lawrence, J.

text:
    John O’Brien et al., App’lts, v. The Mayor, etc., of New York, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June 29, 1892.)

    1. Municipal Corporations—Contract—Aqueduct commissioners.
    The aqueduct commissioners and their employees have no power by any interpretations thereof to waive the terms or obligations of a contract made by them and thereby impose additional burdens upon the city.
    2. Same.
    Where the contract made by the commissioners provides that the decision and estimate of its engineer shall be final and conclusive and a condition precedent to payment, a recovery cannot be had against the city for an amount in excess of that stated in the final certificate of the engineer.
    Appeal from judgment entered upon verdict directed by the court.

      E. T. Lovatt, for app’lts; Jas. C. Carter, Elihu Root, Austen G. Fox and Wallace Macfarlane, for resp’t.
   Van Brunt, P. J.

—On the 1st of June, 1883, the legislature passed an act (being chapter 490 of the Laws of 1883) entitled “An act to provide new reservoirs, dams and a new aqueduct, with the appurtenances thereto, for the purpose of supplying the city of New York with an.increased supply of pure and wholesome water.” By the first section of this act the mayor, comptroller, commissioner of public works and three citizens were authorized, empowered and directed to carry out the provisions of the act in the manner thereinafter provided, and they were to be known as the aqueduct commissioners. By the second section it was provided that the commissioner pf public works should, under the direction of the aqueduct commissioners, as soon as possible after the passage of the act, submit to them a plan or plans for the construction of a new aqueduct or conduit for water; and for the construction of one or more dams or reservoirs to retain such water, and for the construction of the appurtenances thereto. These plans the aqueduct commissioners might adopt, modify or reject, in whole or in part; and might cause such surveys to be made as they might deem expedient to enable them to act intelligently in the premises. And it was provided that in case of the rejection of any such plan or plans by the said aqueduct commissioners, the said commissioner of public works should in like manner prepare and submit another plan or plans, etc.; which course should be continued until a plan or plans covering the entire work contemplated by the act should be approved by the aqueduct commissioners.

The act then provided for the acquisition of the land necessary to carry out the work. And by the 25th section it was provided that the commissioner of public works should from time to time as might be necessary prepare and submit to the aqueduct commissioners, and to the counsel to the corporation, forms of contract and specifications, and bonds for the faithful performance thereof, for the doing of the work and the furnishing of the materials required to.be done nnd furnished by the said approved plan, or for the doing of such parts of such work, and the furnishing of such parts of such materials as might from time to time be required for that purpose; which forms of contracts, specifications and bonds, were to be approved by the aqueduct commissioners, and approved as to form by the counsel to the corporation; and that the said aqueduct commissioners should have the exclusive authority to determine what provisions should be embodied in said contract, in order, so far as might be possible, to save the city from loss, embarrassment and litigation by reason of any work done or supplies-furnished thereunder, which approval should be evidenced by their certificate endorsed thereon, signed by a majority of them ; and the approval of the counsel to the corporation was to be evidenced by his certificate to that effect, endorsed in like manner.

By § 26 it was provided that when the form of the contract with its specifications, and the form of the' bond for the faithful performance thereof, should have been approved as above provided, the said commissioners should advertise for sealed bids or proposals for the doing of the work or the furnishing of the materials called for in such approved form of contract; and after the receipt of such bids or proposals, by § 28 it was provided that they should be publicly opened by said aqueduct commissioners, who were empowered to accept that bid or proposal, the acceptance of which would, in their judgment, best secure the performance of the contract ; or they might reject any and all such bids.

Section 30 provided that the contracts when so awarded were to be executed in triplicate by the contractors on the one part, and the aqueduct commissioners acting for the city of New York on-the other part; and that the work and materials called for by such contract should be done and furnished under the direction and supervision, and subject to the inspection of, said aqueduct commissioners, their engineer, supervisors and inspectors, but such direction, supervision and inspection might be entrusted to the engineers and other subordinates of the department of public works, so far as said commissioners should so direct; but in no event should the city of New York be held in any action or .proceeding brought or had under any contract so made to any other or greater liability than that expressed therein, nor be required to pay out or otherwise dispose of any sum of money for the doing of such work or the furnishing of such material greater than is stipulated in said contract, nor otherwise than in strict conformity to the terms thereof.

Section 33 provided that all work thereby authorized to be done, and all materials to be furnished, involving an expenditure of over $1,000 should be procured by contract made in the manner required by and pursuant to the provisions of the act. The said commissioners were, however, empowered, without contract, to cause such surveys to be made, and such maps and plans prepared, as should, in their opinion, be necessary to carry out the provisions of the act, and might appoint and fix the compensation of suitable engineers and other persons to supervise and inspect all the work by said act authorized to be done. The said aqueduct commissioners were also empowered to procure any work to be done without contract, not involving the expenditure of over $5,000, if they should certify that in their opinion it was. for the public interest that such work should be so done, and in such certificate they were required to state their reasons therefor.

Pursuant to the authority thus conferred upon this board, forms of contract and specifications were proposed by the commissioner of public works to the°aqueduct commissioners, and approved by them, and also as to form by the corporation counsel. Bids were thereupon invited in the manner provided by the statute for different portions of the contemplated work; and the plaintiffs in this action having bid for that portion of the work known as section six, the contract therefor was awarded to them, and a contract in the manner prescribed by the statute was executed by the1 said contractors, and on behalf of the city by the aqueduct commissioners.

By this contract the plaintiffs agreed that they would at their own expense and in strict conformity to the specifications in said contract contained, furnish all the materials and labor necessary or proper for the purpose, and in a good, substantial and workmanlike manner excavate a tunnel and its shafts, do all other excavation, and build all masonry, and do all other work necessary to build the aqueduct and all its appurtenances from the points therein named, in the manner and under the conditions therein specified.

Various general provisions then follow in the contract to the effect that, to prevent all disputes and litigation, it was agreed' between the parties to it that the engineer should in all cases determine the amount of the work, and quantities of the several kinds of work which were to be paid for under the contract, and should determine all questions in respect to said contract and the construction thereof, and in all cases decide every question which might arise relative to the execution of the contract on the part of the contractor, and this estimate and decision should be final and conclusive in case any question should arise; and should be a condition precedent to the right of the plaintiffs to receive any money .under the contract. And the work to be done under the contract being mostly underground, and it being impossible at the timé of the execution of the contract to estimate with accuracy the quantity of the various classes of work to be done and materials to be furnished, it was, therefore, therein stated to be expressly understood and mutually agreed that the estimated quantities stated in the notice .attached to the contract should be only for the purpose of comparing on a uniform basis the bids offered; and the contractor agreed that neither the parties of the first part nor the aqueduct commissioners nor any of them were to be held responsible that any of the said estimated quantities should be found even approximately correct in the construction of the work; that he was satisfied and would at no time dispute the said estimated quantities as a means of comparing the bids, and that he would make no claim for anticipated profits or loss of profits because of a difference between the quantities of the various classes of work actually done or materials furnished and said estimate; and he undertook and agreed that he would complete the entire work to the satisfaction of the aqueduct commissioners and in accordance with the specifications and plan in said contract mentioned, at the price therein agreed upon and fixed therefor, except for such extra work for the performance of which written orders might be received as in said contract elsewhere specified.

It was further agreed that the said tunnel, shafts and trenches should be excavated, and the masonry built, and all the work, labor and material to be done and furnished under the contract should be done and furnished strictly pursuant to and in conformity with the specifications attached to the contract, and the direction of the engineer under them; which specifically were declared to form a part of the contract.

By the first paragraph of said specifications it was provided that they showed the location of the work and its general character, and that during the progress of the work working plans should be furnished by the engineer, and that all work during its progress, and on its completion must conform truly to the lines and levels given by the engineer and must be built by the plans and directions given by him from time to time, subject to such modifications and additions as he should deem necessary during its execution; and that in no case would any work in excess of the requirements of the plan or specifications be paid for unless ordered in writing by the engineer as thereinafter set forth.

Paragraph 8 declares that borings have been made on portions of the line to ascertain the nature of the underground strata through which the shaft and tunnel are to be constructed and the results of the borings are shown on the plans; but should the character and extent of the various materials be found to differ from what is indicated the contractor shall have no claim on that account, and it is expressly understood that the city does not warrant the indications of the borings to be correct. And paragraph 9 provides that the places where it is believed that the excavation is to be in tunnel and where in open trench and the limits of each are shown on the plan, but if in the opinion of the engineer the nature of the material to be excavated at any point, or the conditions of the case shall render it advisable, be may require the excavation to be made in tunnel although the plans indicate that it is to be made in open trench or vice versa.

Paragraph 18 provides that masonry should be built within the tunnel at such points, and of such material, and of such form, and dimensions as the chief engineer may determine from time to time (referring to certain sheets for illustrations. of some of the proposed forms.)

Paragraph 19 provides for weepers of certain dimensions to be built in the sidewalks and floor, and that no deduction in the measurement of the masonry will be made for the weepers, which must be built true and smooth.

Paragraph 21 provides that the tunnel at any place is to be excavated to the lines of the cross section determined by the engineer for that place; and that no payments would be made for any excavating outside of the cross section of the tunnel excavation determined by the engineer, but all loose or shaky rock must be removed. The price per cubic yard stipulated in said contract for tunnel excavation, was to cover all excavation due to the presence' of quicksand or other soft material, rotten rock, boulders, etc.; and the cost of all pumping and bailing, of all timbering, and the removal of same, of removing all excavated materials, of all ventilation, and of all other work incident to the excavation of the tunnel, and any expenses that might arise from loose and shaky rock, or from falls or cave-ins, or from unexpected obstacles, was to be borne by the contractor.

Paragraph 22. The engineer was authorized to order at any time additional excavations in the tunnel or shafts, and the contractor was to do such excavation, which was to be measured according to the lines of the cross sections determined by the engineer, and paid for by the cubic yard as tunnel excavation.

By Par. 23, it was provided that if, after the excavation had been made of a certain size by direction of the engineer, he should be of the opinion that the nature of the rock or other material was such that the form and dimensions of the masonry for which said excavation was intended must be increased, he might order an enlargement of the excavation for the purpose of building masonry of greater thickness, and the contractor was to make such enlargement, which was to be measured according to the linés given by the engineer, and to be paid for at the price per cubic yard in said contract stipulated for tunnel excavation.

Par. 24. In rock excavation the drilling and blasting was to be conducted with all possible care so as not to shatter the roof and sides of the tunnel outside of the lines determined by the engineer, and in soft material precaution must be taken not to allow cavities to be formed behind the timbering or other supports, and especially in the vicinity of the existing Croton aqueduct the blasting and timbering' and any other operation connected with the work should be so .regulated as not to cause injury to said aqueduct And the contractor was to be held responsible for all injuries to said aqueduct caused by his work.

Par. 25: If in the opinion of the engineer the contractor by the 1 use of too high explosives, bad location of drill holes and aefectve arrangements of timbers or supports, or want of proper skill or attention, should excavate the tunnel or shafts to greater dimensions than was required for the proper building of the masonry, the -excess of tunnel or shaft area thus formed should be filled solid at the expense of the contractor with such kinds of- masonry (brick, concrete or rubble masonry as in said contract specified), or other material as the engineer might direct.

By Par. 26, the contractor was made responsible for properly supporting the roof and sides of the tunnel, and the sides of the trenches and shafts with timber or other supports. And it was further provided that if the engineer should be of opinion that sufficient or proper supports had not been provided he might order additional supports, or order them modified or replaced at the expense of the contractor, and the compliance with such order by the contractor should not relieve or release him from his responsibility for the sufficiency of such supports.

Par. 49 provided that all lines and grades were to be given by the engineer, who might change them from time' to time as he might be authorized and directed by said aqueduct commissioners, even to the extent of lowering or raising the grade line of the aqueduct or ordering vertical or side drifts.

By Par. 51 it was stated that the plans and specifications were intended to be explanatory of each other, and should any discrepancy appear, or any misunderstanding arise as to the import of anything contained in either, the explanation and decision of the chief engineer should be binding and final upon the contractor, and all explanations required, alluded or necessary to complete any of the provisions of the specifications and give them due effect were to be given by the engineer.

By section H. of the specifications it was provided that no claim for extra work should be made unless before the performance of such extra work the said commissioners should have first authorized in writing such extra work, and should have also first certified in writing for each and every order that it is in their opinion for the public interest that such extra work should be done, stating in such certificate their reasons therefor; nor unless before the performance of such extra work the price or prices to be paid therefor should likewise first have been agreed upon in writing between said commissioners and the contractor, and done in obedience to the written order of the chief engineer; and that the aggregate price should not exceed the sum of $5,000 on any one order.

By subdivision 0. the prices for the work and its general character were fixed: For tunnel excavation, including all work incidental thereto, $7 per cubic yard was to be paid; for brick masonry laid in American cement mortar, and all incidental work, $10 per cubic yard; for concrete masonry, including all incidental work, $5 per yard for one composition, and $5.50 for another; and for rubble stone masonry, including' all incidental work, $5 per cubic yard, etc.

By subdivision T. of the specifications it was provided that in order to enable the contractor to prosecute the work advantageously, the engineer should once a month make an estimate of the work done, and the value thereof according to the terms of the contract, which estimates should not be required to be made by strict measurement, but might, at the option of the engineer, be approximate only; and that upon each such estimate being made the contractor was to receive ninety per cent, of the estimated value of the work done and materials furnished; and that whenever, in the opinion of the engineer, the contractor should have completely performed his work, the engineer should so certify in writing to the aqueduct commissioners, and his certificate should ' state from actual measurement the whole amount of the work done by the contractor and also the value of the work according to the terms of the contract; and that on the expiration of thirty days after the acceptance by said commissioners of the work agreed to be done, the city should pay to the contractor in cash the amount remaining after deducting from the amount so valued contained and stated in said last mentioned certificate, all such sums as should theretofore have been paid.

And by sub. U. it was expressly agreed and understood that the city of New York should not, nor should any department or officer of the city of New York, be precluded or stopped by any return or certificate made or given by any engineer, inspector or officer, agent or appointee of said aqueduct commissioners from at any time showing the true and correct amount and character of the work which should be done and the materials which should have been furnished by the contractor.

And by sub. Y. it was expressly understood and agreed that the action of the engineer by which the said contractor was to be bound and concluded according to the terms of his contract, should be that evidenced by his final certificate; all prior partial payments being merely upon estimates subject to the correction of such final certificate, which final certificate might be made without notice thereof to the contractor, or the measurements upon which the same was based.

The plaintiffs, the contractors, having entered upon and completed the work mentioned in the contract, brought this action to recover certain sums alleged to be due for' work done by them under and in pursuance of said contract, or during and in the course of the performance thereof.

The answer of the defendant was to the effect that the chief engineer of the aqueduct commissioners proceeded to determine and did determine the amount and quantities of the several kinds of work which were to be paid for under said contract, and the whole amount and the value of said work under and according to the terms of said contract, and made his final estimate and decision thereof and evidenced the same by his certificate, wherein he stated from actual measurement the whole amount of work done by the plaintiffs and the value of such work under and according to the terms of said contract, and that as appears by said estimate and decision and final certificate, there remained due to the plaintiffs the sum of about $20,000, and no more; and denied generally all liability beyond this sum for any work claimed to have been done by the contractors.

Upon the trial a verdict was directed in favor of the plaintiffs for said sum only, and from the judgment thereupon entered the plaintiffs take this appeal.

It will be impossible to discuss in detail the questions which arise relating to the numerous causes of action set out in the complaint, some of which are stated in various forms. But it will be sufficient in determining this appeal to confine ourselves to the consideration of some general propositions which necessarily dispose of all the claims which have been advanced both upon the part of the plaintiffs and the defendant.

It is apparent that the plaintiffs must be claiming either for work done under the contract in question, and pursuant to its terms, or for work outside of its provisions, and which, therefore, necessarily comes under the designation of extra work.

From the language of the complaint it is difficult to determine the proposition as to whether the plaintiffs seek a recovery because of any extra work, or whether they simply desire to declare that all the work for which they claim compensation has been done in pursuance of the contract.

. In considering this question it .must be borne in mind that the liability of the defendant is strictly statutory; and we must look to the act of 1883 for the authority to impose whatever liability the defendant has incurred. This is manifest, because the work in question was not done by the agents or servants of the defendant corporation. The Croton aqueduct commissioners and their employees were independent of the corporation as to the tenure of their office, and the manner of discharging their duties; and they were in no way amenable to the corporation. The subordinates were subject entirely to the orders and direction of the aqueduct commissioners, who were created by direct legislative enactment

Such being the relations between the city and the persons who had charge of this work, the authority of those persons to charge the city must necessarily be found in the law creating them and defining the manner and method by which they were to accomplish their work. The legislature took upon itself to construct by its own officials a public work for the benefit of the inhabitants of the city of New York; and by virtue of its sovereign power, ignoring all claim'which the municipal corporation might have to control its own private affairs, put its hands into the public treasury of said city for the purpose of paying the expenses thereof. With the question as to the initiation of this work, or its progress or manner of execution, the city had nothing whatever to do.

Its office was to pay those obligations which the statute authorized to be imposed upon it; and it had no other relation to or connection with the work in question.

• In this respect the position of the city differs materially from thát which it occupied in the case of Bailey v. Mayor, 3 Hill, 531; 2 Denio, 433, as in that case the Work could not proceed without the authority of the electors in the city.

By the act under consideration it is apparent that the only manner in which liability could be created against the city beyond the amount of $1,000 was by writing, and beyond the amount of $5,000 by contract in writing, except that relating to the surveys, maps, plans and estimates necessary to be prepared, and in reference to the compensation of engineers and other persons to supervise and inspect the work by the act authorized to be done.

No claim is presented for extra work in which these requirements of the statute have been complied with. And, therefore, it follows that for such extra work, even if performed, no liability could be imposed upon the city, because, as has already been stated, the persons having the control of the construction of this public work were acting pursuant to legislative authority; and only for such expenditures as could be shown to have been incurred pursuant to such legislative authority could the city be made liable. The claim, therefore, of the plaintiffs must be considered as presented for work done under the contract, and pursuant to its terms, and the questions of difference between the plaintiffs and the defendant, as far as the questions involved in this appeal are concerned, therefore relate to the construction of the terms of the contract.

It seems to be claimed upon the part of the plaintiffs that they were bound to follow the directions of the engineer in chief and his assistants ; and are entitled to avail themselves in this action of instructions which were given by the engineer during the progress of the work in reference to the terms of the contract.

It is apparent, both from the language of the statute and also from the language of the contract, that liability could not arise out of talk. The aqueduct commissioners were expressly prohibited from creating liabilities in that way; and the contract prevented the engineer from directing the performance of any work in excess of the requirements of the plans and specifications unless in writing. It is true that the work was to be performed in accordance with the plans of the engineer and the directions given by him from time to time, subject to such modifications and additions as he should deem necessary during its execution. But it is apparent that if any of these modifications were in excess of the requirements of the plans and specifications, it was necessary that the engineer should order the same in writing. And, therefore, primarily, the obligation of the city to pay must be either because of work done or materials furnished pursuant to the strict letter of the contract, or of the performance of some work in excess of the requirements of the plans or specifications, ordered in writing by the'engineer. But even these are not sufficient to constitute a complete' obligation upon the part .of the city, because such obligation to pay depends upon the giving by the chief engineer of bis final certificate based upon actual measurements as to amount of work done, the value of which work was to be determined by the terms of the contract.

In the case at bar such final certificate was given; and for the amount represented by such final certificate the plaintiffs have "had judgment. But it is claimed upon the part of the plaintiffs that such final certificate is incorrect, in that it improperly excludes work done by the plaintiffs for which, under the terms of the contract, they are entitled to compensation. There is no imputation that this certificate was fraudulently given ; and therefore it would seem that the plaintiffs are bound by its terms, if the language of the contract which was entered into by them with the aqueduct commissioners upon the part of the city is to receive any reasonable interpretation.

■With the hardships of such a construction we have nothing to do. The obligation of the city, as has been heretofore more than once repeated, depends upon the terms of the contract; and if no such obligation is shown upon the part of the plaintiffs according to the terms of the contract, we cannot see where liability upon the part of the city ¿rises. And therefore, it would seem that this final certificate was absolutely conclusive, and whether it could be impeached for fraud or not is a question which it is not necessary for us now to determine.

But the difference between the engineer in giving the final certificate and the contractors seems to depend upon the construction of the terms of this contract; the claim of the plaintiffs being largely based upon the fact that in the early part of the work, before its final completion, the engineer intimated that some more liberal construction of the contract ought to be made for the benefit of the plaintiffs. But it does not seem to require argument to show that the limitations of the contract could not be construed away by interpretations of the chief engineer; and we have searched in vain through the contract for any provision therein contained which would justify such a construction.

It is true the work is to be done under the directions of the chief engineer, and he may modify the work, and its manner of doing; but unless there is a .provision in this contract for payment for that kind of modified work, then there is no obligation dpon the part of the city to pay, and the contractor was not bound to do it

It is true that it is urged that in order that the work should progress at all, it was necessary that the contractor should follow the directions of the engineer. But this argument is based upon the maxim that necessity knows no law; and that it being necessary for the contractor in his prosecution of this work to obey the instructions of the engineer, even though they were without the pale of the law which gave the engineer any authority to"act, still a liability exists.

Such is not the case. The engineer had no roving commission which would entitle him to alter the terms of this contract and impose additional obligations upon the city independent of and at variance with its terms. The most that can be said is that where the contract was ambiguous, the directions of the engineer in favor of one or another construction might under the terms of the contract be considered binding both upon the contractor and the city. But in a case where there has been provision in the contract for the doing of the work, and for the measurement of liability because of the doing of the work, the engineer had no power by any interpretation that he might give, to waive its terms or obligations, and thereby imposes additional burdens upon the city. The language of the statute is that in no event shall the city be held in any action or proceeding brought or had under any contract so made to any other or greater liability than that expressed therein, nor required to pay out or otherwise dispose of any sum of money for the doing of such work or the furnishing of such materials greater than is stipulated in such contract, nor otherwise than in strict conformity to the terms thereof. L,

Therefore, it seems to us that all this discussion as to the interpretation of the engineer placed upon this contract has no bearing upon the question as to the liability of the city; and although many of the claims of the plaintiffs in reference to the action of the chief engineer may be shown by an examination of the record in this case to be unfounded, it is not necessary in the view we have taken as to the relations of the parties to enter into their discussion except in one or two instances.

One of the principal claims advanced by the plaintiffs is that relating to tunnel excavation, it being urged that under the contract they are entitled to recover, as for excavations, for all the space outside of the brick work which has been filled with masonry, which masonry has been estimated and paid for by the defendant. In support of this position it is claimed that m places where the space is filled in with dry filling outside of the brick work the tunnel excavation is allowed for and to be paid by the defendant; and that such payments were intended by the provisions of the contract has always been agreed to by the parties to the contract; and that the minimum line given to the contractors bounds a greater area than the line that only includes the outside of the brick work ; and that the evidence shows that one of the division engineers told the contractors and illustrated to them on the face of the tunnel that no rock should be left inside of a section sixteen feet high and sixteen feet wide, and that the work of excavation of the portion of the tunnel that was made from the commencement of the work until January, 1886, was done in accordance with that direction and yet not a foot of the tunnel is estimated in accordance therewith.

The truth of the representations made by the plaintiffs in this regard it is not necessary to investigate, because the contract is certain and explicit in reference to the area that was to be allowed for in estimating tunnel excavation, and, as has already been intimated, no direction or statement upon the part of the engineer could modify its provisions.

The specifications (par. 17) provide that the form and area of the cross section of the tunnel at any place shall be such as the engineer shall determine for that place, but at all points it shall have an area of at least 201 square feet. It then states that various forms of cross sections of the tunnel are illustrated on sheets 8£, 9-J and 16 of the plans, and that on the plans the line limiting the cross section of tunnel excavation is designated by letters A. A. A.

It is conceded upon all sides, and apparent upon an inspection of the plans, that the letters A. A A. show the exterior line of the outside of the brick lining of the aqueduct. Therefore the contract itself has defined what is intended in the contract by the words “ cross section,” and what shall be its limits; and, therefore, when the engineer has determined the diameter of the tunnel, and the thickness of the lining, he has determined the cross section ; and there is no discretion given to the engineer to determine the- cross section in any other manner. Upon a determination made in this manner, the whole of the provisions of the contract in reference to tunnel excavations are based. Subdivision 21 says that the tunnel at any place is to be excavated to the lines of the cross section determined by the engineer for that place, and that no payments will be made for any excavating outside of the cross section of the tunnel excavation determined by the engineer, but all loose or shaky rock must be removed. It is •certain that the loose or shaky rock removed under these circumstances is not to be paid for. If it were, why the necessity of stating the fact that it should be removed? The spacq from which all the loose and shaky rock was to be removed was to be filled in, pursuant to the terms of the contract, with masonry, and the question as to whether the contractor should be paid for such masonry depends upon whether in the opinion of the engineer .such loose or shaky rock had been caused by a want of proper skill or attention of the contractor in making the excavation. (Sub. 25.)

Furthermore, in the same subdivision 21, it is provided that the price per cubic yard stipulated in said contract for tunnel excava-' tian was to cover all excavation due to the presence of quicksand or other soft material, rotten rock, boulders, and the cost of all pumping and bailing, of all timbering and the removal of same, •of removing all excavated materials, of all ventilation and of all •other work incident to the excavation Of the tunnel; and any expense that might arise from loose and shaky rock, or from falls or cave-ins, or from unexpected obstacles was to be borne by the •contractor.

If the contractor was to be paid for the total excavation necessarily made in excavating the cross section, why was there any necessity for the provision that any expense that might arise from loose or shaky rock, etc., or from unexpected obstacles, should be ■borne by the contractor.

That it was the purpose of the contract to limit the cross section to the exterior line of the masonry lining of the tunnel is •also evidenced by the 23d subdivision of the specifications, which provides that if after the excavation had been made of a certain ■size by direction of the engineer he should be of the opinion that the nature of the rock, or other material, was such that the form ■and dimensions of the masonry for which such excavation was intended (evidently referring to the masonry lining of the tunnel) must be increased, he might order an enlargement of the excavation for the purpose of building masonry of greater thickness, and the contractor was to make such enlargement, which was to be measured according to the lines given by the' engineer and to be paid for at the price per cubic yard stipulated for tunnel excavation.

In other words, if after the engineer has determined the limits of the cross section consisting of the diameter ox the tunnel, plus the thickness of the brickwork, it is ascertained because of the nature •of the rock or other material that it is necessary to have a thicker lining (“masonry of greater thickness” are the words.of the specification) the engineer might order the additional excavation to be made. The contractor is bound to do the work and charge at the ;same rate for this additional excavation that he would have been entitled to receive had such enlargement not taken place, although it is conceded it was a more expensive method of doing the work :for the contractor.

The argument that because a liability was recognized upon the part of the city to pay for filling solid (where such filling was by mar sonry) the area of excavation over the limits of the cross section,, provided it was not excessive, therefore there was an obligation to-pay for the excavation beyond the limits of the cross section, cannot prevail, as the two are entirely independent, and they each recognize what the parties to the contract well understood to be the fact, that there must be excavation beyond the limits of the cross-section, and that that excess must be filled, if with masonry, to be paid for, (sub. 18) if with dry filling, at the expense of the contractor (sub. 20).

Hence the provisions of sub. 25 authorizing the engineer to-compel the contractors to fill in at their own expense such part of such excess of tunnel or shaft area as should be formed by want of proper skill and attention in the making of the excavation.

It is true it would appear as though the chief engineer was of the opinion that he had the right to do in respect to these contractors that which he might think was equitable, no matter what: might be the provisions of the contract But it is clear that he entirely mistook the position which he occupied, and the powers conferred upon him by the contract in question. Hothing that he could say or do could be made binding upon the defendant unless the authority for the saying and doing can be pointed out in the contract; and therefore all that was said in the monthly estimates or in the letters of the chief engineer which in any respect militate against the plain terms of the contract were in no way binding, upon the defendant And when the aqueduct commissioners directed the engineer in his estimates to be governed by the contract, they did nothing more than instruct him that he was bound by the law.

The claim of the plaintiffs for timber placed and fastened does not seem to have any foundation in the provisions of the contract This claim seems to be based upon alleged misrepresentations-made to the plaintiffs prior to the execution of the contract in regard to the nature of the ground that would be encountered, whereby the use of timbering became necessary, the plan being-changed from open trench to tunnel.

It will be observed that subd. 8 of the specifications, heretofore-referred to, entirely relieves the city from any responsibility for representations as to the verity of the results assumed from timberings which had been made upon the line of the work; and that subd. 9 gave authority to the engineer, whenever in his opinion it should be desirable, to change the excavation from open trench to tunnel; and that by subd. 21 it is provided that the price per cubic yard stipulated in the contract for tunnel excavation should include all timbering and the removal of the same.

It is true when the change was made that there was evidence-that it was stated to the engineer that this new plan of timbering was going'to cost the contractors much more, and the reply ol the-engineer was " Very well; you put the timbering in and we will pay you for it'; and whatever extra it costs you, and the extra, amount of timbering you put in there we will have our engineers-estimate you for, and pay you for it”

But this was not an order of extra work in the manner provided by the contract; and it was not included within the contract; hence there seems to be no foundation for this claim. .

The claim as to grading stands in precisely the same position, and clearly was not the masonry contemplated by the contract; and it would seem that the plaintiffs agreed to do it at their own expense, and that it was done by them voluntarily and in order to make their work complete under the contract; and that, in any event, it was extra work, and the conditions precedent to liability had not been fulfilled.

The claim in respect to extra work done and materials furnished on account of errors in alignment does not seem to be provided for by the contract and hence no liability could arise.

It does not seem necessary to advert to the other causes of action, particularly as the principles already enunciated seem to dispose of the claim founded upon such causes of action.

The claim for footing stones is admitted by the defendants to be an equitable one to the extent of $240. But the plaintiffs having made no claim to the engineer on this subject, and never having put him in a position in which he could allow the claim in his final certificate, it would seem that the condition precedent had not been complied with necessary to allow a recovery as matter of right to this amount. In fact very few of the causes of action alleged in the complaint have ever been presented to the chief engineer, or were presented to him prior to the making of his final certificate, so that he might pass upon the same, and include them in final certificate, if it was proper to do so. This would seem to be an additional obstacle in the way of a successful prosecution of the claims made in the action at bar.

Upon the whole case, therefore, we are ofo opinion that a recovery cannot be had in this action beyond that which was ordered in the court below. As has been iterated and reiterated during this opinion, tire foundation of all liability upon the part of the •city must be found in the law and the contract; and unless it can be shown that the claimed liability has authority from the law •commanding the contract, and from the contract, then clearly it ■does not exist.

It seems to us that the difficulty in the case arose from,,the fact that in the entering into this contract, and in the early progress ■of the work, both the contractor and the chief engineer entirely misapprehended their relations to it, and their rights and obligations under it, each assuming that equitable considerations might have their weight in determining questions where the rigid terms •of the contract seemed to work a hardship.

In these both were clearly mistaken, as by the law liability could •only be fastened upon the city in the manner by it prescribed.

The judgment should therefore be affirmed.

Patterson, J.

—I concur in the views expressed in the opinion of the presiding justice and in the conclusion reached that the plaintiffs cannot recovér in this action -anything more than the amount of the judgment entered upon the verdict directed on the trial. There are several obstacles in the way of a further recovery on any of the causes of action set forth in the complaint, one-of them being the final certificate of the engineer given in accordance with the requirements of the contract and by which certificate the plaintiffs were necessarily bound, for there is nothing in the case as I read it that impeaches such certificate or would permit the court to. ignore or disregard it. When the contract was entered into it was in the form and contained stipulations adopted by the aqueduct commissioners not only under the authority but by the peremptory command of the act creating the commission, Bids were invited upon that contract, and the plaintiffs must have known all its tezms, conditions and provisions when they entered upon the obligations they assuzned under it. There was neither fraud nor any other legal ground for attacking the final certificate. It was made by the contract conclusive evidence as a final estimate founded on actual measurements and an actual ascertainment, of the work done for which the plaintiffs were entitled to final payment -from the city, and although it may have been made upon a different basis of computation from that which entered into the-intermediate and provisional certificates, yet it seems to have beezz honestly made in accordance with the requirements of the contract in that regard, and as making it was a condition precedent, to the right of the plaintiffs!o receive final payment, and as the amount fixed thereby was to be the measure of ultimate liability,, it stands as a barrier to any further recovery than that above-referred to.

So far as the facts set forth in various causes of action asserted' in the complaint are concerned, it seems to me that, notwithstanding the theory of liability predicated of them, all claims connected therewith cozhe under the contract itself, and that in theiinature as considered with respect' to the terms of the contract and! the provision of the statute as to liability of the city none of them can be enforced as claims arising extrinsic thereof. There, however, is one cause of action in respect of which a serious argument has been made that the city is liable because of mistakes of the engineers in giving erroneous lines and levels of parts of the-contract work whereby that work was largely increased and a much greater expenditure caused to the contractors than would have been necessitated had those erroneous lines and levels not-been given.

The claim is made that the city is liable for these mistakes of' the engineers, for the reason that those who gave the instructions-were the agents and servants, or officer’s of the city, and the latter-is bound by their acts, and is responsible to the plaintiffs as in an action for damages for negligence. At the trial the learned judge discarded this view, and held the city was not liable. The authorities he cited in the opinion delivered by him in disposing of the case at the circuit sustain his ruling, and upon the general principle relating to the liability of a municipal corporation for the negligence or wrongful acts of its servants or officers! think, in view of the peculiar attitude in which the city stood to the subject matter of the contract and to the aqueduct commissioners and its employees, the ruling was right. We have not been referred by the appellants’ counsel to any adjudicated case or decision at variance with the views expressed on cthis subject by the learned judge at circuit, but we suppose they would rely upon People ex rel. Ryan v. Civil Service Board, 41 Hun, 287; 2 St. Rep., 656, as an authority opposed to the ruling under consideration. That case was decided by this court, and was affirmed by the court of appeals. It declared the status of the aqueduct commissioners and their employees as to the city, and distinctly held that they were agents and servants of the city within the meaning of the Civil Service act, and that this was so because the city was bound by the contracts of the commissioners. But it really decided nothing more than that. The court did not pretend to pass upon the questions of what contracts might be made by the commissioners, or the liability of the city for wrongful acts of the employees of the commissioners connected with work done under contracts. Even if the commissioners and employees were servants of the city, they were not so for all purposes of a general character.

The commissioners were limited by the statute, and their engineers and other employees had specific duties to discharge, and with the performance thereof the municipal authorities could not interfere. Although the work when completed would be for the benefit of the city, the commissioners were to act as an independent body. The city had no authority to contract for, meddle with, or do anything whatever connected with the work. It could not compel performance, or supervise the acts either of the contractors or the commissioners; it could not appoint or remove any one employed by the commissioners ; it could not hold the contractors or the engineers to any accountability during the progress of the work. Interposed between it and the contractors was this self- ■ governing, distinct and separate body, with limited powers, and with no right to incur any liability for the defendant exceeding that, or outside of that, provided for by .contract.

As said before, I am of the opinion that whatever claim the plaintiffs may have for work done or expense incurred by reason of alleged mistakes of engineers is altogether one under the con-. tract. That the plaintiffs are entitled to compensation under the contract and according to the rates established thereby for all work ordered by the engineers in execution of the contract, whether on mistaken or correct lines and levels, may be conceded. That is a very different thing from a liability arising outside the contract All the orders and directions of the engineers were given in prosecuting the work under the contract and in the attempted and intended execution of the plans (original or modified) and specifications; and if we are correct in that statement, it would seem to follow that the provisions of § 30 of the contract preclude a recovery on the cause of action referred to.

Lawrence, J.

—I concur in this opinion on the authority of Maximilian v. Mayor, 62 N. Y., 160.


source: Caselaw Access Project

author: Andrews, J.

license: Public Domain

text:
    Wilfred S. Mills, App’lt, v. Edmund T. Smith, Ex’r, et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed June 29, 1892.)

    Legacy—Residuary legatees not liable fob misappropriation of trust FUND BY EXECUTORS.
    By the will of plaintiff’s grandfather the sum of $20,000 was given to his executors, to be taken from the personal estate, in trust for plaintiff’s father for life, with ‘ remainder to any children he might leave at his death, and the residue was disposed of among the widow and other children. Various accountings were had at the instance of the residuary legatees, J ut plaintiff was pot cited nor a special guardian appointed for him, which accountings stated that the trust fund had been set apart. On the death of plaintiff’s father payment of the legacy was demanded of the surviving executor, who was insolvent, but the same has not been paid. Held, that the residuary legatees were under no legal obligation to have a special guardian appointed for plaintiff; to compel the executors to give bonds; to see that the appraisement was made and inventory filed in the manner required by statute, or to look after the interests of plaintiff on the accounting, and in the absence of fraud on their part were not liable for a misappropriation or loss of the fund by the executors.
    Appeal from a judgment dismissing complaint after a trial at special term.

      George H. Hart, for app’lt; Fred W. Hinrichs, for resp’ts.
   Andrews, J.

—William W. Mills died in January, 1865, leaving a widow Eliza A. Mills, and eight children, namely, Washington, William W., Horatio, Wilfred, Josephine, Oscar J. and Theodore F. Mills, and Amanda M. Smith, wife of Edmund T. Smith. The deceased left a will, in which his widow, Eliza A., and two of bis children, Washington and William W., were named as executrix and executors. Such will was admitted to probate by the surrogate of Suffolk county. New York, on Janu ary 26, 1865, and letters testamentary were thereupon issued to said executrix and executors, all of whom qualified. Said widow died in July, 1865, and thereafter the two executors continued to act as such. Said son Theodore F. married in 1858 and had two children, one of whom died August 28, 1868, and the other is the plaintiff, who was born November 10, 1865. Said Theodore died January 29, 1886, leaving the plaintiff as his only surviving child. Said daughter, Josephine Mills, was made a party to this action, but died after the action was brought, in July, 1888. Said son Washington died before this action was brought, unmarried and insolvent. Said son William W., as sole surviving executor of the testator, was served with a summons in this action, but does not defend the action, or appear in it; it is claimed by plaintiff, and not denied, that he is insolvent. Said son Oscar J. does not defend or appear. The defendants who defend the action are Edmund T. Smith, Wilfred I. Mills, Amanda M. Smith. Said Amanda M. defends individually; said Wilfred I. individually and as an executor of Josephine Mills, deceased; and said Edmund T. Smith as sole surviving executor of said widow and as an executor of said Josephine Mills, deceased.

The will of the testator contained the following provision : “ I give and bequeath to said Eliza A. Mills, Washington Mills, and William Wickham Mills, Jr., executrix and executors as aforesaid, the sum of twenty thousand dollars ($20,000), to be taken by them out of my personal estate, in trust, however, to loan the same from time to time on bond and mortgage on real estate, and to apply the net income to arise therefrom at their discretion to and for the use of my son Theodore Mills during his natural life, and upon his decease to divide such last mentioned principal sum, and so much of the income thereof as shall remain unexpended, equally among his children, if he shall leave any; and if lie shall not leave any child living at the time of his decease, then in further trust to divide the same equally among my remaining children, except Oscar J.; if any of them my said children shall then be dead, his or her child, or children, if any, to take the share of the parent deceased.” The sum of $15,000 was also given to the executrix and executors, to be held upon a like trust for the benefit of his son Oscar J. Mills and his children, if he should leave any. The testator gave his wife certain chattels, the use and occupation of his homestead during her life, and the income of $50,000 during her life. All the rest of his estate, and upon the death of his widow said principal sum of $50,000, were given in equal parts to all the children except said Theodore and Oscar J.

The plaintiff became twenty-one years of age on November 10, 1886, and, thereupon, demanded said legacy of $20,000 from William W. Mills, the sole surviving executor of the'testator, who, it is alleged by the plaintiff and not denied by the defendants, was insolvent and unable to pay the same. Thereafter, and on January 18, 1887, this action was commenced by the service of a summons upon the present defendants and Josephine Mills, who having subsequently died, her personal representatives were substituted in her place.

The amended complaint charges that the defendants and the said Josephine did unlawfully induce and cause the surrogate of Suffolk county to admit said will to probate without said surrogate appointing a special guardian of the plaintiff, and without issuing or serving citations on the plaintiff or his special guardian to appear and attend the probate of said will, and did induce and cause said surrogate to issue letters testamentary to said Washington, William W. and Eliza A. Mills without their giving a good and sufficient bond, although they were incompetent to serve as executors and trustees by reason of improvidence and insolvency; also that by reason of the plaintiff’s not having a guardian, said executors unlawfully procured possession of said sum of $20,000; also that the defendants and said Josephine unlawfully agreed and contrived to and with each other to a pretended appraisal of the property of the testator, and made and filed a pretended appraisement by persons •selected and appointed by said parties, who were not appointed by said surrogate; that the plaintiff did not consent to said pretended appraisement and had no notice of the same, and that the persons pretending to act as appraisers did not make a true and perfect inventory of the goods, chattels and credits of the testator ; also that defendants and said Josephine wrongfully and unlawfully contrived together to prevent the said legacy of $20,000 from being discharged or caused to be discharged by said surrogate and from being properly invested; also that the defendants, the said Washington and Josephine, together contriving, unlawfully caused and induced said surrogate to settle the accounts of the said executors and to make a final decree upon the consent in writing of the said parties, without notice to or citation of the plaintiff; also that the executors and trustees failéd to appropriate the said sum of $20,000 and to loan the same from time to time on bond and mortgage; also that during the month of April, 1872, the said executors and defendants and said Josephine, with intent to defraud the plaintiff, contriving together, distributed all the estate of the testator among themselves, and appropriated to their own use and benefit, in disregard of the rights of plaintiff, the said sum of $20,000. Wherefore, the plaintiff demands judgment that said pretended appraisement and inventory be declared irregular, fraudulent and void, and set aside as against the plaintiff ; that the decree of the surrogate settling the accounts of the executors and all proceedings on and under the same'be declared irregular, fraudulent and void, and set aside as against the plaintiff ; that the transfer and distribution of the estate of testator be adjudged fraudulent and void as against the plaintiff; that' the plaintiff be adjudged to be the beneficiary under the trust created as aforesaid and to have the sole right to receive said fund absolutely ; that the defendants be declared to have fraudulently appropriated said $20,000 to their own use, and that they be adjudged to hold the same in trust for the plaintiff; that the defendants and. each ,of them be adjudged to account for all of said property or money received by them or either of. them. There is also a prayer for an injunction and for the appointment of a receiver of said fund.

When the case came on for trial at special term, counsel for plaintiff, in opening, said: “ There is an allegation of fraud in the complaint, which we desire to withdraw ; we propose to proceed upon the ground of constructive fraud only.” Counsel for defendant then said: “We do not consent to it; although we have no objection to having your request put down upon the record.” Thereupon the trial proceeded. The plaintiff put in evidence proceedings had in the surrogate’s court in Suffolk county in the years 1866 and 1867, and in 1871 and 1872 ; called and briefly examined William W. Mills, said sole surviving executor; made offers of certain proof, which were objected to by defendant’s counsel, and excluded; and then rested his case. On motion of defendants’ counsel, the court thereupon dismissed the complaint; and from the judgment entered in favor of the defendants this appeal is taken.

We have carefully examined the bulky record presented upon this appeal, and we are. unable to find any evidence whatever which tends to sustain the allegations of fraud contained in the complaint. The learned counsel for the plaintiff himself appears to have concluded that such allegations of fraud could not be sustained, because, as above stated, he declared in open court that he desired to withdraw such allegations, and proceed upon the ground of constructive fraud only. In view of the allegations of the complaint, and the evidence given upon the trial, we are in some doubt as to what counsel for the plaintiff meant by such statement. Fraud is either actual or constructive, and it is said that constructive or legal fraud may exist (1) where some settled rule of public policy is violated, or (2) where the parties occupy some special confidential or fiduciary relation. (Am. and Eng. Encyc. of Law, Vol. 8, p. 646). Not only was no evidence given upon the trial which tended to prove that the defendants had been guilty of actual fraud, but no evidence was given which tended to prove either that any rule of public policy had been violated by the defendants, or that they occupied any special confidential or fiduciary relation towards the plaintiff.

We have also carefully examined the elaborate brief of plaintiff’s counsel, but we fail to discover any grounds upon which the plaintiff was entitled to the relief prayed for in his complaint, or to any relief whatever in this action. The learned and industrious counsel has presented in his brief many propositions as to the law relating to the duties of executors and trustees, the rights of legatees, the practice in surrogates’ court, and other cognate subjects, and has cited numerous authorities which abundantly support many of such propositions. The difficulty is, however, that, in our view, most of such propositions and authorities are not applicable to the case at bar. Notwithstanding the statement above mentioned of plaintiff’s counsel, at the commencement of the trial, that he desired to withdraw the allegation of fraud, in his requests to find submitted to the special term, and in his brief, such counsel renews the charges of actual fraud contained in the complaint; but, as above stated, not a scintilla of evidence was given upon the trial which in aúy degree tended to support such charges of actual fraud ; on the contrary, such evidence affirmatively showed that the parties who defend this action acted throughout in good faith ana without intent to defraud the plaintiff. Assuming, however, notwithstanding the hard names applied to the defendants, that what plaintiff’s counsel really intends to claim is that defendants, whether actually intending or not to defraud the plaintiff, did, by certain acts and omissions on their part, prevent the plaintiff from receiving such legacy of $20,000, and, therefore, ought to pay the same to him out of the moneys which they received under the will of the testator, and assuming that the court could disregard the allegations of actual fraud which are contained in the complaint, and grant the relief therein prayed for, if the evidence justified the granting of such relief, the difficulty is that the evidence does not, in our opinion, establish any cause of action against the defendants who have appeared and defend the action.

The plaintiff’s counsel upon the trial put in evidence certain proceedings had in the surrogate’s court in Suffolk county, in the years 1866 and 1867. It appears by the record of those proceedings that, the executors having failed to file any account within eighteen months after their appointment, four of the children of the testator, Horatio, Wilfred, Josephine and Amanda M., instituted proceedings to compel an accounting. Thereupon the executors presented accounts, to which objections were filed. Subsequently, while such proceedings were pending, a further petition was presented, setting forth the decease of the testator’s widow, and praying for the distribution of the $50,000 held in trust for her during her life. Finally, by consent of all the parties, an order was entered by the surrogate on May 30, 1867, which recited that, the executors having made distribution of the further sum of $42,000 among the six residuary legatees, by consent of all the parties, the proceedings were discontinued, and the executors had leave to withdraw the accounts rendered by them.

It appears by the accounts presented by the executors during these proceedings that prior thereto a large portion of the residuary estate had been distributed among the six residuary legatees. Such 'accounts also stated that the executors had set apart as trust funds $35,000.

Plaintiff’s counsel also put in evidence a copy of the record of proceedings had in said surrogate’s court in the years 1871 and 1872. The petition upon which these proceedings were instituted is not in the case, but it appears by an order which was finally entered that such proceedings were instituted by the four children of the testator who instituted the above mentioned proceedings in 1866. In the course of these proceedings the surviving executors Washington and William W. Mills presented a report to the surrogate, to which were attached elaborate schedules. Such report contains the following: 11 On the 13th March, 1865, we set apart $85,000 of said personal estate as a trust fund for the benefit of Mrs. Eliza A. Mills, the widow, and of Theodore and Oscar J. Mills, two of the sons of said deceased, as provided by said will. * * * Schedule E. contains a statement of the securities set apart for the trust fund for the benefit of Theodore and for Oscar J. Mills, two of the legatees named in said will. Eliza A. Mills having died, the $50,000 of securities set apart the 13th March, 1865, for her benefit, have been divided in part, and form part of the divisions herein above set forth.

"By request of the residuary legatees, the executors paid to the said widow Eliza A. Mills, and to Oscar and Theodore, interest on the principal sums bequeathed for their benefit from the time of the testator’s death, and the items of such payments are set forth in schedule D.” Schedule D contains an item of $786 stated to have been paid to Theodore J. Mills on January 6, 1866, on account of his annual income. Said schedule D also contains an item of $570 stated to have been paid by the executors on the same date to Oscar J. Mills on account of his annual income. Schedule E is headed as follows :

“ Trust fund of Theodore F. and Oscar J. Mills. The principal of the following bonds and mortgages draw the accruing interest from January 6, 1866, and are appraised at par and set apart as a trust fund by the surviving executors on this day, January 6, 1866.”

Then follows a list of four bonds and mortgages aggregating $20,000, stated to have been set apart for Theodore F. Mills; and also a list of four bonds and mortgages aggregating $15,000 which are stated to have been set apart for Oscar J. Mills. The report and schedules were verified by the two executors on April 22, 1871. Subsequently objections were filed to some of the accounts, and thereafter quite an amount of testimony was taken before the surrogate at various times between June 22, 1871, and July 12, 1871. On April 8, 1872, a decree -was made by the surrogate settling the accounts of the executors. Among the items with which they are credited in the decree is the following:

“ The amount of trust funds set apart for Theodore F. Mills and Oscar J. Mills under provisions of will, as shown by schedule E, $35,000.”

It does not appear by the papers before us whether or not the plaintiff, or his father, were cited to appear upon these proceedings. Assuming, however, as is claimed by plaintiff’s counsel, that the plaintiff was not cited, and did not appear, and that no guardian was appointed for him, we fail to see that the defendants who defend this action did or omitted to do anything which renders them liable to make good to the plaintiff said legacy of $20,000.

As above stated, there is not a scintilla of evidence that the residuary legatees, other than the two executors, Washington and William W., were guilty of any actual fraud, or had any intent to defraud the plaintiff. Both the proceedings taken in 1866 and in 1871 were instituted at their instance; and in both proceedings, so far from such four residuary legatees being in collusion with the executors to defraud the plaintiff, such residuary legatees occupied an attitude hostile to the executors, and were vigorously engaged in protecting their own rights. Such four residuary legatees certainly had every reason to suppose that the $20,000 trust fund had been set apart by the executors, and was held by them. The executors so stated in the accounts filed by them in 1866, and in the report made to the surrogate in 1871, and the schedules attached to the latter report gave in detail all the particulars in relation to the bonds and mortgage stated to have been set apart for, and which constituted such trust fund of $20,000. Neither the plaintiff nor his father had any interest in the residuary estate. • By the terms of the will, if such trust fund was once set up, Washington and William W. Mills were to hold the same as trustees, and neither the plaintiff nor his father had any right to be heard as to what disposition should be made of the residuary estate. No reason is suggested why the said four residuary legatees should have desired that the plaintiff should not have notice of the accounting, or why they should desire that no special guardian should be appointed for him ; and there is no evidence whatever tending to show that said four residuary legatees intentionally did, or omitted to do anything with the intent to defraud the plaintiff.

The first charge of the complaint is that the defendants and Josephine Mills, deceased, unlawfully induced the surrogate to admit the testator’s will to probate without the said surrogate appointing a special guardian to take care of the interests of the plaintiff, and that said defendants induced the surrogate to issue letters testamentary to the executrix and executors without their giving a bond for the faithful execution of their trust

As above stated, the will was admitted to probate on January 26, 1865, and the plaintiff was not born until November 10,1865; and it would, therefore, be a sufficient answer' to this particular charge that the plaintiff was not in existence at the time the will was admitted to probate: and even if he had been, the said defendants would have been under no legal obligation to havp a special guardian appointed for the plaintiff, or to take steps to compel the executrix and executors to give bonds before letters testamentary were issued to them.

The second charge of the complaint is that by reason of the plaintiff’s not having a guardian to take care of his interest, and to make objections against the granting of such letters testamentary, the executrix and executors unlawfully procured possession of said sum of $20,000.

As the relator was not in existence when such letters were granted, and as the will of the testator expressly gave to the executrix and executors said sum of $20,000 to hold in trust, we are unable to see what foundation there is for the charge that they unlawfully procured possession of said sum of $20,000.

The third charge is that the defendants and said Josephine Mills unlawfully agreed and contrived to and with each other to a pretended appraisal 'of the property of the testator, and made and filed in pursuance thereof a pretended appraisement by persons selected and appointed by said parties ; that plaintiff did not consent to said appraisement or appointment and had no notice of such appraisement

There is no evidence which tends to show that there was anything wrong in regard to such appraisal and inventory. On the contrary, it appears that the appraisal and inventory were made, in the manner they were, at the request and in the presence of all the parties in interest. The estate amounted to several hundred thousand dollars, and there was but $2,000 of debts ; $50,000 was to be held in trust for the widow during her lifetime, and $35,000 in trust for Theodore and Oscar. All the residue of the estate belonged absolutely to the other six children, and it is in the highest degree improbable that they were parties to an appraisal which was not a fair one; and although the said four residuary legatees had contests with the executors about other matters, it does not appear that there was any complaint about the appraisal or inventory. Moreover, the duty of having the appraisal made, and inventory filed, did not devolve by law on said four residuary-legatees, but upon the executrix and executors; and the said residuary legatees were under no legal obligation to the plaintiff to see that the appraisement was made and the inventory filed in the exact manner required by the statute.

The fourth and fifth charges are that the defendants and Washington and Josephine Mills, deceased, wrongfully and unlawfully contrived together prevent the legacy bequeathed to the plaintiff from being discharged or caused to be discharged, and from being properly invested; and, contriving unlawfully, did cause and induce the surrogate to finally settle the accounts of the executors and enter a decree, without notice to, or citation of, plaintiff.

The petition upon which the accounting was had in 1871 and 1872 is not among the papers before us, nor is there anything to show whether or not the plaintiff was cited. It appears by the recitals in the decree which was entered, that the accounting was had upon the petition of Horatio W., Wilfred I. and Josephine Mills, and Amanda M. Smith. But assuming that the plaintiff was not cited, we do not see how that fact makes the 'said petitioners, or their estates, liable for the loss of his legacy.

It is claimed by plaintiff’s counsel that the surrogate was misled by certain statements in the accounts of the executors; that such statements were untrue, and that it was the duty of said petitioners to have corrected such misstatements, and to have brought to the attention of the surrogate the fact that plaintiff had a vested interest in said legacy. The statements complained of are the following: “ Schedule Gr contains a statement of all persons entitled, as widow, legatee, or next of kin of the deceased, to share in his estate, with the places of residence and relationship to deceased. All are of full age.” Schedule Gr is headed: “ Statement of the residuary legatees, with their residence.” We do not see that there was anything in this statement, or schedule, which could possibly have misled the surrogate. Upon its face it purported to be only a statement of the persons interested in the residuary estate, and it was strictly true; for neither the plaintiff nor his father, who was then alive, nor Oscar J. Mills, had any interest whatever in such residuary estate. Moreover, there could have been no intent on the part of the executors to mislead the surrogate, because, as above stated, it was explicitly Set forth in the report, and in the schedules, that bonds and mortgages to the amount of $20,000 had been set apart for the benefit of the plaintiff’s father. Besides, there was no legal duty upon the part of the residuary legatees other than the executors to look after the interests of the plaintiff.

Again, if specific bonds and mortgages to the amount, and of the value of $20,000, were actually set apart by the executors as a trust fund for the benefit of the plaintiff’s father, and either before such final accounting, or afterwards, were lost or misappropriated by the executors, the plaintiff has no claim by reason of such loss or misappropriation against the other residuary legatees. The testator in his will did not in terms appoint trustees of said $20,000 fund ; he merely gave to his executrix and executors the sum of $20,000, to be taken by them out of his personal estate and held in trust It was not necessary to the full and valid discharge of the duties imposed upon the executrix and executors, in relation to this trust, that there should be any formal inventory or appraisal of the securities set apart for the trust, nor ' that there should be any action taken by the surrogate in relation thereto. It was competent for the executors and executrix to take any of the personal estate which yielded income, and set it apart, so that it would constitute the principal of said trust. The evidence is that they took bonds and mortgages, which were part of the personal estate left by the testator, and set them apart for the purposes of this trust The fact that the trust fund had been set apart was stated in the accounts filed in 1866, and the full details as to when the fund was set apiart, and of what it consisted, were given in the accounts filed in 1871 and 1872; and both these accounts were put in evidence by plaintiff’s own counsel without qualification or restriction. Moreover, plaintiff’s counsel called as a witness William W. Mills, the sole surviving executor, and he testified as follows: “I am one of the executors under the last will and testament of William Wickham Mills, deceased; I received the mortgages and securities that were set aside for the trust fund by me for Theodore. Mills, the father of the plaintiff in this action ; I took them out of the safe with my brother, Washington Mills, one of the executors, and then he took charge of it; I never did anything with them thereafter except as I have just stated; I never had any control over them.” Upon this evidence ■we must hold that the trust fund of $20,000 was set apart, and that whether the plaintiff was, or was not, cited upon the proceedings which resulted in the final decree settling the executors, accounts, he has no claim against the residuary legatees who de fend this action.

It is, however, strenuously urged by plaintiff’s counsel that the fund never was set apart, because the executors had no right to set apart anything but money. In this we" think the learned counsel is mistaken. Nothing is said in the will about the executors setting apart money for the purposes of the trust As above stated, they were simply given the sum of $20,000, to be taken by them out of the testator’s personal estate. The fact that the will declared that they were to loan the same from time to time on bond and mortgage on real estate, does not necessarily imply that it was their duty to sell the securities left by the testator, and reinvest the proceeds.

The last charge in the complaint is that in April, 1872, the executors and the defendants and Josephine Mills, with an intent to defraud the plaintiff, distributed all of the estate, and appropriated the same, to their own use and benefit, in disregard of the rights of the plaintiff.

As above stated, we think the evidence shows that the trust fund had been set -apart, and there was no reason why the remainder of the estate should not be distributed. Briefly stated, the situation of affairs is this: In 1865 the executors set apart bonds and mortgages of the value of $20,000 to constitute the trust fund of $20,000; and so far as appears from the papers before us, there is no evidence of what became of that fund, except that Washington Mills took charge of it At various times between the probate of the will and the year 1872 the .residuary estate was distributed. The plaintiff’s father lived until 1886, and soon after his death the plaintiff called on William. W. Mills, the sole surviving executor, and demanded the $20,000 legacy. Said Mills was insolvent and could not pay it. Washington Mills, the other executor, who probably misappropriated the fund, died years ago, insolvent; the widow and executrix died in 1865. And now the plaintiff wishes to have the 'other residuary legatees make good his legacy. But whether we take the view that there is no evidence in the papers before us as to what became of the fund, or assume that Washington Mills misappropriated it, we are of the opinion that the complaint was properly dismissed, and that the judgment should be affirmed, with costs.

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


author: Per Curiam.

text:
    Charles Smith et al., Resp’ts, v. The Seattle, Lake Shore & Eastern Railway Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 29, 1892.)

    Motions and orders—Service of papers.
    Where all the papers to be used on a motion are not served, and objection on that ground is made on the hearing, the motion should be denied. It is no answer to such objection that the party moved against should have asked that the papers be served. But the moving party, to avoid the objection, should ask leave to serve them on terms.
    Appeal from an order granting plaintiffs’ motion for a discovery and inspection of a certain written report, and denying defendant’s motion to vacate an order to show cause, on which said order was founded.

      Henry Stanton, for app’lt; Gilbert D. Lamb, for resp’ts.
   Per Curiam.

—We think the papers served on this motion were fatally defective. The allegations of the petition were upon information and belief as to some of the matters material to the application and on writings not annexed to the petition as served. If the rule requiring all papers to be served which are to be used upon a motion means anything, it should have been complied with in this case, and the objection having been taken on the hearing it should have prevailed. It is not a sufficient answer to say that the party moved against should have asked that the papers be served on it, but rather that the moving party should have asked for leave to serve them on such terms as to the court might seem fit. The objecting party was in no wise in default. Both parties placed themselves on their strict legal rights, and under such circumstances no reference could be made without such service, and without such reference the petition of the plaintiffs was not sufficiently supported.

The order is reversed, with ten dollars costs and disbursements of the appeal.

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


author: Coleman, S.

text:
    In the Matter of Proving the Last Will and Testament of Frances E. Purdy, Deceased.

      (Surrogate's Court, Orange County,

      Filed January 27, 1892.)

    Will—Probate.
    Two instruments, complete in form, upon a four page blank, were offered for probate. One disposed of money and specific article's, and the other of specific articles alone. They were drawn by testalrix and were the same in all respects except as to the legacies and were not dated. The subscribing witness testified that one was executed some months before the other, but she had only an impression as to which was executed first. It appeared that after one was executed testatrix received property from her sister which consisted wholly of household furniture. Held, that as the will bequeathing articles alone-was.not a complete disposition of testatrix’ property, it must be deemed the last one executed and the clause of revocation ignored under the circumstances, and that the will disposing of money should be admitted as the will of testatrix and the other as a codicil.
    Proof of will.

      B. R. Champion, for petitioner, a legatee, the executor being dead; C. W. Coleman, special guardian, for minor next of kin; J. B. Sweezy, special guardian, for minor legatees.
   Coleman, S.

—Frances E. Purdy died on the 13th day of October, 1891, a resident of the city of Middletown, in this county, having an estate of about $5,000, all personal property.

Two instruments, upon a four page sheet of paper, each instrument in form a complete will, are offered for probate as the will of the deceased.

Upon one page and its reverse is printed the usual blank form of a will, and upon the succeeding page and its reverse is another printed blank form of a will. The two leaves of the sheet have never been torn apart. The only portions of each printed form that are filled in are the large spaces- following the printed words, “ First, after- all my lawful debts are paid and discharged I give and bequeath," the blank left for the name of the executor and the blank, for the year. In the first of these spaces in each instrument is a list of legacies; in one seventeen legatees are named and five in the other, four of them occurring in both instruments. The same executor is named in both and both bear date the-day of-, 1891. Each instrument is a copy of the other except the portion containing the names of the legatees and description of the legacies. In the instrument naming seventeen legatees, there is a legacy of $500, two of $400, one of $300, several of $200, $150 and $100, amounting in all to the sum of $2,600. The remaining legacies are of specific articles, principally of household furniture. In the other the legacies are all of specific articles of household goods and are of articles not mentioned in the other. Both instruments have in 'the printed portion the usual clause revoking all former wills.

The subscribing witnesses are the same to both instruments, one of them being now dead. The surviving witness in both cases filled in the blanks left in that clause in the printed form. This witness testifies that one was executed several months before the other, but she is unable to tell which one was executed first; she thinks, however, that the one giving a gilt mirror was executed last, because she thinks the deceased did not have the mirror at the time the first instrument was executed. The instrument in which the gilt mirror is given is the one containing the gifts of money. The deceased and both witnesses were women well advanced in life, and there is no evidence that either of them had any previous experience in such matters, or that either had any knowledge of the legal requirements for the preparation and execution of a will.

The subscribing witness testifies that the deceased, before the execution of the second instrument, said : ‘‘ I have changed my will; I have added to it, and I want you to come and give me your signature again; ” she also testifies that the testatrix said at the time of the execution of the last instrument, “ this is another part of my will, an addition ; I have some other things to will away.”

The only provision in either instrument in the nature of a residuary clause is found in the one giving legacies of money, and occurs near the end of the written part, and after the gifts of money. It is as follows: “ After all my debts are paid, the remainder of the money to be equally divided between the different heirs mension in the will of money.” Then follow other legacies of specific articles.

The written portion of the other instrument, after the printed words “I give and bequeath,” reads: “The following articles to my different nieces mension in this will;” then follow legacies of specific articles of household goods to five persons, and these legacies are the only ¡provisions in this instrument relating to property.

It is laid down as settled law in Wins, on Exec., page 166: “ If two inconsistent wills be found of the same date, or without any date, and no evidence can be adduced establishing the posteriority of the execution of either, both are necessarily void, and the deceased must be considered intestate. But in every case the courts will struggle to reconcile them if possible, and collect some consistent disposition from the whole.”

The evidence of the surviving subscribing witness establishes beyond question that these two wills were not executed at the same time, but she only has an impression as to which was executed first. I am satisfied that the witness is wrong as to this fact. It is altogether more probable that the testatrix executed first the instrument in which there is apparently a complete disposition of her estate; especially in view of the fact, which is conceded to be true, that the property received by her from her sister after the execution of the first instrument consisted largely of household furniture, and did not greatly augment her estate, and this isl n harmony with the remark made by her at the time of executing the second instrument that she had some other things to will away. Parol evidence of these facts was admissible, as it related to an ambiguity upon the factum of the instruments. Wms. on Ex’rs, 353.

This being true, then it results, if full force is given to all the provisions of the second instrument, particularly of the clause revoking all former wills, that the first or principal will is revoked and the latter, which only makes a partial disposition of the estate, will be substituted in its place, thus leaving the deceased intestate as to the greater portion of her estate. A careful reading of the disposing portions of the two instruments and the remarks made by the testatrix at the time of the execution of the second, will, I think, show that such was not her purpose, but rather that one instrument was to supplement the other. This purpose, if possible within the provisions of the law, should be sustained.

Courts do not confine the testamentary disposition to a single instrument, but they will consider several, of different natures and forms and dates, as constituting together the will of the deceased. The form of an instrument is not controlling; it may be intended for a deed and yet operate as a will. And a subsequent will does not necessarily work a total revocation of a former one unless the latter expressly or in effect, by, being inconsistent with it, revoke the former. These are well settled legal principles; I have however been unable to find a case in which an instrument containing an expressed revocation of former wills was held not to revoke such former will.

It is a maxim that “ ño man can die with two testaments; ’’ and Sir H. J. Fust in Plenty v. West, 1 Robert, 264, said that he knew of no case where a testator called a will “his last will,” in which the court held former papers to be included. The authority of this case, at least to the extreme point to which the law is there-carried, has been questioned. Wms. on Ex’rs, 163, note c.

It was held in Nelson v. McGiffert, 3 Barb. Ch., 158, that when a later will is inconsistent with a former will in some of its provisions merely, it is only a revocation pro tanto. See also Brant v. Willson, 8 Cowen, 56; Newcomb v. Webster, 113 N, Y., 191; 22 St. Rep., 955; and in Harwood v. Goodnight, Cowp., 87, Ld. Mansfield said: “If there is a complete second will, it cannot do otherwise than revoke a former will; but if it is only a variation or subtraction from a former will, it is in the nature of a codicil.” The very meaning of the word codicil, as now used, is something annexed or added. Wms. on Ex., 8.

In Thomas v. Evans, 2 East, 488, the testator made his will whereby a complete disposition of his property was made. Subsequently he acquired an interest in other real estate, and then -made another will which read: “ This is the last will and testament of me,” etc., etc., and therein devised his interest in his subsequently acquired real estate, and concluded the will with these words: “ As to the rest of my real and personal estate, I intend to dispose of the same by a codicil to this my will hereafter to be made.” The testator died without making the codicil. Held, “it is not enough to say that by making this will in terms large enough to include all his property, he must therefore have meant to revoke his former will, unless it be shown that he has made a disposition of this property inconsistent with it, * * * but even if this had imported an intention to revoke by making a different disposition in the future, it would not have amounted to a revocation.” Both instruments were admitted to probate, as together constituting the will of the deceased. And in In the goods of Astor, L. R., 1 P. Div., 150, a late case iu England, where an American had, by a will and codicils, disposed of his property generally, arid by a second will', in which he named separate executors, had disposed of moneys invested in the British funds, the second will was admitted to probate as part of the testator’s will. See also Ex parte Lord Ilchester, 7 Ves., 372.

There must always be an intention to revoke. Acts which of themselves would ordinarily indicate an intention to revoke may be proved not to have been so intended; as when a testator set about to destroy his will, and had actually partly torn it, but was persuaded from completing the destruction of the instrument; or having two wills, the testator unintentionally destroyed the wrong one, or the will was accidentally destroyed. So also, conversely, where by a statute a previously made will is revoked by certain acts of a testator, as in the case of a single woman who, having made her will, subsequently marries, a publication of a codicil to the will subsequently to the marriage re-publishes and establishes the will. Brown v. Clark, 77 N. Y., 369.

The cases cited, while not directly in point, however, do show the purpose of the courts to ascertain and as far as possible to carry out the intentions of testators. There probably has not arisen in the courts a case similar to the one now presented and could not very well have arisen until the present day of printed blank forms of wills. It is quite probable that Miss Purdy, having procured the blank form, in her inexperience gave very little attention to the printed portion of it, but confined her attention, rather, to what was necessary to be' written to show her wishes in regard to the disposition of her property, supposing, as she might reasonably do, that if this was plainly stated the rest was unimportant. And it is in this view of the case that I have concluded that it is proper to ignore that part of the second instrument in which it is stated that all former wills are revoked, also having in mind the familiar legal principle that where words of a particular legal meaning are used by an unskilled person, in a different or even opposite sense from that ordinarily given them, that meaning and effect will be given them by the court which it is evident they were intended to have.

The instrument in which legacies of money are given will, therefore, be admitted as the will of the deceased and the other as a codicil thereto.