author: Bradley, J. Ward, J.

text:
    City of Buffalo, App’lt, v. Alfred H. Neal, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 12, 1895.)

    Statutes — Repeal.
    The provision of section 333, chap. 636 of 1893 repeals the provision of the Buffalo city charter, which provides that all fines and penalties imposed • by the justice of the city and collected by the keeper of the Erie county pentitentiary, shall be paid over by him to the city treasurer.
    Submission of the cause without action upon an agreed statement of facts.
    The submission is as follows :
    Whereas, a controversy exists between the city of Buffalo, of the one part, and Alfred II. Neal, of the other part, as follows: The city of Buffalo claims that said Alfred H. Neal was indebted unto it in the sum of $5,546.05, being the amount of fines and penalties collected, by him from prisoners duly sentenced to the Erie county penitentiary, of which he is keeper, for violation of ordinances of the city of Buffalo, which he has failed and neglected to pay over unto said city. And whereas, up'on his part, the said Alfred H. Neal claims that he is not liable to pay such lines and penalties, or any of them, over unto the said city. And whereas, the said parties have agreed to submit the said controversy to the supreme court of the state of New York, fifth department, under the provisions of article 2, title 2, chap. 11, of the Code of Civil Procedure: Now, therefore, the following facts are
    conceded and stipulated by said parties, for the purpose of such submission, to wit:
    First. That the plaintiff, the city of Buffalo, is a domestic corporation duly incorporated by and under the laws of the state of New York, being chapter 105 of the Laws of 1891.
    Second. That the defendant, Alfred H. Neal is, and at all the times hereinafter mentioned was, keeper of the Erie county penitentiary, duly elected, qualified and acting as such, which penitentiary is located in the city of Buffalo aforesaid.
    Third. That from the 10th day of April, 1894, to the 1st day of January, 1895, inclusive, the defendant, Alfred H. Neal, as such keeper of the Erie .county penitentiary, collected and received from prisoners duly committed to the Erie county penitentiary, on executions duly issued upon judgments for fines duly imposed and entered against such prisoners within the city of Buffalo, by justices of the police of the city of Buffalo, fines and penalties theretofore duly imposed by such justices to the extent and amount of $5,546.05, — such prisoners having been delivered • to such keeper upon such executions, and upon the failure of the prisoners to pay the judgment and fines; and said defendant has not paid over said sum, or any part thereof, to the treasurer of the city of Buffalo, but retains the same in his possession.
    Fourth. The questions submitted to this court upon this case are as follows:
    Was it and is it the duty of the defendant, Alfred H. Neal, as such keeper of the Erie county penitentiary, to pay over said fines and penalties to the. treasurer of the-city of Buffalo every week, pursuant to the provisions of section 385 of the charter of the city of Buffalo ? which provides as follows: “ All fines and penalties imposed by any or either of said justices, collected by them or the keeper of the Brie county penitentiary, or otherwise, shall be paid over every week, by the person receiving the same, to the treasurer of the city of Buffalo, and be by said treasurer credited to the police fund of the said city for the use and benefit thereof.”
    Or was it and is it his duty to pay said moneys over to the treasurer of Erie county, pursuant to the provisions of sections 233, 234, chap. 686, of the Laws of 1892, which became of force May 18, 1892 ? and which are as follows:
    “Sec. 233. Annual Report of Connty Officers. — Each county officer who shall receive, or is authorized by law to receive, any money on account of fines or penalties or other matter in which his county, or any town or city therein, shall have an interest, shall annually make a written report to the board of supervisors of his county, verified to be true, bearing the date the first day of November, stating the time when, and the name of every person from whom, such money has been received, the amount thereof, on what account received, and the sums remaining due and unpaid ; and if no such money has been received, his report shall so state. Such report shall be filed with the clerk of the board on or before the fifth day of November ; and no officer shall be entitled to receive payment for.his services, unless he shall file with the supervisors, or other officers performing their duties, his affidavit that he has made such report, and paid over all moneys which he was required to pay over, within ninety days after receiving any such money, such officers shall pay the same without any deduction to the treasurer of his county, who shall execute duplicate receipts therefor, one of which he shall deliver to the person paying the money, and attach the other to bis annual report herein required; but nothing herein shall be construed to apply to moneys received by any town or city officer in his official capacity, as such, specially appropriated for" any town or city purpose.
    “ Sec. 234. Recovery and Disposition of Money. — The district attorney shall sue for and recover in behalf of, and in the name of, his county, the money received by any officer for, or on account of, his county, or any town or city therein, and not paid to the county treasurer as herein required. All moneys belonging to any town or city in such county, which shall be received by the county treasurer, shall be distributed to the several towns or cities entitled to the same, by resolution of the board of supervisors, which shall be entered in the minutes of its proceedings.”
    Fifth. The plaintiff claims and contends that it was and is the duty of the defendant to pay said moneys over to the treasurer of the plaintiff, pursuant to the provisions of its charter above quoted; and the defendant claims and contends that it was and is his duty to pay said moneys over to the treasurer of the county of Erie, pursuant to the provisions of law above quoted.
    Sixth. If the court decides that it was the duty of the defendant to pay said moneys over to. the treasurer or the plaintiff, then judgment is to be rendered in favor of the plaintiff and against the defendant for said sum, without costs; and, if the court decides that it was not the duty of the defendant to pay said moneys over to the treasurer of the plaintiff, then judgment is to be rendered in favor of the defendant, without costs.
    Seventh. It is expressly understood and agreed that the plaintiff, by consenting to stipulate this case, does not waive any right or cause of action that it may have against the defendant to recover fines or penalties previously collected and received by the defendant, nor shall the bringing of this action, or the judgment or determination hereof, be treated as a defense or bar to any action that may be brought against the defendant by the plaintiff on account of such previously collected fines and penalties.
    In testimony whereof, the city of Buffalo has caused these pres-

      ents to be subscribed by its corporation counsel, Frank 0. Laughlin, pursuant to a resolution of the common council, and the defendant has hereunto set his hand, this 4th day of January, 1895.
    City of Buffalo,
    By Frank 0. Laughlin, Its Corporation Counsel,
    . A. H. Neal.
    The submission was accompanied by the required affidavit of one of the parties, and was duly acknowledged.

      Frank C. Laughlin, for pl’ff; James L. Quackenbush, for def't.
   Bradley, J.

The defendant, as keeper of the Erie county penitentiary, received, during a specified period, $5,546.05 from prisoners committed to that institution by virtue of executions • issued on judgments for fines imposed and entered against them, within the city of Buffalo, by justices of the police of that city, on the failure of the prisoners to pay the judgments. The defendant retains that money in his possession. Whether or not it is the duty of the defendant to pay that money to the treasurer of the city of Buffalo is the question to be determined. By the charter of the city it is provided that:

“All fines and penalties imposed by any or either of said justices, collected by them or the keeper of the Erie county penitentiary or otherwise, shall be paid out every week by the person receiving the same, to the treasurer of the city of Buffalo, and be by the said treasurer credited to the police fund of said city for the use and benefit thereof.” Laws 1891, chap. 104, § 385.

The duty of the defendant to pay the money to the treasurer of the plaintiff would not be questioned, if it were not for a later > statute, which provides that:

“Bach county officer who shall receive, or is authorized by law to receive, any money on account of fines or penalties or other matter in which his county, or any town or city therein, shall have an interest, shall annually make a written report to the board of supervisors of his county, verified to be true, bearing date the first day of November, stating the time when, and the name of every person from whom, such money has been received. * * * Such report shall be filed with the clerk of the board, on or before the fifth day of November; and no officer shall be entitled to. receive payment for his services, unless he shall file with the supervisors, or other officers performing their duties, his affidavit that he has made such report, and paid over all moneys which he is required to pay over,- within ninety days after receiving any such money, such officers shall pay the same without any deduction to the treasurer of the county, * * * but nothing herein shall be construed to apply to moneys received by any town or city officer in his official capacity, as such, specially appropriated for any town or city purpose.” Laws 1892, chap. 686, section 233.

Also:

“The district attorney shall sue for and recover, in behalf of and in the name of his county the money received by any officer for or on account of his county, or any town or city therein, and not paid to the county treasurer as herein required. All moneys belonging to any town or city in such county, which shall be received by the county treasurer, shall be distributed to the several towns or cities entitled to the same by resolution of the board of supervisors which shall be entered in the minutes of its proceedings.” Id. §234. _

_ The keeper of the Erie county penitentiary is a county officer, and if the provisions of the last mentioned act are applicable to him, in respect to the fund in question, his duty is to pay it to the treasurer of that county. This cannot be so, unless those provisions of the charter before mentioned, so far as relates to the manner of receiving the money, were rendered inoperative by force of those of the later act. It is the well-settled and prevailing rule applicable to the construction and effect of statutes, in their relation to each other, that repeal by implication is not favored, and that the provisions of a local or special act will not be deemed repealed by a later general enactment, unless it is manifest that such is the legislative intent, although the provisions of the latter are in terms sufficiently comprehensive to embrace the subject of the special or local one, and, in its absence, would do so. In re Evergreen, 47 N. Y. 216 ; In re Commissioners of Central Park, 50 id. 493 ; People v. Quigg, 59 id. 83 ; Whipple v. Christian, 80 id. 523 ; Buffalo Cemetery Ass'n v. City of Buffalo, 118 id. 62 ; 27 St. Rep. 749. The act of 1892 is known as the “County Law.” It was intended as a codification of the laws on the subject to which it relates, and thus to embrace the entire statutory system, governmental and otherwise, of the counties of the state, other than the -county of New York, in a single chapter. And by its provisions in question the purpose evidently was to render the action of this class of officers of the several counties subject to the supervision of the board of supervisors, so far as relates to moneys which should come into their hands, whatever should be the ultimate disposition of the funds. By their terms, those provisions appear to be no less applicable to Erie county than to other parts of the state. There is therefore an apparent repugnancy. The plaintiff’s charter provides that such money, so received by the keeper of Erie county penitentiary, shall be paid by him to the city treasurer weekly, while the later general act provides that he shall pay such moneys to the county treasurer. There is. nothing in the act of 1892, other than in its general scope and purpose, bearing upon the question whether it has superseded the provisions in question of the city charter. But, to effect the repeal by implication of provisions of a statute by those of a subsequent one, it is sufficient that they are necessarily repugnant. This does not follow merely because they cover the same subject, and in the absence of either, the other would be operative upon it. The repugnancy which has the effect to retire provisions of the former statute is dependent upon the intent of the later one, as manifested, in its purpose. In determining the question of the comprehensive effect intended by the act of 1892, the fact that it was designed as a code of statutory law relating to the counties of the state is entitled to some consideration. In Harrington v. Trustees, 10 Wend. 547, the question was whether the Revised Statutes, upon the subject of excise, operated to repeal a provision upon the- same subject in the prior act, incorporating the city of Rochester. The court, by Mr. Chief Justice Savage, there said, “The repugnancy is apparent, and the consequence of that repugnancy is palpable”; that the Revised Statutes “are a new code of laws, and were intended by the legislature to supersede existing laws which were repugnant to them.” And it was held that such was the effect of the provisions there in question. In People v. Board of Supervisors of Westchester Co., 73 N. Y. 173, it was held that a genéral act limiting the compensation to which the county treasurers should be entitled on account of moneys derived from state taxes operated to repeal local acts upon the subject, because it was intended to be-applicable to the entire state, and it was there said:

“It is a rule that, where there are no words of explicit repeal in • a later act, it does not repeal by implication a former act, unless, the later enactment is so repugnant to the former as that they both cannot exist together. This rule applies in an especial manner where the former enactment is local and the later one is general. Yet if it is plain that the legislature meant to make a new and exclusive rule for the whole state, and for all cases, the local act must yield to the later general act.”

This proposition, in substance and effect, has the sanction of repeated judicial authority. People v. Angle, 109 N. Y. 564, 575; 16 St. Rep. 647; Anderson v. Anderson, 112 N. Y. 104; 20 St. Rep. 344; In re Washington St. A. & P. R. Co., 115 N. Y. 442 ; 26 St. Rep. 504 ; In re New York Institution for Instruction of the Deaf and Dumb, 121 N. Y. 234; 30 St. Rep. 921; Cromwell v. Mac Lean, 123 N. Y. 474, 485 ; 34 St. Rep. 85. The act of 1892 was designed as a consolidation and revision of all the statute law relating to the entire state, except the county of New York, and to provide a system comprehensive and complete in relation to all the counties embraced within its provisions. And, in respect to the subject-matter in question, those and the provisions in question of the charter of the city of Buffalo cannot stand together. While those of the later act do not affect any substantial right of the city in respect to the money in question, it does provide a different method of transmission of it from the county officer to the city treasury. It may possibly be attended with more delay than formerly, and the change of method may be unimpoi’tant in its reason and purpose. But the view here taken is that the county of Erie is not excepted from the operation of the later statute, in any respect, and that such provision of the city charter is superseded by it. The defendant is therefore entitled to judgment, with costs.

Dwight, P. J., and Lewis, J., concur.

Ward, J.

(dissenting). — -The fines and penalties specified in this submission belong to the city of Buffalo, whether paid into the city treasury by the keeper of the Erie county penitentiary, in the manner required by the charter of the city, or whether the)7, come to the city through the circumlocution of chapter 686 of the Laws of 1892. The most natural and reasonable way would be as provided by the charter; that being a direct way, and the money is paid over, substantially, as soon as it is received by the keeper. By the other process the keeper must pay over the money to the county treasurer within ninety days after its receipt, keep an ac-, count of it, and make an annual report to the supervisors of the county, and then they, by a resolution, shall turn it over to the city. It is claimed by the defendant that chapter 686 became a law after the adoption of the Buffalo charter, and consequently was the latest declaration of the legislative will upon the subject, and is controlling, it being an implied repeal of the provision of the charter as to the manner of the payment of this money by the keeper. Chapter 686 is a general statute affecting the whole state, and is entitled ‘‘An act in relation to counties, constituting chapter 18 of the general law.” It is what is generally known as the “County Law,” and its purpose was to embrace statutes of the-state affecting the government of counties, as such, and does not assume to be a revising statute, otherwise. Nor does it assume to repeal any laws affecting the government of cities, or otherwise, except as set forth in the “Schedule of Laws Repealed,” appended to said county law, and made a part thereof, and in such schedule we do not find the repeal of this provision of the Buffalo charter. We must assume, therefore, that, as this county law specially designates the statutes which it is intended to-repeal, the legislature,, in enacting it, did not intend to repeal by implication the section of the charter under which the plaintiff claims. Repeals by implication are not favored. And it is well settled that a special and local statute providing for a particular case or class of cases is not repealed or amended, as to some of its provisions, by a statute general in its terms, provisions, and applications, unless the intent to repeal or alter is manifest, although the terms of the general act would, but for the special law, include the cases provided for by the latter. In re Application of Commissioners, etc., in New York City, 50 N. Y. 493; People v. Quigg, 59 id. 83; Buffalo Cemetery Ass'n v. City of Buffalo, 118 id. 61; 27 St. Rep. 749; James v. Sammis, 132 N. Y. 239 ; 43 St. Rep. 910; Aldinger v. Pugh, 57 Hun, 181; 32 St. Rep. 518; Broum v. Duane, 60 Hun, 98, 37 St. Rep. 691; Harrington v. Trustees, 10 Wend. 552 ; Van Denburgh v. Village of Greenbush, 66 N. Y. 1; Whipple v. Christian, 80 id. 523. In the last two cases it was held that the lien law affecting special localities and counties were not repealed by a general lien law of the state subsequently passed, in the absence of repealing clauses to that effect. The learned counsel for the defendant cites several eases which mainly relate to theeffectof subsequent general statutes upon prior general ones, and where the courts hold that, when the legislature manifests a design to embrace the subject-matter of the former statute in the latter, the former is repealed by implication. These-cases do not aid us. Section 385 of the Buffalo charter was therefore in full force at the time that the moneys sought to be recovered from the defendant were received by him, and constitutes the guide 'of his action. It is true that section 234 of chapter 686 (County Law), requires that the county treasurer shall distribute all moneys belonging to any town or city in such county, received by him, as the board of supervisors shall direct. This can only refer to such moneys as the treasurer is entitled to receive under the county law; and as, by the charter, this money does not go into the hands of the county treasurer at all, the provision of the act of 1892 has no application. There is no such incongruity between the provisions of the city -charter and that of the provisions of the general county law as prevents their standing and being enforced together. As to this particular police fund, the charter prevails, and the money must be paid to the city treasurer according to its provisions. It follows from these views that the plaintiff should have judgment, under the stipulation, for the sum of $5,546.05, but, under the stipulation, without interest or costs. Costs are not to be awarded to either party.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    Mary Lavelle, Resp’t, v. Ellen Corrignio et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed April 11, 1895.)

    1. Appeal — Findings.
    The rule that the general term is always reluctant to interfere with the findings of a jury upon conflicting evidence, does not apply, where the testimony "bearing upon the question was before the jury in the form of written depositions.
    ■2. Decent — Proof.
    The finding that the defendents were not the children of a niece of the deceased owner of the property sought to be partitioned, was held not to be sustained by the evidence.
    Appeal from an order denying a motion at circuit for a new trial on the minutes, and from an order of the special term denying a motion for a new trial on the ground of newly discovered evidence.

      J. Bronson Ker, for app’lts; Henry Cooper, for resp’t, Mary Lavelle ; William T. Schley, for resp’ts, Home for the Aged of the Little Sisters of Poor and others.
   O’Brien, J.

This action was brought for the partition of certain real estate in the city of New York, the property in her lifetime of one Ann Owens. Upon her death, Ann Owens left, her surviving, two sisters, Mary Hardy, who died without issue shortly after the death of Ann Owens, and Rosanna Coy, born Hardy, who died in 1867, leaving, her surviving, three children, Ellen, Catherine, .and Mary Ann Coy. Ellen Corrignio and Mary Isabella Corrignio, though not originally parties to the action, were brought into it upon their own motion, claiming that they were the children and ■sole heirs at law of Mary Ann Coy, who, as we have seen, was a niece of Ann Owens. The question whether the Corrignios were, the children of Mary Ann Coy was, with a number of other distinct issues framed in the action, left to the jury, and their verdiet was against the claim advanced by the Corrignios: and it is upon the ground that such verdict was against the weight of evidence,' and upon the further ground of newly-discovered evidence, that the two motions were made for a new trial, from the denial of which appeals are taken. In disposing of the first, viz., the motion for a new trial upon the minutes, a reference to the facts is necessary. It was conceded that Mary Ann Coy was a niece of Ann Owens, and, in order to establish their claim of heirship to Ann Owens, it was therefore only necessary for the Corrignios to show that they were the children or issue of Mary Ann Coy. To prove this they produced the testimony of their father, their own testimony, and that of five other witnesses not related to them, all of which was taken by commission in New Orleans, where the Corrignios live. Their testimony, in substance, was that Ellen and Mary Isabella Corrignio were the children, born ■out of wedlock, of Mary Ann Coy and Dimitry Corrignio; that up to the time of the death of their mother, in 1877, they had always lived with and been recognized by her and Dimitry Corrignio as their children, and by their aunts, Ellen Ponds (formerly Coy) and Catherine Coy, as their nieces; that since the death of their mother they have resided with their father, and been treated by him and by their neighbors as the children of Dimitry Corrignio and Mary Ann Coy; that in 1877, while their mother was on her death bed, a clergyman of the Greek Church was sent for, and a marriage was solemnized between Mary Ann Coy ana Dimitry Corrignio, for the express purpose of legitimating the three children who had been born to them out of wedlock, one of whom, Dimitry, Jr., died soon after the death of Mary Ann Coy (or Corrignio). Two of the witnesses stated that they were present when the ceremonial marriage took place at her deathbed between Mary Ann Coy and Dimitry Corrignio, in 1877; that they were there as witnesses, and it was then stated that one of the reasons for the marriage was the desire both had of legitimating their three children, Ellen, Mary Isabella, and Dimitry, Jr. These witnesses also testified to the fact that they had known the children since they were born, and knew that they had lived with the man sjnd woman whose marriage they witnessed, and that the latter had always spoken to and of them as their children. In addition there was produced the certificate of the marriage, taken from the records of the church, which states that the marriage was had for the purpose of legitimating the three children who had been born out of marriage, naming them, and giving their ages; and also the baptismal certificate of Ellen, also from the records of the church, showing that she was baptized as the child of Dimitry Corrignio and Mary Ann Coy, and that their father and mother were both present at the baptism. These certificates are fortified by the testimony of the clergyman who furnished them, and who states that they are correct extracts from the records of his church. We have also the testimony of the clergyman vfho performed the marriage ceremony, which corroborates that of the witnesses in reference to the solemnization of the marriage, and the purposes for which it was done.

As against these eight witnesses and this documentary evidence we have the testimony of Ellen Ponds and Catherine Coy, who, as we have stated, were the two sisters of Mary Ann Coy. Their testimony was taken before the Corrignios had been made parties-to this action, and is to the effect that their sister Mary Ann Coy died without issue. Of these two, the one in the best position to-know was Catherine Coy, who, it appears, was accustomed frequently to visit her sister Mary Ann during her lifetime; whereas between the Corrignios and Ellen the same custom of visiting did not prevail, and although she visited her sister at intervals, and thus must have had some knowledge of the situation and surroundings of Mary Ann Coy, yet she was not in as good position to-know the household of the Corrignios and how it was made up as was her sister Catherine. Ellen Ponds testimony was that Mary (Ann Coy “ left no issue that she knew of; ” and that of Catherine was to the effect that Mary .-Ann died without issue. This witness, however, was not one that should impress a jury as. against more credible witnesses, it appearing that for many years-she had been an inmate in a house of ill repute. It may be said with respect to all the witnesses introduced that they were; not present at the birth of these children, and their testimony was hearsay, and that it does not appear but that they were, by reason of their friendship to the Corrignios, to some extent,, interested in their favor. But, conceding all this, we must nevertheless keep in mind the fact that relationship such as is here sought to be established, in most cases, in the absence of better evidence, is- required to be established by hearsay; and in this respect the Corrignios are in no different position than some of the other parties to this case. But if we eliminate the testimony of the father and of the girls themselves, and all the other witnesses except that of the two clergymen and the church z-ecords, we fail to see why that was not sufficient to have inclined the jury in favor of the Corrignios, considering that the only evidence against them was the testimony of their two aunts,, and that, taken as a whole, very uncertain in quality. The-.records wSre made, one in 1877, when Mary Ann Coy was married to Dimitry Corrignio, which fact was abundantly proved, and about which tlzere is no dispute, and the other upon the baptism of the child Ellen Corrignio; both of them being made at a time-when it could not have been foreseen-that they were ever likely to be available or of use in establishing the right of the persons affected thereby to any interest in the property of Ann Owens. These records, fortified as they are by the statement of the person-who now has possession of them, that they are true records of his church, corroborated by the clergyman who performed the marriage ceremony, who testifies that he remembers the circumstance and that the statement in the records is correct, are rather strong evidence in favor of the claim advanced by the Corrignios, and entitléd to great weight by a jury, as against that of two sisters,, one of whom is now to be discredited, and the other of whom, upon insufficient knowledge merely stated that her sister Mazy Ann Coy left no issue that she knew of. It may be, as suggested by the respondent, that a good deal of the testimony is support of ihe claim of the Corrignios has been manufactured; but certainly there is nothing, so far as the testimony of the clergymen and the records of the church are concerned, that in the slightest way would indicate that either spoke falsely. „

It is the undoubted rule that this court is always reluctant to interfere with the findings of a jury upon conflicting testimony, where the jury has had the advantage of seeing the witnesses testify and observing their demeanor. But that rule in its full force does not apply here, because the testimony bearing upon the question of" heirship was before the jury in the form of written depositions, and this court is as competent to pass upon the credibility of witnesses so examined as the jury itself. Such depositions 'clearly show, as we have already pointed out, that Mary Ann Coy was married to Dimitry Corrignio, and that Ellen and Mary-Isabella were raised by them as their children; that the church records, which were made at a time when it cannot be assumed that any one could have regarded them as valuable for the purposes of this suit, speak in favor of their claim to be the children of Mary Ann Coy. We know, on the other hand, that in addition to the testimony against this claim to which we have .adverted, there are many suspicious circumstances, such as the statement by the father of his age when the youngest of the children was born, and the neglect to assert the claim with promptitude, and the failure when they became parties to the suit to attempt the destruction of the evidence against them which had grown up from the testimony of Ellen Ponds and Catherine Coy, which had been taken and was on file as a matter of record. In view of the evidence adduced for and against the claim of the Corrignios, there was a question of fact for the jury; and we think the jury failed to appreciate the force of the evidence furnished by the church records, which, if credible, strongly corroborated the other five witnesses, who, as against the two on the other side, gave testimony tending to support the Corrignios’ claim. If there is anything wrong about such records, a new trial will afford the respondents an opportunity to show it, and, by the cross-examination of the witness produced against them by the Corrignios, the opportunity will be given of testing the weight to be attached to such evidence. The entire record enforces the conviction that the case on both sides was poorly tried. The parties all agreed that Ann Owens had died, but when is not made clearly to appear. So, too, in regard to the law of Louisiana, which it is claimed provides that the subsequent marriage of parents of children born out of wedlock, legitimizes the children. If that is the statute law of Louisiana, which we have no reason to doubt, its existence should have been established upon the trial. Miller v. Miller, 91 N. Y. 315. We think, therefore, that justice demands that a new trial should be had. As well said by Charles P. Daly, C. J., in Clark v. Bank, 8 Daly, 504:

‘‘ Juries are not infallible. They are, individually and collectively, subject to the ordinary infirmities of human nature, and cases do occur where, if the court did not interpose and set aside the verdict, it would amount to a denial of justice. By doing so, no right is taken away. The effect of setting aside the verdict is simply to subject the case to further consideration of another jury, and even this has its limitations. This supervisory jurisdiction over the verdict of a jury, even upon a question of' fact, is a most salutary one, and, in the language of Graham, no lover of justice would wish to see it crippled or narrowed, as it might otherwise be in the power of juries to trample upon justice.”

A new trial need only be granted with respect to the issue-raised as to the heirship of the Corrignios, no necessity existing for setting aside the verdict upon the other issues between the plaintiff and the other parties to the action, because that as to the Corrignios being heirs of Ann Owens was one entirely distinct from any other issue in the case. The Corrignios do not question the correctness of the verdict of the-jury upon the issues raised by the other parties to the action; and, since the verdict was entirely favorable to these other parties, upon the new trial the controversy as to the Corrignios can be disposed of without disturbing the verdict upon those points as to which all parties agree it was correct. We-think the appellants are right in their contention that the error into which the respondent has fallen, in assuming that, if a new trial is to be granted to the Corrignios, this will result in great hardship by requiring a new trial upon all the other issues in the case, arises in failing to distinguish between the issue in the action and the questions of fact which go to make up such issue. It is undoubtedly true that, with respect to questions of fact that go to make up an issue, where one of these, if set aside, would necessarily result in the setting aside of other questions of fact connected with it and tending to sustain the verdict, all questions connected with the same issue would necessarily fall with it if a new trial were granted. The position, however, is entirely different where there are separate and distinct issues. In such a case, granting a new trial as to the one'does not necessarily involve the others; and where, as here, all the parties agree that the verdict upon all other points was right, it would be useless to have the parties again go through the form of establishing what nobody is contending against. We think, as urged by appellants, that the issues in a partition action, being triable of right by a jury, § 970 of the Code of Civil Procedure makes the finding of the jury upon each question of fact arising upon the issues submitted to them conclusive upon the court, unless the verdict is set aside or a new trial is granted; but since in such an action" there may be any number of distinct issues, each made up of independent questions of fact, there is nothing to prevent the court from setting aside the Verdict of the jury upon any one of these issues, and for this purpose there may- be deemed to be as many verdicts as there are issues in the action. Vermilyea v. Palmer, 52 N. Y. 471; Birdsall v. Patterson, 51 id. 43. Our conclusion, therefore, is that there should be a new trial upon the condition that appellants pay all the costs of the action and the disbursements included in the judgment. Although we have discussed, it may not be necessary to decide, the question as to whether, upon setting aside the verdict, a new trial should be granted with respect to all the issues, or only the one raised as to the heirship of the Corrignios, for the reason that, as the correctness of the verdict except as to that issue is not now disputed by any of the parties to the action, the Corrignios upon such new trial can stipulate as to the existence of such undisputed facts, and thus leave the simple question as to their relationship to Ann Owens to be disposed of. ■ Since the trial Catharine Coy has made an affidavit that the testimony given by her was under a misapprehension as to the questions asked her, and that she did not intend to swear, and if she did it was untrue, that the Corrignios were not the children of her sister. It is upon the change wliich she would thus seek to introduce between her evidence given upon the trial and this statement that the motion for a new trial on the ground of newly discovered evidence is based ; and it is insisted that this evidence is newly discovered, because in no way could the defendants have procured it upon the trial. A question is presented as to whether, since giving her testimony upon the trial, she has not parted with her interest, leaving-her therefore, if of easy conscience, to swear as she may for the time incline. But, in view of the conclusion reached upon the ground, it is unnecessary to decide the motion. The order denying motion on the ground of newly discovered evidence is accordingly affirmed, and the order denying motion for new trial upon the minutes reversed and motion granted, without costs to either party in this court, upon payment by appellants of the costs and disbursements included in the judgment.

Follett, J., concurs; Van Brunt, P. J., dissents.


author: Parker, J.

text:
    Willoughby Weston, as Trustee, etc., Resp’t, v. Cornelia P. Goodrich et al., Def’ts. Ashbel P. Fitch, as Comptroller, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed April 11, 1895.)

    Tax — Transfer.
    The power of the surrogate to determine in the first instance whether a fund is subject to the transfer tax is exclusive, and cannot be exercised by the supreme court as incidental to its jurisdiction to construe a will.
    Appeal from an interlocutory judgment, overruling a demurrer to the complaint interposed on the ground that the court did not have jurisdiction of the matter.

      Emmett R. Olcott, for app’lt; Frederick Seymour, for resp’t.
   Parker, J.

The plaintiff, who was appointed by the court to execute a trust created by the last will and testament of William G. Breese after the trustees named in the will had either-died or been removed, commenced, this suit, in which he asks for a construction of a certain provision of the will, and the direction of the court concerning it; that it be ascertained what persons are entitled to share in the trust estate, and their proportions; requests a settlement of his accounts, and that he be •discharged, as trustee, with an allowance for commissions, costs, and disbursements ; and that the court ascertain whether the trust fund is subject to a collateral inheritance tax under the statute of the state of New York. To so much of the complaint as seeks the judgment and direction of the court relating to the question whether the trust estate should pay a collateral inheritance tax, a demurrer was interposed by the defendant Ashbel P. Fitch, as comptroller of the city of New York, “upon the ground that this court has no original jurisdiction to hear and 'determine whether the estates of deceased persons are subject to a collateral inheritance tax, or what was known on the 1st day of April, 1894, — the date of the death of Cornelius F. Coster, — as the ‘Transfer Tax,’ or to fix the amount of such tax, and that the jurisdiction of this court in that regard is limited to review on appeal at general term all such proceedings as may be had to hear and determine all questions arising under the provisions of chapter 399 of the Laws of New York, entitled ‘An act in relation to taxable transfers of property,’ which took effect May 1, 1892, and under the acts prior thereto relating to such taxes, before a surrogate’s court of any county of the state having jurisdiction to grant letters testamentary or of administration upon the estate of a decedent whose property is chargeable with any such tax, or to appoint a trustee of such estate, or any part thereof, or to give ancillary letters thereupon, and'that such jurisdiction to hear and determine as to the liability of estates of deceased persons is vested in the first instance in such surrogate’s court only.”

It will be observed that the demurrer does not present the question whether this case is of such a character as that a court of equity will take jurisdiction of it for the purpose of construing the will. And therefore the learned judge at special term proceeded, in the disposition of the question submitted, upon the view that, the court having obtained jurisdiction for the special purpose of construing certain provisions of the will, it is within its ' province to retain the case for all purposes necessary to a complete adjustment of the entire controversy. It is the general rule that, where this court has concurrent jurisdiction with the surrogate’s court, it will decline to take it, unless for the purpose of affording special relief beyond the power of the surrogate’s court. But, if a case be presented which calls" upon it to exercise its jurisdiction, it not unfrequently assumes jurisdiction of all matters either in controversy, or necessarily connected with it, and decrees a settlement and distribution of an entire estate. Wager .v. Wager, 89 N. Y. 161; Anderson v. Anderson, 112 id. 115 ; 20 St. Rep. 344; Sanders v. Soulter, 126 N. Y. 193 ; 37 St. Rep. 1. In connection with this rule, attention was given to the proposition, equally well established, that in the absence of words of exclusion the conferring of jurisdiction upon one court does not operate to oust other courts before possessing it, for the reason that concurrent jurisdiction is not inconsistent. Cooke v. Bank, 52 N. Y. 106. The courts have been frequently called-upon to reassert this proposition in cases where jurisdiction has been conferred upon surrogate’s courts, by statute, to perform certain duties which the supreme court had jurisdiction to perform. Widmayer v. Widmayer, 76 Hun, 251; 59 St. Rep. 102; Royce v. Adams, 128 N. Y. 402; 33 St. Rep. 622. Section 2817 of the Code of Civil Procedure confers upon the surrogate’s court jurisdiction to remove testamentary trustees for misconduct; but in Widmayer's Case it was held that the facts presented a proper case for this court to take jurisdiction, for the removal or a trustee. Section 2818 authorizes the surrogate’s court to appoint new trustees when a sole testamentary trustee dies, becomes a lunatic, or is removed by a decree of the surrogate’s court; and in Boyce's Case such an appointment was made by the surrogate’s court, where more than on.e trustee was named in the will, and the court said that it was not the purpose of the statute to confine the power of appointment to the case of a sole testamentary trustee. In that case the supreme court, as well as the surrogate’s court, appointed the same persons as trustees; and the court held that if there was any doubt about the authority conferred by the surrogate’s appointment, in view of the peculiar phraseology of the statute, there could be no doubt but valid authority was conferred under their appointment by the supreme court. It should be observed, in passing, that in these cases, and all others bearing upon this question to which the respondent calls our attention, the supreme court had jurisdiction to do the very things which the surrogate’s courts were subsequently authorized to do by statute. Quite a different question is presented where the legislature, by means of statutory enactment, confers upon a court an authority, although judicial in its character, but not regarded as a part of the jurisdiction of equity. Hogan v. Kavanaugh, 138 N. Y. 417; 52 St. Rep. 884, and Dunning v. Dunning, 82 Hun, 462 ; 64 St. Rep. 397, will serve as illustrations. In Hogan's Case a question was presented which justified a court of equity in taking jurisdiction, and the trial resulted in an adjudication that a legacy bequeathed by the will of the testator, Hogan, should be made a specific lien on certain real estate; the lien enforced by a sale, and the legacy paid out of the proceeds. The trial court proceeded upon the theory that, when a court of equity has obtained jurisdiction of the case for one purpose, it may retain it for all purposes, and, appreciating the legal right of the creditors of the testator to be paid out of the proceeds of a sale of his real estate before legacies charged thereon could be paid, provided in the judgment decreeing a sale of the property that, next after the payment of the expenses of sale, the proceeds should be applied to the payment of the debts of the decedent, This determination encountered no difficulty until it reached the court of appeals, when the judgment was so modified as to make the sale of the real estate for the payment of the legacies subject to the rights of creditors, who were to be paid out of the fund before the legatees, but only after the debts have been duly established in the surrogate’s court, and such proceedings had as would authorize proceedings for the sale of real estate for the payment of the debts of the testator. In presenting the reasons which induced such a modification of the judgment as practically transmitted to the surrogate’s court all questions affeeling the rights of creditors who were entitled to priority of payment over the legatees, the court said that the collection of debts from the real estate of a deceased debtor was never regarded as a part of the jurisdiction of courts of equity; that such “ right ” was conferred by statuté, and it must be asserted and proved in the manner that the statute prescribes. Here the real estate of the deceased is directed to be sold for the payment of debts by the decree of a court of equity, without regard to any statutory steps that must precede such sale in the ordinary course of administration.’’ If the authority conferred by the statute under consideration were strictly judicial, and intended as an extension merely of the jurisdiction of the surrogate’s court, the doctrine of Hogan’s Oase would seem to be applicable, and sufficient to support a judgment sustaining the demurrer; for qertainly it must be said that prior to the enactment of the statute in question the collection and enforcement of taxes, and certainly of this tax, which came into existence at the same time as the method for its enforcement, never constituted a part of the jurisdiction of courts of equity.

Both of the cases cited supra are authority for the proposition that the supreme court will not attempt to draw to its jurisdiction questions remitted to a competent and sufficient authority by express command of a statute, which, in addition, establishes the procedure by which the rights of persons interested are to be affected.

For the purposes of the discussion next to be had, however, we shall only remember the rule established by the cases of Widmayer v. Wtdmayer and Royce v. Adams, supra. Starting with the proposition, which was not challenged by the demurrer, that the complaint presented a case which called upon the court to take jurisdiction of the principal question, and having in mind the rule that in such a case the court may go on to a complete adjudication, although the surrogate’s court may have concurrent jurisdiction of incidental questions involved, the conclusion was reached that the demurrer was not well taken. But the argument advanced in support of this conclusion entirely omits consideration of the relation of the surrogate to the tax. It assumes that authority was conferred upon the surrogate’s court, in the first instance, to ascertain and determine judicially the amount of the tax, if any, to he paid ; and upon that premise, considered with the fact that the statute does not in terms exclude any other court, it is argued that the supreme court, being a court of general jurisdiction, may also assess and determine the tax, if incidental to a complete determination of an estate of which it' has taken jurisdiction for some special reason. The premise, however, is faulty, in that the statute does not confer jurisdiction upon the surrogate's court, as such, in the first instances, to assess and determine the tax. The surrogate, as a taxing.officer, after the.appraiser has appraised the property, enters his order fixing the tax “ as of course,’’ and thereafter any person aggrieved may appeal therefrom to the surrogate. By both the initial act of 1885 and the subsequent one-of 1892, :i special state tax, not belonging to the system of general taxation, was created. In character, it was so entirely different from the general plan of taxation that special agencies were necessary, for its enforcement. What those agencies should be, and under what rules and regulations they should proceed to enforce collection of the tax the legislature alone had power to determine. The courts can only interfere when a tax law transcends the legislative power. People ex rel. Panama, R. R. Co. v. Commissioners of Taxes, 104 N. Y. 240-250; 5 St. Rep. 647. That the statute in question does not do. In re McPherson, 104 N. Y. 306; 5 St. Rep. 680. Instead of providing for the appointment of assessors or collectors or taxing officers, under some other name, to execute the provisions of the law, the legislature not unwisely determined that the surrogates of the several counties of the state were in a position to more economically and effectively enforce collection of the tax than any other agency that could be devised ; and so the surrogates were made special taxing officers, and charged with the duty of enforcing the collection of this special state tax, upon such notice to those interested, and in the manner, provided by the statute. That the statute constituted the surrogate, and he alone, the assessing and taxing officer, and as such the only representative of the state, in the first instance, for all purposes relating to the appraisement and taxation of property, will clearly appear from a brief reference to certain of its provisions. By section 10 of the act of 1892, the surrogate’s court is given “ jurisdiction to hear and determine all questions arising under the provisions of this act.” Section 11 empowers “ the surrogate,” upon the application of any interested party, or upon his own motion, and as often as occasion requires, “ to fix the fair market value, at the time of the transfer thereof, of property of persons whose estates shall be subject to the payment of any tax imposed by this act” Section 13 provides that “ the surrogate,” upon the report of an appraiser, and other proof before him, or without appointing an appraiser, “shall forthwith as of course determine the cash value of all estates and the amount of tax to which the same are liable. * * * Any person dissatisfied with the appraisement or assessment and determination of tax may appeal therefrom to the surrogate within sixty days.” It is clear that the initial steps which the statute requires the surrogates to take are those of taxing officers, and not of judges. He appoints an appraiser to appraise the cash value of the property. Upon the coming in of the report, he may enter an order determining the cash value of the estate. The order may be base 1 upon the report, or upon any other proof before him, and this he does “ as of course.” But the party aggrieved may take an appeal from the order thus made to the “surrogate,” and then for the first time the procedure takes on a judicial character. But it is no more so than that of a board of assessors, who are required to give public notice of the completion of the assessment roll, and the time when they will hear all parties aggrieved, at which time those who are dissatisfied may appeal to the board of assessors, upon affidavits and other proofs,'to make correction of the assessment roll, in so far as it affects them. By section 35 it is made the duty of the treasurer or comptroller in any county having reason to believe that any tax is due and unpaid under the act, to notify the district attorney, who shall apply to the 11 surrogate’s court ” for a citation citing persons liable to pay such tax to appear before the court on a day specified. . Section 18 makes it the duty of the comptroller to furnish each surrogate with a tax book, which shall be a public record, where entries relating to estates subject to the tax shall be made. The court of appeals, in discussing the question of the jurisdiction of the surrogate under the act of 1885, in Re Wolfe, 137 N. Y. 205; 50 St. Rep. 406, used the following language:

“As I read the provisions of this act, I think we must differ with the conclusions below, and that the proper construction of this act makes of the surrogate the assessing and taxing officer, and as such the representative of the state for the purposes relating to the appraisement and taxation of property. * * * When we read all of the provisions of this act, it is perfectly apparent that 'a special system of taxation was created for the benefit of the state, with all the necessary machinery for its wbrking, the control with respect to which was vested in the surrogate’s court with a juris- ' diction exclusive in its nature. In the assessment of a tax upon property passing by will or by the intestate law, the responsibility ■is imposed by the law upon the surrogate. He acts for the state, and he is commanded to assess and fix the tax to which property is liable. * * * I can see no difference between the principle upon which the surrogate acts in proceeding to assess property for taxation under the act, and that upon which, in general system of taxation in the state, tax assessors act in the assessment of persons or property for purposes of taxation. It is well settled, as to them, that in their proceedings they must determine the question of liability to taxation as a fact which gives them jurisdiction . to assess. It is not only an important, but it is a conditional, step in the proceedings for the assessment.”

In Re Ullmann, 137 N. Y. 406; 51 St. Rep.l, the court, after quoting the fifteenth section of the act' of 1885, which read, “ The surrogate’s court have no j urisdiction to hear and determine all questions in relating to the tax arising under the provisions of this act,” said:

“Aside from the ordinary jurisdiction of the surrogate, this is a special grant of power, in broad and comprehensive language; and there can be no good reason for hampering the power thus conferred by any construction that would take from him the authority to decide every question that may arise in the proceeding before ’ him which may be necessary in order to fully discharge the duties imposed upon him by the act. Every officer charged with the duty of executing the taxing power, whether it be a surrogate or a town assessor, must necessarily decide, in a judicial capacity, important questions of law, in order to perform the duties of his office.”

The language employed in the decisions, from which we have quoted leaves no room for doubt that it is the judgment of the court of last resort that the -power conferred on the surrogate by the statute is a taxing power, and that his authority to initiate the proceedings is, like that of the town assessor, exclusive. The supreme court has no jurisdiction to make an assessment which the town assessor is required to make, in the first instance, nor has it in the absence of statutory authority, the right to usurp the functions of the surrogate as a taxing officer under the taxable transfer act. The question of liability to taxation is a fact to be determined by the assessors, and which gives them jurisdiction to assess. It is a conditional step in proceeding for assessment. And the court cannot, in advance of action by the assessors, take that question away from them. Their action may be reviewed by the courts, and, if it be found that they assumed jurisdiction when they had it not, the wrong will be righted. Authority to pass upon the merits of assessments has been conferred upon the court by statute (chapter 269, Laws 1880), but the authority to assess or command the assessment of taxes is neither a part of the original jurisdiction of the supreme court, nor has it ever been conferred upon it by the legislature, which alone has power to determine all questions of state necessity involved in ordering a tax, and in selecting the agencies for collection.

The respondent calls attention to the fact that the supreme court 1ms exercised jurisdiction in McVean v. Sheldon, 48 Hun, 163; 15 St. Rep. 594; Catlin v. Trinity College, 49 Hun, 278 ; 17 St. Rep. 707; id., 113 N. Y. 133; 22 St. Rep. 189; and Tallmadge v. Seaman, 30 N. Y. Supp. 304. The first two cases were submitted on an agreed state of facts, and the last was a special term decision, and in neither of them was the question of jurisdiction raised.

The suggestion of respondent that because of the number of parties, and the great inconvenience which will result if it should be held that the surrogate must, in the first instance, exercise his prerogative as a taxing officer, should no more persuade a strained construction in this case than in Hogan Case, supra. Indeed, the argument of convenience has less merit in the case under consideration, for the complaint does not present a single question that could not have been passed upon in the surrogate’s court. The interlocutory judgment should be reversed, with costs of this appeal, and the demurrer sustained, with costs.

All concur.


author: O'Brien, J.

text:
    The People ex rel. United States Trust Company, Resp’t, v. Edward P. Barker et al., as Commissioners, etc. App'lts.

      (Supreme Court, General Term, First Department,

      Filed April 11, 1895.)

    Taxes — Assessment—Oospora tian.
    A dividend, declared by a corporation before, but not payable until after, the date fixed for the assessment of property for taxation, is not part of its surplus funds, but a debt, which it is entitled to have deducted from its taxable assets.
    Appeal from an order reducing the assessment.

      David J. Dean, for app’lts; Hdward W. Sheldon, for resp’t.
   O'Brien, J.

The facts upon which the propositions of law were to be argued upon this appeal, stipulated in the court below are as follows: (1) That the relator is a trust company, duly created and. existing under and by virtue of the laws of the state of Mew York, and transacts its business at 45 Wall street, in said city. (2) That at a regular meeting of the board of trustees of the relator held on the 7th day of December, 1893, the following action was taken : “The question being on the adoption and recommendation of the examining committee, it was resolved and carried that the report be adopted as read, and a dividend of sixteen per cent, was declared, payable January 10, 1894.” (3) That on the said 7th day of December, 1893, there was set apart on the books of the relator to the credit of the “eightieth dividend” account, and charged to “profit and loss” out of the net profits of the preceeding six months, the sum of $320,000 ; that said sum was paid out as such dividend on the 10th day of January, 1894. (4) That during the period from December 7,1893, to January, 10, 1894, there was continuously on deposit at the bank of the Manhatten Company, to the credit of the relator, a sum in cash exceeding $320,000, but that sum was not separated on the books of said bank from the general cash held to the credit of the relator, nor in any way indicated as a special deposit until said 10th day of January, 1894. (5) That, in each statement rendered by the relator to the commissioners prior to that for the year 1894, the amount of the semiannual dividend declared by the relator in the preceeding December, and payable the January 10th thereafter, has been deducted from the taxable value of the relator’s capital stock, and such deduction has been allowed by the commissioners.

It will be noticed that the dividend was declared on the 7th day of December, 1893, payable January 10, 1894, and 'the date fixed for ascertaing what should be assessable as the capital stock of the corporation liable to taxation was the second Monday of January, which was intermediate between the date of the declaration and the payment of the dividend. The relator claimed that this dividend was not one of the assets, nor subject to taxation on ttie second Monday of January, 1894; and it is from the conclusion of the judge at special term sustaining this view that the appeal is taken.

Section 3, chap. 456, Laws 1857, under which the relator was taxed, is as follows :

“The capital stock of every company liable to taxation, except such part of it as shall have been excepted in the assessment roll, or as shall have been exempted by law, together with its surplus profits or reserved funds, exceeding ten per cent, of its capital, after deducting the assessed value of its real estate, and all shares of stock in other corporations actually owned by such company, which are taxable upon their capital stock, under the laws of this state, shall be assessed at its actual value, and taxed in the same manner as the other personal and real estate in the county.” '

The question' presented, therefore, is, was the amount of such dividend one of the assets of the relator, constituting a part of its “surplus profits or. reserved funds,” or was it a debt, which the relator was entitled to have deducted from the taxable assets of the company? In Re Kernochan, 104 N. Y. 618, at page 624 ; 6 St. Rep. 439, it is said:

“As soon as the profits on shares of stock are ascertained and declared, they cease to be the property of the company, and the owner of the shares becomes entitled to the dividend. It at once forms part of his estate. The fact that they are made payable at a future time is immaterial.”

In Hopper v. Sage, 112 N. Y. 530; 21 St. Rep. 491, it is said :

“This is so in regard to dividends declared, but which are payable at a future time, and such dividends belong to the owner of the stock when declared. The declaration of the dividend is in legal contemplation a separation of the amount thereof from the assets of the corporation, which holds such amount thereafter as the trustee of the stockholder at the time of the declaration of the dividend.”

And in Jermain v. Railroad Co., 91 N. Y. 483, 492, it is said :

“When a dividend has once been declared out of net earnings, the amount of such dividend is no longer a part of the assets of the company, but is appropriated or set apart for the shareholders. They receive credit for the dividends, and the corporation simply holds them as their trustee.”

These authorities would seemingly be conclusive, but their force is sought to be avoided — First, by the language of the statute under which the relator was taxed; second, by the claim that the question disposed of in the cases cited was one between individuals ; and, third, that the effect of permitting the deduction would be to enable the amount of the dividend altogether to escape taxation. Even though it be assumed that the relator would have had the right to rescind the resolution under which the dividend was declared, and thus leave its surplus profits or reserved funds unimpaired, this cannot be regarded as conclusive upon the question as to whether the amount of such dividend constituted a part of the relator’s assets or a part of either of the funds mentioned in the statute. Nor do we think it is to be determined by a consideration of whether, strictly speaking, the amount is to be regarded as a debt, and thus deductible from taxable assets, the question really being whether it is a portion of the surplus profits or reserved funds; and the authorities cited favor the view urged by the respondent, that the sum dedicated to a specific use, and no longer available for corporate purposes, as long as the dividend resolution stands (which it did upon the second Monday of January), can no longer be regarded as surplus or reserve than could the balances due depositors; and it having been held that the effect of a declaration of a dividend is to place the corporation in the position of trustee for those in whose favor the dividend was declared, and for the recovery of which they might sue, it cannot be regarded as part of the surplus profits or reserved funds of the corporation.

The second distinction sought to be made between the cases cited and the one at bar, that the questions there involved were between private individuals, while here it is between the municipality and a corporation, seems to us without force, because the legal principles controlling the disposition of the question would be the same. The third reason urged by appellants, that this would permit the amount of the dividend to escape taxation altogether, is equally without force, because, if it is property which belongs to the persons in whose favor the dividend was declared, it should not be'taxed as part of the assets of the corporation. Nor to the end that the tax might be collected should one not liable be obliged to pay it. We think the order appealed from was right, and should be affirmed, with costs.

All concur.


author: Per Curiam.

text:
    Ann Reilly, Resp’t, v. Manhattan Railway Company et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed April 11, 1895.)

    Damages — Elevated railroad.
    In an action against an elevated railroad for injury to abutting property, a statement in the decision that the value of the easements taken, over and above any benefits conferred on the premises, was a certain amount, is not ground for reversal where there is no question that resultant damage was the item for which compensation was intended to be made.
    .Appeal from a judgment in favor of plaintiff.

      A. T. Stoutenbergh, for app’lts ; E. M. Felt, for resp’t.
   Per Curiam.

It is urged by the appellants that the learned court erred because it states, among its grounds for the decision, that the value of so much of the plaintiff’s easements belonging to the premises No. 922 Third avenue, over and above the value of any and all general and special benefit to said premises arising-from the construction, maintenance and operation of said elevated railroad in front of them, as was taken by defendants, was and is. the sum of $1,200. It is claimed that this statement is clear and positive that the value of the easements taken, over and above any benefits conferred on the premises, is $1,200,- and that the court overlooked the point that the easements themselves had been adjudged by the court of appeals to have had no value in themselves, but that it is the damage to the premises to which, they were attached, resulting from their destruction, for which compensation is awarded. We think it is plain that the learned court attempted to follow the rule of the court of appeals in this-respect, and that there is no question but that resultant damage-was that for which compensation was intended to be made. Upon an examination of the evidence, we see no reason for interfering with the court below, and think the judgment should be affirmed, with costs.


text:
    Leopold Zimmermann et al., App’lts, v. Elias Heil, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed April 11, 1895)

    Brokers — Margins—Delay in selling.
    A broker, who purchased securities for a customer on margin and is directed by him, after the margin is exhausted, to sell, but fails to do so. within a reasonable time thereafter, is liable for the resulting loss.

      Appeal from a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial.

      William F. Goldbeck, for app’lts; Henry L. Scheuerman, for resp’t.
   O’Brien, J.

This action is brought to recover the balance claimed to be due upon transactions in silver certificates, in which plaintiffs acted as defendant’s brokers. They purchased on defendant’s order, and for his account, certificates representing-10,000 ounces of silver bullion, on September 3, 1890, against which the defendant deposited a certain amount as margin. By-reason of a decline in the market, the margin became exhausted between October 9 and 11, 1890 ; but the plaintiffs held the certificates until November 21, 1891, when they were sold at a further loss, which, with interest and storage charges, they seek to recover in this action. The defense presented upon the trial was that the transactions were concluded on October 7,1890, by the defendant’s refusal to advance more margin, and by a conversation between the parties, in which, as asserted on one side, but denied on the other, the defendent informed plaintiffs that if they thereafter held the silver they did so at their own risk, and that if they incurred loss thereafter they would have to bear it themselves, and could not charge it upon the defendant. The plaintiffs-contend that, as they had received no order from defendant to sell prior to the time his margin was exhausted, they bad no right or authority to sell before that time; while, on the other-hand, after his margin was exhausted, defendant had no right or authority to say what should or should not be done with the silver, unless he either put up additional margin, or-paid plaintiffs: the amount of his then existing indebtedness; in other words,, that, even if the legitimate inference from the conversation between the parties when the margin was exhausted was that defendant desired plaintiffs to sell out, plaintiffs were under no-obligation to do so, since it was their privilege, provided they exercised good faith, to sell or not, as they thought best for their own protection, after defendant’s margin had been exhausted, and he had not responded to their call for additional margin.

The legal question is thus presented as to whether or not a, customer, after his margin is exhausted, can refuse a call for more margin, and then ridjiimself of future loss by notice to the broker that he will not be responsible therefor, and that any additional loss that may result from his holding and not selling he must bear himself. Or, differently expressed, was the trial judge right in his statement that, if the defendant so informed the plaintiffs, they were bound to sell within a reasonable time after the exhaustion of margin, and that if they held the certificates fora longer period, and further loss resulted, such loss must fall on the plaintiffs? The question seems never to have been directly passed upon. It has been held that the legal relation of broker and client is that of pledgor and pledgee, Markham v. Jaudon, 41 N. Y. 235; and as stated in 18 Am. & Eng. Enc. Law, p. 668, the rule applicable to the contract of pledge is that when the debt matures, and is not paid, the collateral may be sold by the pledgee after reasonable notice to the pledgor. And while, in the absence of directions or notice to sell, the broker or pledgee is not bound to sell, the question here is, what is his duty when directions to sell, or their -equivalent, are given him? As stated, there is a lack of authority upon this point; the nearest upon the facts being Field v. Leavitt, 37 N. Y. Supr. Ct. 215, which was a case where a personal property had been pledged to secure the payment of a note. It appeared that the pledgor and the parties to the note united in •demanding a sale of the greater portion of the property pledged, upon an offer procured by them, and the pledgees and owner of the note refused to make the sale. It also appeared that if such .sale had been made, and the money paid thereon, the proceeds of the sale would have paid the note, except $200, and the remainder of the property pledged would have sold for a greater sum than the balance of the note, whereas afterwards the property sold for .a much less sum than the note, and left a deficiency to be paid by the parties. It was held that, even assuming that the proposed purchaser was solvent and ready to make the purchase, there being no proof in the ease that the refusal to sell by the pledgees was not the exercise of an honest judgment on their part, having regard to their own rights and interests as well as those of the parties to the note and the owners of the property, the most that was shown and could be claimed from those facts was that the pledgees made a mistake, and that no liability could ensue therefrom, under the circumstances This, to some extent, sustains the appellants’ contention that after the conversation, as detailed by the defendant, and which was credited by the jury, of his unwillingness to be responsible for further loss, and if they held the securities longer they did so at their own risk, this placed no obligation on them to sell, and that, while they had the privilege, it was not their duty, nor were they bound, to sell. We think that the facts here, being different, distinguish it from the ■case referred to. The defendant’s statement that he could not afford to deposit more margin, and that he would not lose more -than he had lost, amounted, in effect, to an order to sell, or the •expression of a desire to sell, which was the inference and conclusion drawn from the evidence by the jury; and the learned trial judge was therefore right in charging that if they believed .such to be the fact the defendant would be absolved from further liability. While the legal relation between broker and client is that of pledgor and pledgee, there exists likewise that other legal relation of principal and agent. And we fail to see why an agent in the case of a purchase and sale of stocks is not in the same position with respect to his principal as apy óther agent would be. True, he has an agency coupled with an interest; but this relation of agency, when once created, is not affected by the question whether the principal has or has not kept good his margin. Until .the transaction is fully closed out, and a profit or loss results, the relationship between the parties is undisturbed. If we are correct in this view, it would be an anomalous conclusion to hold that an agent, for his own supposed benefit or profit, could violate the instructions of his principal, and, if a gain resulted, have the benefit of it, and, if a loss, charge it upon his principal. Even though a broker engaged in the sale of stocks has an interest as agent in the transaction, or in the property which he holds for his principal, there is no hardship in his being obliged at all times to comply with the client’s instructions. It is entirely within the broker’s right and power at all times to protect himself by requiring sufficient margin, which, if not forthcoming, entitles him to sell, and thus avoid a loss. If, on the other hand, he is careless and unbusiness-like, and permits the margin to become exhausted, and a loss results, he cannot take the risk of making this good by holding the property of his principal after he is instructed to sell the same, and, for any additional future loss occurring after such instructions are given, hold his customer. Any other rule would permit an agent to speculate upon the account, and at the risk, of his principal. We think, therefore, that the customer has the right to direct the broker to sell his stock at any time, and, unless he does so within a reasonable time thereafter, he is responsible for any loss that may result from his failure to obey his customer’s instructions; that this rule is not to be varied, whether the customer has or has not exhausted his margin ; and that, although it is the broker’s privilege to sell upon failure of the customer to keep good his margin after notice to do so, upon taking the proper steps, if he retains the stock after instructions to sell, it is at his own risk, and without the right to have recourse to the customer for any loss that may result from his failure within a reasonable time thereafter to sell. This was the view entertained by the learned trial judge, and, though there are isolated sentences in his charge to which exceptions were taken, it will be found, upon reading it in its entirety, that it clearly presented, upon the evidence, the correct rule of law; and the exceptions taken and urged on tins appeal being all substantially, directed to the question we have discussed, they must, for the reasons stated, be held untenable.

The question of fact as to whether the conversation occurred in which the defendant told the plaintiffs that he would not advance more margin, and that if they thereafter held the silver they did so at their own risk, and if any loss occurred they must bear it themselves, and the inference which the jury were thus allowed to draw that this was an intimation that the defendant desired the plaintiffs to sell, were resolved, upon conflicting evidence, in defendant’s favor, and the verdict so reached should not be disturbed.

Judgment and order accordingly affirmed, with costs.

All concur.


author: Van Brunt, P. J.

text:
    John McQueen, as Receiver, etc., Resp’t, v. Tobias New, Impleaded, etc., App’lt.

      (Supreme Court, Ceneral Term, First Department,

      Filed April 11, 1895.)

    Counterclaim — Equitable.
    In an action by the receiver of an insolvent corporation for the conversion of goods belonging to such corporation, the defendant cannot offset a claim for the price of goods, previously sold hy Mm to the corporation upon the representation of its officers that it was solvent. >
    Appeal from an interlocutory judgment, sustaining a demurrer to certain defenses set up in the answer.

      F. J. Mather, for app’lt; H. H. Whitman, for resp’t.
   Van Brunt, P. J.

This action was brought by the plaintiff, as receiver of the Powerville Felt-Roofing Company, against the defendants, to recover damages for the conversion of certain property alleged to have been wrongfully taken, carried away, and converted by the defendants. The complaint alleges that on the 21st of December, 1892, by a final judgment, the property of the Powerville Felt-Roofing Company was sequestrated, and one Josiah Jewitt was appointed permanent receiver of said company,, and of its property and effects, of every kind and nature whatsoever situated, and that on the 24th of December, 1892, said Jewitfc duly qualified as such receiver, and continued to act as such receiver down to the 2d of March. 1893, upon which day he departed, this life; that on the 13th of March, 1893, the plaintiff was duly appointed permanent receiver in his place, and that he had duly qualified and entered upon the discharge of his duties as such receiver, and has ever since continued to act, and is now acting, as-permanent receiver of said company. The complaint then alleges-authority to prosecute the action, the incorporation of the defendant national bank, and that on the 1st of February, 1893, the defendants wrongfully took, carried away, and converted to their own use certain merchandise belonging to said company, which was reasonably worth the sum of $19,000 ; and judgment is demanded for the sum.of $19,000, with interest from the date of said conversion. The defendant Tobias New, by his answer, denies all knowledge or belief as to the appointment of said permanent receiver and as to authority to bring the suit, admits the incorporation of the defendant national bank, and denies the acts of conversion. The defendant further alleges that he purchased said goods, and merchandise from the lawful owners of the same. The defendant then sets up, by way of a further and separate defense,, and as an equitable set-off to any damages, if any, recoverable by the plaintiff in respect to the alleged matters complained of, that, the Powerville Felt-Roofing Company and the T. New Manufacturing Company had had large dealings with each other, and that during the year 1892 the said T. New Manufacturing Company sold and delivered large amounts of merchandise of great value to the Powerville Felt-Roofing Company, at fair market rates agreed upon therefor, and that at this time the answering defendant was the personal owner and holder of the stock of said T„ New Manufacturing Company, owning and holding more than ninety per cent, of the same; that, in order to obtain credit of said T. New Manufacturing Company and of this defendant, the treasurer and secretary of said Powerville Felt-Roofing Company, during the year 1892, stated and represented to the defendant, as an officer of the T. New Manufacturing Company, that the Power' ville Felt-Roofing Companv was solvent, responsible, and able to pay its debts; that such statements and representations were believed by said T. New Manufacturing Company and its officers, and that, believing and relying upon such statements and representations, large amounts of merchandise were sold and delivered from time to time in 1892, for which merchandise so purchased the said Powerville Felt-Roofing Company gave its notes to the T. New Manufacturing Company, aggregating in value about $35,000. The defendant then alleges that said Powerville Felt-Roofing Company was judicially declared insolvent on the 21st of December, 1892, and went into the hands of a receiver, in whose custody and administration said company, its property and effects, ever since have been and now are. The defendant then alleged that lie became the lawful owner and holder, for a full, valuable ■consideration, of certain of said notes of the Powerville Felt-Roofing Company so made and delivered to the T. New Manufacturing Company for merchandise sold and delivered before the maturity of each thereof, and that he now owns the judgments severally in said answer described, obtained on said notes. Then follows a description of the notes and judgments. None of said notes became due until after the appointment of the receiver of the Powerville Felt-Roofing Company. The defendant further .alleges, in his capacity as owner in chief and holder of more than ninety per cent, of the stock of the T. New Manufacturing Company, that in an action brought against the defendant this receiver swore that the claims of creditors of said Power-ville Felt-Roofing Company filed with him aggregated upwards of $130,000, and that the total amount of assets in the receiver’s hands did not exceed the sum of $1,000 ; and the defendant thereupon alleges, upon information and belief, that the Power-ville Felt-Roofing Company is hopeless by insolvent, and judgment is demanded that said notes and judgments obtained thereon may be applied in reduction and cancellation of the claims, if any, "which may be found to be due from the defendant to the plaintiff, etc. The defendant set up for a further and separate answer, and as an equitable set-off, etc., that before the appointment of the receiver, and before the 21st day of December, 1892, the said Powerville Felt-Roofing Company obtained by fraud and false and fraudulent representations, from the T. New Manufacturing Company, large amounts of merchandise of the value of $35,000 and that said manufacturing company took and received said notes from the Powerville Felt-Roofing Company in payment therefor ; that, except for such false and fraudulent statements and representations so made by said Powerville Felt-Roofing Company, the T. New Manufacturing Company would not have received such notes, and this defendant would not have indorsed the same or procured the same to be indorsed, and that in so doing he believed and relied on the truth of the statements and representations so made by the Powerville Felt-Roofing Company when said notes were so delivered and received. The defendant further alleged that such representations were made to influence the sales of the merchandise aforesaid, and to induce the defendant to indorse said notes, and that such statements and representations were made with intent to deceive and defraud the defendant; that,, at the maturity of each of said notes, demand was made and payment refused, and the defendant elects to rescind the contract of sale of said merchandise by the T. New Manufacturing Company to the Powerville Felt-Roofing Campany, and to rescind the delivery of said goods, and also to rescind the contract of indorsement upon which the discount of said notes was procured. The defendant further alleges that he brings into court, and tenders to-the plaintiff, said notes, and tenders and offers to assign such judgments so obtained to the plaintiff. The defendant for a further and separate answer, and as an equitable set-off, alleges that on the 25th day of November, 1892, one William H. Eberts and John Eberts, being lawful and genuine creditors of the Powerville Felt-Roofing Company, had duly obtained a judgment against said company in the sum of $81,000 in the circuit court of Illinois in and for Cook county, and that thereafter, and on or about the 5th day of November, 1892, for a valuable consideration, said judgment so obtained was duly assigned to the defendant, who is now the lawful owner and holder of the same; and he prays that he may be allowed to equitably offset so much of said judgment as would satisfy any claim which might be established against him. The defendant further alleges that he is powerless to recover his just rights in any action at law or proceeding in equity againstthe Powerville Felt-Roofing Company, or the plaintiff as receiver thereof, and that unless he is aided by the equitable powers of the court in ascertaining and maintaining his just rights he will suffer great and remediless wrong and injury. The plaintiff demurred to so much of the answer as consisted of new matter as insufficient in law, upon the face thereof, to constitute any defense or offset to the complaint herein. The plaintiff also demurred to the counterclaims contained in said answer upon the ground that neither of said counterclaims is of the character specified in section 500 of the Code of Civil Procedure, and upon the further ground that neither of said counterclaims states facts sufficient to constitute a cause of action. The court below sustained the demurrer, and from the interlocutory judgment thereupon entered this appeal is taken.

The ground upon which the appellant claims the right to offset the claims set up in his answer is that he is in equity entitled to a set-off because of the fact of the insolvency of the company and the circumstances under which the debts had their origin. We have examined the various authorities to which our attention has been called by the learned counsel for the appellant, but we are unable to see that any of them have any application to the facts which exists in the case at bar. Most of them are actions in equity, where the set-off is allowed upon the theory that a person asking relief "in equity must do equity; and the others are where cross demands ex contractu exists against and in favor of two parties, and where, from the nature of the claims and the situation of the parties, justice cannot otherwise be done. The most familiar instances of the rule are cases where a depositor in a bank,is allowed to offset the amount of his deposit balance against indebtedness to the bank upon its failure, although perhaps such indebteduess to the bank may not have been actually due at the time of the failure of the bank. But we have found no case where, when the action is ex delicto for the wrong of the defendant, an equitable offset of the defendant will be allowed. If such a procedure could obtain, we might easily imagine a new way to get payment for old debts. All that a creditor of an insolvent corporation, of which a receiver had been appointed, would have to do in order to procure a preference over the other creditors of the corporation, would be to take possession of the property of the corporation and convert it to his own use, and, when an action was brought for its conversion, ask to offset his claim. The mere statement of this proposition seems to show that the position of the appellant cannot be sustained. The interlocutory judgment should be affirmed, with costs. All concur.


text:
    In the Matter of the Probate of the Will of Julia O’Dea, Deceased.

      (Supreme Court, General Term, First Department,

      Filed February, 1895.)

    Will — Insane delusion. An erroneous belief, suggested as a reason for the disinheritance of an heir, in order to affect the validity of the will of the testator, must be shown to be an insane delusion.
    Appeal from a deci'ee, admitting a will to probate.

      H. B. B. Stapler, for app’lts ; Francis L. Wellman, for resp’ts.
   Per Curiam.

Decree affirmed, with costs, on opinion of the surrogate.

The opinion of Surrogate Fitzgerald is as follows:

The paper offered for px-obate is dated May 23, 1893. The issues raised will be decided mainly upon the testimony of the witnesses, who, to my mind, are unbiased, and who have no motive, either pecuniary or by reason of ties of kinship, to warp or influence their evidence. The first subject for consideration is the question of the execution of the paper. Mr. Neville and his son, who are the subscribing witnesses to the paper of May 23, testify to its subscription, publication, and attestation. They also express the opinion that testatrix was of sound mind at the time the will was executed. The paper bearing date September 3, 1891, and prepared by the same draftsman, if I recall the testimony correctly, is in some degree different from the one offered for probate. It was admitted in evidence as an expression of testatrix’s then state of mind as to her purpose with regard to her property, and, in considering the case, I shall refer to that document as well as the one under consideration. By the first paper, that of September 3d, she bequeathed a legacy to Father Flood of $300. She also made pro vision for her nieces, one of whom was Bridget Cronin, now deceased. Of hex-, as appears by the testimony, she was vexy fond. After the death of Bridget, Mrs. O’Dea went to the office of Mi". Neville, and asked that her will be reformed, withdrawing the bequést made to the nieces. In my judgment, her feeling for her niece Bridget Cronin was the motive for including others.in that will. I reach this conclusion on the testimony of witnesses whom I regard as unbiased. Bridget having died, she executed the will of May 23, 1893, and in it increased the legacy to Father Flood from $300 to $1,000.

It is a sound rule that where a feeble person is far advanced in years, as was Mrs. O'Dea (I think she was nearly eighty-five), the court should scrutinize carefully the circumstances attending the preparation and the execution of the paper which ia offered for probate. As I have suggested, the subscribing witnesses are emphatic in stating their belief that she had ample mental capacity. In this connection, I may refer to the testimony of Mr. McQueeney, called by the contestants, who, from what I could see of his demeanor on the stand, was an indifferent party, unprejudiced and ■unbiased. Either under the direct or the cross-examination, it was drawn from him that he made visits to Mrs. O’Dea, whom he had known since 1848. On visits made to her three months previous to June, 1893, which would be about the commencement of April, he had a conversation with her relating to matters of family history. He stated that he took no special interest in the subject of the conversation. He had another conversation with her in June, 1893, when, I think, she invited him to partake of her hospitality. He was then with her about two hours. He says that her conversations were sensible and rational. She was dissatisfied with the management of her house and with her servants, and said she was going to break up and go into one of the institutions which she has named as a beneficiary in her will. That is important in showing her mental capacity. It shows also that she had an appreciation of those institutions. She concluded the conversation by stating that Father Flood would take care of her, and that he had charge of all her matters.

With reference to her alleged delusion, the rule of law I an- - mounced in the late case of In re Johnson's Will, 27 N. Y. Supp. 649, is, in substance, that an erroneous belief suggested as a reason for the disinheritance of an heir, to affect the validity of the will of a testator, must be shown to be an insane delusion. The young girl Conlin, respecting whose condition it is claimed that testatrix was laboring under a delusion, impressed me as being a person not of a robust constitution. She admitted on her examination by proponent's counsel that she was not always strong, and that "she had pulmonary trouble. Her voice showed it. This satisfactorily accounts for the not unreasonable supposition of the testatrix that the girl would not live to enjoy a legacy if one was provided for her. Mrs. Levy, the landlady of the testatrix, testified that Mrs. O’Dea came to her and paid her rent every month; that she knew what she gave her, and, if she ever gave her a dollar more than she ought, she insisted on the correct change. She did not tell Mrs. Levy at the time the will was made that she had beeti to a lawyer’s office. We know that, when a person makes a will, he ■does not proclaim it from the housetop, nor does he inform those whom he has ignored that there is a will in existence. It is not at all improbable that he would fail to inform those for whom hehad provided. The making of a will is frequently an act known to those only who participate in its execution until after the testator’s death. The fact that Mrs. O'Dea did not inform her nieces or Mrs. Levy that she had made a will has, to my mind, no significance. If she had told everybody in the house who her beneficiaries were, and whom she had not provided for, it would have been strange. Another fact which goes to show Mrs. O’Dea’s mental condition is her attendance at the different banks. On the 8th day of February, 1893, she personally attended at the Emigrant’s Savings Bank in this city, and drew therefrom $22.50 on a draft which she had signed. She also on August 12, 1892, and on March 23,1893, personally called at the Seaman’s Savings Bank in this city, and drew therefrom, on drafts signed by her, the respective amounts of $91.20 and $60.

The testimony of the nieces is open to this criticism: it is that of interested parties. I think, from a consideration of it and of the other evidence in the case, it is my duty to decide the case, in the main, upon the testimony of witnesses who are disinterested, and whose evidence I am convinced is unbiased and trustworthy. On the evidence, I am satisfied that Mrs. O’Dea had testamentary -capacity. She knew of what her property consisted, knew her relatives, and it is proved by a number of the witnesses that she was a woman of considerable intelligence. On a review of the whole case, I am satisfied that the will was properly executed in accordance with the requirements of the statute ; that Mrs. O’Dea had capacity to execute it; and that she was not unduly influenced. A decree may be presented admitting the will to probate.