author: Beadlet, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. WILLIAM COOK, Appellant.

      Criminal law — indictment for obtaining money by false pretenses — 2 JR. 8., 677, see. 53 — when it need not allege injury done to any person — what evidence admissible to prove the intent and purpose of the accused.

    The defendant was tried, convicted and sentenced upon an indictment charging that he, with intent to cheat and defraud one Little, did feloniously, unlawfully and designedly falsely pretend and represent to him that a certain promissory note, made by one Albert Pike for $450, payable to the defendant, was made by one Albert Pike, who lived in a certain stone-house in the town of Concord, and that it was not made by a certain other man by that name residing in such town; that Little believing such false pretenses and representations, and being deceived thereby, was induced by reason of them to, and did, deliver to the defendant, who received $400 in money of him by means of such false pretenses with the intent feloniously to cheat and defraud Little of that sum. The counsel for the defendant moved at the trial to quash the indictment on the ground that it did not allege that any one was injured, wronged or harmed by the pretenses, as it was not charged that the one Pike was responsible and the other irresponsible.

      Held, that the motion was properly denied as the indictment contained all the allegations required by the statute (sec. 53 of 2 R. S., 677) to constitute the oFense with which the defendant was charged.

      Upon the trial the prosecution was allowed to give evidence as to the responsibility of the person so represented to be the maker of the note, and that of the person who did make it, against the objection of the defendant that these facts were not set forth in the indictment.

      Held, that the evidence was properly received as tending to characterize the purpose and intent with which the defendant made the false pretenses.
    That it was not error to permit the maker of the note in question to testify as to the giving of it to the defendant, and the circumstances under which this was done, as the evidence bore upon the conduct and alleged intent of the defendant.
    Appeal from a judgment of tbe Cattaraugus Sessions, convicting tbe defendant of tbe crime of obtaining money by false pretenses.
    Tbe indictment charged that tbe defendant, with intent to cheat and defraud one Thomas Little, did feloniously, unlawfully and designedly falsely pretend and represent to him that a certain promissory note, made by one Albert Pike for $450, payable to tbe defendant, was made by one Albert Pike, who lived in a certain stone-house in the town of Concord, county of Erie, and that it was not made by a certain other man by that name residing in such town ; that Little believing such false pretenses and representations, and being deceived thereby, was induced by reason of them to, and did, deliver to the defendant, who received $400 in money of him by means of such false pretenses with the intent feloniously to cheat and defraud Little of that sum. And the alleged false pretenses and representations are by suitable allegations negatived.
    The defendant was tried, convicted and by the judgment of the court sentenced to imprisonment for six months and to pay a fine of $500, and to stand committed until it was paid, not exceeding one day for each dollar. The defendant appealed.

      Ansley dé Davie, for the appellant.

      G. M. Rider, district attorney, for the respondent.
   Beadlet, J.:

The defendant’s counsel moved at the trial to quash the indictment on the ground, that it did not contain the requisite allegations to constitute an offense, in that it did not allege that any one was wronged, harmed or injured by the pretenses and representations charged to have been made, although false, as it did not charge that the one Pike was responsible and the other irresponsible. And such is the contention on the part of the defendant here.

The offense is given by statute, which provides that “ every person who, with intent to cheat or defraud another, shall designedly, by color of any false token or writing, or by any other false pretense, obtain the signature of any person to any written instrument, or obtain from any person any money, personal property or valuable thing, upon conviction thereof shall be punished,” etc. (2 B. S. 677, § 53.)

The requisites prescribed by the terms of the statute do not embrace injurious consequences as an element of the crime, further than may be implied by the fact of obtaining money or property by means of false pretenses used with intent to cheat and defraud. The matters alleged in the indictment would not constitute a criminal offense at common-law. That required that an indictable fraud was only such as affected the public, such as resulted from the use of false weights, measures or tokens, etc. (People v. Babcock, 7 Johns., 201; People v. Miller, 14 id., 371.) But more than 100 years ago the crime was extended in England so as to embrace private frauds, by statute, of which that of this State is substantially a transcript. And in the early adjudications under that of this State, the cases arising upon the English statute were frequently cited as authority.(Young v. The King, 3 Durn. & E., 98; People v. Johnson, 12 Johns., 292.) And the cases in that country and this have been quite uniformly to the effect that the provisions of the statute contain all the requisites for the substantia] allegations of an indictment for an offense created by it. (People v. Genung, 11 Wend., 18; People v. Crissie, 4 Denio, 525; People v. Higbie, 66 Barb., 131; Thomas v. People, 34 N. Y., 351; Young v. The King, supra; The Queen v. Kenrick, 5 A. & E. [N. S.], 49 ; Reg. v. Jennison, 9 Cox’s Crim. Law Cases, 158.) But the false pretenses alleged must be such that they may operate prejudicially, and if it appear that they cannot prejudice the person to whom they are applied no offense is charged.

In People v. Galloway (17 Wend., 540) the deed to which the signature of a married woman was thus obtained, not being acknowledged by her was void and necessarily ineffectual for any purpose, and could not be prejudicial to her. It was, therefore, held that the procuring of such defective execution of the deed by her by means of false pretenses constituted no crime within the statute. (And see Dord v. People, 9 Barb., 671.)

In People v. Clough (17 Wend., 351) false pretenses were used to obtain charity, and it was held that the obtaining money by the applicant for that purpose by such means was not a criminal offense, as they called upon the donor to perform a moral duty only, arising out of compassion, and that the statute was designed only to protect persons in their commercial dealings; and in People v. Thomas (3 Hill, 169) the false pretenses induced the performance of a legal duty, and for that reason constituted no criminal offense.

In the case at bar, the representations alleged to have been made, with the intent to cheat and defraud the party who was thereby induced to part with his money, were that the note presented was made by a particular person, when in fact it was not, but was made by another having the same name. The obtaining money by such means was clearly within the statute, and the indictment contains all the elements of crime required by its provisions, and although there is no allegation that the maker of the note was less responsible than the person represented as the maker, yet it charges that the person to whom they were made, was induced by the false pretenses to part with his money, and that they were made with intent to cheat and defraud him, and it may be that he was prejudiced. The purpose of the statute is to protect against imposition and not to permit guilt to depend upon the uncertainty of the determination of the question whether any pecuniary injury necessarily resulted in some view which might be taken of the situation. The indictment alleges, that the person applied to by the defendant was induced to take the note on the credit of the party who was represented to him as the maker. It cannot be inferred that he would have done so on the credit of the person who had in fact executed the note. The question of their relative responsibility was not necessarily a substantial element in the constituents of the statutory crime and, therefore, it was not necessary to allege it. The motion to quash the indictment was properly denied.

The prosecution gave evidence in respect to the responsibility of tbe person so represented as the maker of the note, and of the person who did make it, to which objection and exceptions were taken by the defense; and it is contended that the reception of this evidence was error because those facts were not the subject of allegation in the indictment.

It is true, as claimed, that all the matters essential to the offense must be alleged, and that no evidence or facts relating to it are competent except as they are in support of those allegations, that is to say, evidence will not be permitted of facts not within the matters alleged in the indictment. (Barber v. People, 17 Hun, 366; People v. Gates, 13 Wend., 311.) The question of intent of the defendant to cheat and defraud by the use of the representations and pretenses, was one essential fact of the crime, and this evidence was competent and proper upon that allegation of the indictment and in support of it. The responsibility of the one represented as the maker, and the want of means of the person who was the maker of the note, if known to the defendant, went to characterize his purpose and intent in making use of the false pretenses to get the money, and it was incumbent upon the prosecution to establish by evidence the criminal intent of the defendant. (Clark v. People, 2 Lans., 331; Wood v. People, 53 N. Y., 511.)

It was not error to permit the maker of the note in question to testify to the transaction of the giving it to the defendant, and the circumstances under which it was made, and that as part of the transaction he also then signed and delivered to the defendant two other notes. It appears by this evidence that this person then made three notes amounting in all to $1,000, to do which he was supplied by the defendant with pen and ink at the saw-mill where the maker was at work; that the notes were given for mowing maciiine stock which he never received from the defendant, and that at the time the notes were made by him and taken by the defendant the latter said he would take care of them, but did not state the purpose for which he intended to use the notes. The fact that the defendant obtained the two other notes was not important, but it was a proper subject of inquiry as bearing upon the conduct and alleged intent of the defendant. We have examined all the exceptions taken to the reception and rejection of evidence, and to the charge as made, and refusals to charge as requested, and think no error was presented by any of them. The charge made to the jury presented fully and fairly the propositions for their consideration, and wliat was required to constitute the offense. And the proposition of the request to charge made by the defendant’s counsel had. been substantially covered by the charge as made.

Upon the merits the evidence was sufficient to justify the conclusion and verdict of the jury. And no occasion appears for granting a new trial.

The judgment should be affirmed, and the proceedings remitted to the Court of Sessions of Cattaraugus county.

Smith, P. J., Barker and Haight, JJ., concurred.

Judgment and conviction affirmed, and proceedings remitted to the Court of Sessions of Cattaraugus county to proceed thereon.


source: Caselaw Access Project

author: BaeKeb, J.:

license: Public Domain

text:
    In the Matter of the Petition of BRIDGET HYDE for an Order Directing the Production of JOHN LANE and Others, Tenants for Life of Certain Real Estate, by ELLEN GAGE.

      Pi'oceedings to compel the production of a tenant for life — not applicable to cases where the estate of the occupant is a base or qualified fee — Code of Civil Procedure, sec. 2303.
    A testator gave and devised to his daughter Maria, her heirs and assigns, forever certain lands upon this condition: “But in case my said daughter Maria McLean should die without issue, then I give and devise to my nephew John Lane, son of my brother Patrick Lane, the above described premises, to have and to hold the same during his natural life, and after his death to my daughter Bridget McLean, and to her heirs and assigns, forever.” Bridget McLean claiming that Maria had died without issue, and that John was also dead, instituted proceedings, under section 2303 of the Code of Civil Procedure, against the person in possession of the lands to compel her to produce the said persons or prove that they were living.

      Held, that the proceedings should be dismissed as not authorized by the statute.
    That even if it were conceded that Maria had a base or qualified fee, terminable on her death without issue, instead of an absolute fee, yet her estate was not that of a tenant for life in the premises in the Sense in which that term is used in the statute upon which these proceedings were based.
    Appeal from an order of the Erie Special Term, denying a motion for an order directing that certain alleged tenants for life of certain real estate in tbe city of Buffalo be produced by one Ellen Gage, the occupant thereof.
    The petitioner bases the proceedings which she has instituted upon the provisions of section 2302 of the Code of Civil Procedure. She claims to be entitled to the real estate described in the petition, if Maria McLean be dead without issue of her body surviving, and if one John Lane be also dead, as is averred in the petition. By the last will and testament of John McLean, which was admitted to probate in the Surrogate’s Court of Erie county- on the 17th day of February, 1885, he gave and devised to his daughter, the said Maria McLean, her heirs and assigns forever, the lands in question, upon this proviso or contingency: “ But in case my said -daughter Maria McLean should die without issue, then I give and devise to my nephew John Lane, son of my brother Patrick Lane, the above-described premises, to have and to hold the same during his natural life, and after his death to my daughter Bridget McLean, and to her heirs and assigns forever.”
    The petitioner is the Bridget McLean mentioned in this clause of the will. It is averred in the petition, upon information and belief, that Maria McLean intermarried with one Clark, and that she died more than one year ago without issue, and that the petitioner believes that J ohn Lane is now dead. The respondent Ellen Gage is in possession of the premises, and in her answer she dei$»d that either Maria McLean or John Lane is dead, and averred'thiat both are living. The petition was presented at the Erie county. Special Term, and after hearing the parties the court denied the application, without costs, and from that order the petitione^’appeals.

      O. A. Cottle, for the petitioner, appellant.

      Tracy C. Becker, for the respondent.
   BaeKeb, J.:

The Special Term properly dismissed the petition and the order should be affirmed. We place our concurrence upon the ground that upon the conceded facts no case was made within the statute requiring the respondent Ellen Gage to produce Maria Clark, the alleged life tenant of the premises. Whether or not she was a life tenant depenas upon the provisions of the will of John McLean. The respondent contends that by that will Maria Clark took a fee simple absolute, and that the petitioner Bridget Hyde, named in the will as Bridget McLean, the daughter of the testator, would have no estate in the lands, although Maria Clark be dead and left no issue surviving as she survived the testator. This contention on her part is placed upon the ground that the proviso or contingency expressed in the words, “ but in ease my said daughter Maria McLean shall die without issue,” refers to the time of her death happening in the lifetime of the testator, and as she survived the testator she at once upon his death became the absolute owner.

The petitioner maintains that Maria McLean took only a contingent estate in the foe, which was reduced to a life estate when the contingency named in the will happened, to wit, “ her death without issue.” In support of her position as to the proper construction to be placed on the will her counsel cites Buell v. Southwick (70 N. Y., 581); Nellis v. Nellis (99 id., 505; S. C., 3 Eastern Rep., 423).

It was held that by the respective wills under consideration, in those cases the primary devisee took only a contingent estate in fee, which was liable to be reduced to a life estate in case of devisee’s death without . children or any descendants of children. The petitioner bases her claim of title and the right to the possession of the premises upon the ground that by the will of John McLean, Maria Clark took only a life estate in case she died without issue.

The statute authorizing summary proceedings for the purpose of ascertaining whether a life tenant is dead or not has no application to a case like the one now presented. The title of the Code regulating the proceedings is entitled proceedings to discover the death of a tenant for life.” The section upon which the petition is based provides “a person entitled to ■ claim real property after the death of another, who has a prior estate therein, may not oftener than once in each calendar year, apply by petition to the Supreme Court * * * for an order directing the production of the tenant for life as prescribed in this title, by a person named in the petition, against whom an action of ejectment to recover the real property can be maintained, if the tenant for life is dead; or, where there is no such person, by the guardian, husband, trustee or other person, who has, or is entitled to, the custody of the person of the tenant for life, or the care of his estate.” In case an order is granted the person to whom, it is directed is required, at a time and place therein to be mentioned, before the court or a referee therein designated, to produce the person upon whose life the prior estate depends, or in default thereof, to prove that he is living. (Sec. 2305.)

The form and effect of the final order, if one is granted in support of the proceedings, is found in section 2310, which provides that “ if it appears * * * that the person upon whose life the prior estate depends, was not produced; and if the party required to produce him or to prove his existence, has not proved to the satisfaction of the court that he is living, a final order must be made, declaring that he is presumed to be dead, for purpose of the proceedings, and directing that the petitioner be forthwith let into possession of the real property as if that person was actually dead.”

This title of the Code is but a reproduction of the Revised Statutes on the same subject, with some added provisions as to the mode and manner of procedure. It is manifest that the statute applies only to a case where the prior estate is held by one who is a life tenant proper in the legal and technical sense of that term.

A tenant for life, of estates, is one to whom lands or tenements are granted or devised, or to which he derives title by operation of law, for the term of his own life or the life of another. This will, in terms, does not givo the devisee, Maria McLean, a life estate only ; on the contrary, she is given a contingent fee, as the plaintiff admits, but claims that the contingency has happened by which the fee was reduced to a life estate. The petitioner is necessarily forced to maintain, as her learned counsel has argued before us, that the prior estate devised to Marie McLean, although properly denominated a fee, because it might last forever, was,, nevertheless, a base or determinable fee, because it was liable to be defeated by the happening of the contingency upon which it was limited; in other words, that the estate devised to the first taker by the will was a determinable or qualified fee. Therefore, in a strict sense, Maria was never a life tenant of the premises. Assuming that she is now deceased, yet, if at the time of her death she was in possession as owner of the fee, and if she, in fact, left children surviving, then they would take an absolute fee as her heir-at-law by the express terms of the will, and this the petitioner admits.

The only fact which the court has the power to try and determine in these proceedings is whether Maria McLean and John Lane are now dead or living. If it should be found that they are dead, then it does not follow that the respondents should be required to surrender up the possession of the premises to the petitioner, for Maria may have left descendants, who would have a fee in the promises, a fact this court has no jurisdiction to determine in this matter.

We purposely refrain from expressing any opinion as to the proper construction which should be given to the will of John McLean, beyond expressing the opinion that Maria McLean, the first taker, was not a tenant for life of the premises, in the sense in which that term is used in the statute upon which these proceedings are based.

The order should be affirmed, with ten dollars costs and disbursements. (Code, § 2316.)

Smith, P. J., Haight and Bradley, JJ., concurred.

So ordered.


author: BARKER, J.:

text:
    THE FLOUR CITY NATIONAL BANK OF ROCHESTER, Respondent, v. JOHN C. DOTY and SUSAN F. DOTY, Appellants.

      Judgment by confession — when invalid because of a failure to state in detail the facts and circumstances out of which the indebtedness avrose— Code of Civil Procedure, sec. 1274.
    In this action, brought by a judgment creditor to set aside as fraudulent a judgment confessed by the defendant John C. Doty, in favor of his wife, it appeared that the statement upon which the judgment was entered, alleged in relation to the indebtedness that the debt for which the judgment was confessed arose upon three several promissory notes in writing, which were then described, the dates, amounts and times of payment being set forth. It was then stated “that all of said notes are past due, and the sum of $5,718.77 is now due and owing to the plaintiff from me upon said notes this day; that the three several notes above stated, and upon which this judgment is confessed, was given by the defendant John O. Doty to the plaintiff Susan F. Doty at the dates above stated, and for the amounts above stated; and all of said notes were so given by said defendant to plaintiff for money loaned to the defendant by the plaintiff, and the amount now due and owing to plaintiff by me, the defendant, upon said notes, for borrowed money, borrowed of plaintiff, is the sum of $5,713.77.”

      #eld, that the statement was fatally defective, in that it did not state the sum of money borrowed; that the statement would be literally true even if the real sum borrowed was less than the face of either of the notes.
    Upon the tridl the wife was examined as a witness in her own behalf and testified that one of the notes was not given for money loaned by herself to her husband, but that on the day it bore date she signed a note as security for her husband in the sum for which it was made, and pledged securities of her own to secure its payment, the proceeds of the loan being received by the husband, which note remained unpaid.

      Seld, that the failure to state these facts in the statement rendered the judgment entered thereon fraudulent and void as to the husband’s creditors.
    Appeal from a judgment in favor of the plaintiff, entered in Genesee county upon the report of a referee.

      T. P. Ileddon, for the appellants.

      G. F. Bissell, for the respondent.
   BARKER, J.:

The plaintiff is a subsequent judgment creditor of the defendant John C. Doty, and this action is to set aside a judgment confessed by him to Susan F. Doty, his wife, and also a conveyance of lands made by the said Doty to his said wife, as fraudulent and void. The deed of conveyance is dated the 15th day of March, 1884, for the sum of $5,713.77. The judgment is attacked upon the ground that it is fraudulent and void, and made with' intent to hinder and delay the creditors of the said John C. Doty in the collection of their debts, and, also, upon the ground that the statement signed and verified by the defendant is not in compliance with section 1274 of the Code of Civil Procedure, for the reason that it fails to state concisely the facts and circumstances out of which the debt arose, and does not show that the sum, for which the judgment was confessed, was justly due, or to become due the plaintiff. The statement relating to the indebtedness is as follows: “ That said debt, for which this judgment is confessed, arises upon three several promissory notes in writing. One of said notes is dated Machias, April 1, 1873, made and given by this defendant to the above-named plaintiff for the sum of six hundred and fifty dollars, payable two years after its date to Susan F. Doty, or bearer, with use, for value received. Paid on tins note forty-one dollars and six cents. One note is dated Pavilion, Dec. 14, 1874, made and given by this defendant to this plaintiff, for the sum of twelve hundred dollars, payable five years after its date, to Susan F. Doty (this plaintiff), or bearer, with use, value received. Paid oh this note $450; and one note dated Pavilion, N. Y., July 2, 1883, made and given by this defendant John C. Doty to the plaintiff herein, Susan F. Doty, for the sum of three thousand dollars, payable six months after its date to Susan F. Doty, or bearer, with use. That all of said notes are past due, and the sum of $5,713.77 is now due and owing to the plaintiff from me upon said notes this day. That the three several notes above stated, and upon which this judgment is confessed, was given by the defendant John C. Doty to the plaintiff Susan F. Doty, at the dates above stated, and for the amounts as above stated, and all of said notes were'so given by the defendant to plaintiff for money loaned and lent to the defendant by the plaintiff, and the amount now due and owirig to plaintiff by me, the defendant, upon said notes, for borrowed money, borrowed of plaintiff, is the sum of $5,713.77.”

The statement is defective for the reason there is a failure to state the sum of money borrowed. At the most, it is only a statement that the defendant John C. Doty borrowed of his wife a sum of money, and the statement would be literally true if the real sum borrowed was less than the face of either of the notes. The statute requires that the confession must state concisely the facts out of which the indebtedness arose. It is insufficient to make a general statement that the indebtedness arises upon a promissory note, setting forth and describing the same. No one can determine from this statement the exact amount of money loaned for which each of the said notes was given, which constitute the basis of the alleged indebtedness for which the judgment was confessed.

The object of the statute in requiring a detailed statement of the facts and circumstances out of which the indebtedness arose, is to-inform other creditors of the dealings and transactions which had taken place between the parties to the judgment, that they might ascertain by proper inquiry that the indebtedness was real and not fictitious, and satisfy themselves, if such was the fact, that the judgment was based upon a good consideration and valid in law. The statute looks not to the evidence of the demand, but to the facts in which it originated; in other words, to the consideration which sustains the promise. The law requires this to be concisely set forth in the statement which is to form a part of the record, and in this way only does the provision furnish any additional security to creditors against the fraudulent combination of the parties to the judgment. (Chappel v. Chappel, 12 N. Y., 215; Citizens’ National Bank v. Allison, 37 Hun, 137.)

On the trial the wife was examined as a witness in her own behalf, and it appears from her own evidence that the $3,000 note was not given for money loaned and advanced by herself to her husband, but that she, on the day this note bears date, signed a note as security for her husband in the sum of $3,000, payable at the Canandaigua Bank, and pledged securities of her own for its payment, and that the proceeds of the loan were used by her husband, which note remains unpaid. She could have taken a confession to secure herself against the contingent liability assumed on the signing of the note as .surety, but the statute requires in such a case that the confession must state concisely the facts constituting the liability assumed, and must show that the sum confessed does not exceed the amount of the liability. As there was a failure to comply with the requirements of the statute, the confession of judgment is regarded in law as fraudulent and void, and may be attacked and set aside by a subsequent judgment creditor in an action prosecuted for that purpose. (Dunham v. Waterman, 17 N. Y., 9; Lawless v. Hackett, 16 Johns., 149; Symson v. Silheimer, 40 Hun, 116.)

The value of the mortgagor’s interest in the real estate conveyed to his wife, Susan F. Doty, was found by the referee to be $5,000, ■ and he also finds that no consideration was in fact paid by the grantee at the time of the execution and delivery of said conveyance, the expressed consideration being arbitrarily used and not representing any specific financial transaction between the parties. He also found, as a matter of fact, that the deed of conveyance and confession of judgment were, and each of them was made, executed and delivered by the debtor, John C. Doty, with an intent to hinder, delay and defraud the plaintiff in this action, and for the express purpose of preventing the plaintiff from collecting his judgment. The circumstances connected with the execution and delivery oí the deed were such as to call upon Mrs. Doty to show' the real transaction, and that it was entered into in good faith and without any intent to hinder, defraud or delay the other creditors of her husband. The only consideration for the conveyance was the discharge of an indebtedness equal to the- amount expressed as the consideration claimed to be due from her husband to herself. The only evidence produced on her part was her own naked statement of loans and advancements of money by herself directly to her husband, made after her marriage and many years prior to the conveyance. Not one independent fact or circumstance was proved on the trial in corroboration of her own evidence. As she was an interested witness, it was for the referee to determine from her appearance and manner whether her uncorroborated statement was entitled to full credit. We are unable to discover any reason for reversing the judgment, and are satisfied with the conclusions reached by the referee on the facts and law of the case.

The judgment should be affirmed, with costs.

Smith, P. J., Haight and Bradley, JJ\, concurred.

Judgment affirmed, with costs.


author: 33arker, J.:

text:
    JOHN C. LEGGETT, Respondent, v. THE ROME, WATERTOWN AND OGDENSBURGH RAILROAD COMPANY, Appellant.

      Vailure of a railroad company to erect and maintain fences along its road — it is liable for all damages naturally resulting from its omission so to do.

    The defendant, a railroad company, acquired a right of way over and across the plaintiff’s farm. One of the fields lying on the side of the defendant’s road, consisting of about thirteen acres, was used as a pasture. For a period of nine weeks from May 1,1884, the defendant neglected and omitted to erect or maintain suitable fences of the height and strength of a division fence, as required by law, along the sides of its railroad across the lands of the plaintiff, in consequence of which omission the plaintiff was deprived of the use of his pasture lands for the said nine weeks, by reason whereof he sustained damages to the amount of seventy-two dollars.

      Held, that, he was entitled to recover the damages so sustained, from the defendant.
    That the duty of erecting and maintaining fences on the sides of their road, imposed by the general railroad act, was an imperative one, and that the defendant was liable for all damages naturally resulting from its omission to comply therewith.
    That the liability of the company was not limited to damages resulting from the killing or injuring of cattle, horses or other animals by the engines or agents , of the company.

      Knight v. New York, Lake Brie and Western Railroad Company (99 N. Y., 25) distinguished.
    Appeal from a judgment, entered upon a verdict in the plaintiff’s favor at the Orleans Circuit for the sum of seventy-three dollars damages and costs, and from an order denying the defendant’s motion for a new trial, founded on the judge’s minutes.
    The defendant is a corporation organized under the general railroad act. The line of its road is located over the plaintiff’s farm, through which it acquired the right of way for its road-bed of the customary width. One of the plaintiff’s fields, consisting of thirteen acres, and used as a pasture, lies on the south-westerly side of the defendant’s lands and adjacent thereto.
    It was admitted upon the trial that for a period of nine weeks from the, 1st day of May, 1884, the defendant neglected and omitted to erect or maintain suitable fences of the height and strength of a division fence, as required by law, along the sides of its railroad, across the land of the plaintiff, and that in consequence of the omission the plaintiff was deprived of the use of his said pasture lands for the said nine weeks. The plaintiff gave evidence tending to prove that his damages, resulting from the loss of the use of his pasture field, was seventy-two dollars. The defendant gave no evidence on the question of damages, and the case states that it waived the right to go to the jury on that question, and thereupon the court directed a verdict, to the jury, for the sum of seventy-two dollars.
    At the close of the evidence, the defendant requested the court to direct a verdict in its favor, for the reason: First.’ That the plaintiff has failed to make out a cause of action against the defendant. Second. That the statutory obligation imposed on the defendant to erect and maintain fences of the height and strength of a division fence, required by law, does not give the adjacent landowner a right of action to recover damages of the nature and character of those claimed by the plaintiff, arising from an omission to erect and maintain a fence, and that the damages, which maybe recovered under the provisions of the statute, are limited by the terms of the statute to injury and loss of stock entering upon the lands of the railroad company by reason of such defective fence, which shall be done by the agents or engines of the defendant, while operating the railroad. Third. That the plaintiff had a remedy by mandamus, •or by action, to compel the railroad company to build a fence. The motion was denied, and the defendant excepted.

      Edmund B. Wynn, for the appellant.

      Joel L. Wallcer, for the respondent.
   33arker, J.:

The plaintiff’s demand for indemnity for the injnry he has .sustained by reason of the defendant’s neglect to erect a fence on <the side of its road for the distance which it passes over his pasture field, is based upon the statute which imposes that duty upon the -company. At common law, adjacent landowners were not required ito construct division fences for the convenience of each other and ;the protection of their crops growing thereon. The statute requiring railroad companies to erect and maintain fences on the division line between its land and that of the adjacent owner, provides that ■“ every corporation formed under this act, shall erect and maintain fences on the sides of their road, of the height and strength of a division fence required by law, with openings or gates or bars therein, and farm crossings of the road for the use of the proprietors of lands •.adjoining such railroad, and also construct and maintain cattle-guards .at all road crossings, suitable and sufficient to prevent cattle and .animals from getting on the railroad. Until such fences and cattle-guards shall be duly made, the corporation and its agents shall be liable for all damages which shall be done by their agents or engines to cattle, horses or other animals thereon ; and after such fences and guards shall be duly made and maintained, the corporation shall .not be liable for any such damages unless negligently or wilfully .done.”

The obligation thus created is positive and unqualified and continues so long as the road is operated. The duty to erect fences of the height and strength mentioned, applies to the entire line of the road passing through agricultural districts and does not depend upon the nature of the occupancy or the character of the use made of the land by the adjacent owner. The defendant does not contend against this construction of the statute, and admits that the duty to construct fences is imperative on the company. It is upon this view of tile statute tiiat the obligation is made imperative, that the courts have held that a railroad corporation may be compelled, by decree in an equity action or by a mandamus, to erect a fence along the sides of its road and construct necessary and convenient farm crossings. (Jones v. Seligman et al., 81 N. Y., 191; Wademan v. A. and S. R. Co., 51 id., 568 ; The People ex rel. Garbutt v. R. and S. L. R., 14 Hun, 371; S. C., 76 N. Y., 294.)

The defendant places its defense upon the single legal proposition that the statute has limited the landowner’s right of action for damages against a railroad corporation, arising from its neglect to erect and maintain a fence, to a class of cases where the damages are caused by killing or injuring cattle, horses or other animals by the engines or agents of the company. In this contention I do not concur, and am of the opinion that the adjacent landowner may recover in a common law action all the damages which he may have sustained by reason of the neglect of duty imposed upon the corporation, by the statute.

In this case the omission imputed to the defendant is the failure to build a fence. The loss claimed to be sustained by the plaintiff is the diminished value of the use of the pasture field for the period the fence remained unconstructed. If it is made to appear, in view of all the facts of the case, that the damages sustained are the natural consequences of the omission, theu a perfect right of action was made out and the judgment should be sustained.

One of the objects of this statute, requiring the corporation to erect a fence, is the protection of the public, for whose use, as a means of travel and transportation of goods, the company was permitted to construct. the road, as the safety of their lives and property requires that all animals should be kept from the tracks traversed by its engines and cars. But I think that the legislature had also another object and purpose in view, and that was to enable adjacent landowners to use and occupy their lands in the same manner and as advantageously as they could if the road had not been constructed. Without a fence sufficient to turn domestic animals, it is obvious that pasture lands adjacent to a railroad land would have less rental value. It is the general custom in this country for farmers to allow their cattle to roam in the pasture field day and night during the season of pasturage and to go unattended by a herdsman.

The danger of cattle being killed or injured by passing trains is not the only reason why the rental value of lands would be diminished, without a fence sufficient to keep them off the tracks, but the chance and probability of their roaming away and becoming strays on the premises of others would be very great. If such an occurrence should happen that the cattle should be trespassers upon the lands of others, the owner of the cattle could not resist the claim of the injured party for damages, on the ground that the railroad company had not constructed a fence on the sides of its road, as required by statute. The words of the statute, “ until such fences and cattle-guards shall be duly made, the corporation and its agents shall be liable for all damages which shall be done by their agents or engines to cattle, horses or other animals thereon,” were not inserted, as I think, for the purpose of limiting the liability of a railroad corporation to the particular cases enumerated, but were so inserted so as to embrace that very class of cases, and bring them within the limit of its liability to adjacent landowners, in case of injury to their cattle, should they happen, in the manner indicated, to be injured by reason of the omission to erect fences.

By the rules of the common law, when a duty is imposed by law upon one person to do an act for the benefit and advantage of another, the omission to perform the obligation gives a right of action to the party intended to be protected and benefited by the act, if any damages result to him from a non-performance of the obligation. (Clark v. Brown, 18 Wend., 213.)

The legislature has declared some of the consequences which result to the railroad corporation by an omission on its par.t to comply with the requirements of the act, but not all of them. The question, as now presented, has not been heretofore passed upon by the courts in this State, but it would seem as if the intention of the legislature to give the adjacent landowner the benefit and protection which a fence of the height and strength required by statute secures to him, is clear and certain. The statute contains no negative words limiting its liability to the cases enumerated, and the words used should not receive the limited meaning contended for by the defendant.

The case of Knight v. The New York, Lake Erie and Western Railroad Company (99 N. Y., 25) is not in point. In that case the plaintiff’s horse, which was injured while upon the tracks of the defendant’s road, by running upon an nnplanked bridge, did not enter upon the lands of the company through an opening in the fence adjacent to the lands of the plaintiff, and it was held that, under the circumstances of that case, the defendant was guilty of no breach of duty which it owed the plaintiff, and that he was not entitled to recover the damages sustained by the loss of his horse. In commenting upon the case the court remarked: “ The fence, through the opening in which the plaintiff’s colt escaped upon the railroad track, was not a division fence between the premises of the plaintiff and the railroad company, which were adjacent to each other, and the company incurred no liability to the plaintiff by reason of the omission to maintain the fence except such as is imposed by statute. * * * But for that statute there could be no pretense of any liability on the part of the company for the injury to the plaintiff’s colt under, the circumstances of the case. It was the duty of the plaintiff by the common law to keep his colt confined by fences and the colt was a trespasser, if not the plaintiff, in driving him on the defendant’s bridge.” The court also said, that this act “does not impose upon them a general liability for any consequences which may result from an omission to do so (construct a fence), nor does it leave the question open what liability to third parties they shall be subjected to for such omission, for it defines, in express terms, the consequences for which they shall be liable to owners of cattle and horses getting on the track.” The court did not attempt to lay down the rule of liability which a railroad company is under by the terms of the statute to adjacent landowners, arising from an omission to construct a fence; but as to third parties, that is, those who are not adjacent landowners, whose cattle are injured upon the railroad tracks, then the injury must be done by the agents or engines of the company.

The facts of that case fail to bring it within the principal laid down in Corwin v. New York and Erie Railroad Company (13 N.Y., 42), where it was held that a railroad corporation, which omits to comply with the statute requiring it to erect and maintain- fences and cattle-guards, is liable to the owner of cattle which stray upon the track, from an adjacent close or the highway crossing, to and are injured by the engines of the company, although they were not lawfully in such close or highway, for the reason that the statute clearly requires some action on the part of the company to produce the injury either by mechanical or other agents of its own and excludes the liability for the injury which the cattle may do to themselves by straying on the track.

In Thomas v. Utica and Black River Railroad Company (97 N. Y., 245), the familiar rule was stated, that where a duty is imposed by statute an implied promise of performance arisés by reason thereof, and it was held that the duty imposed upon a railroad corporation to make and maintain fences and provide farm crossings for the benefit of adjacent landowners, and for a failure to perform that duty a common law action for damages would lie.

As the defendant waived all right to go to the jury on the question of damages and asked for no instruction as to the proper rule to be applied in measuring the plaintiff’s damages in this case, he cannot, on this appeal, claim that any error was committed in this respect. The only question presented is, whether the plaintiff made out a cause of action, and I think he did and the judgment should be affirmed.

Smith, P. J., Haight and Bradley, JJ., concurred.

Judgment affirmed.


author: Barker, J.:

text:
    LYDIA A. GAGE, Respondent, v. THE VILLAGE OF HORNELLSVILLE, Appellant.

      Costs — who is to he deemed the chief fiscal officer of a corporation witMn the meaning of section 3245 of the Code of Civil Procedure.

    The board of trustees of the village of HornellsviUe, acting as such, and not the treasurer thereof, is “ the chief fiscal officer of the corporation” within the meaning of that term as used in section 3245 of the Code of Civil Procedure, prohibiting the allowance of costs to the plaintiff, in an action against a municipal corporation, unless the claim upon which it is founded was, before the commencement of the action, presented for payment to its chief fiscal officer.
    In the absence of any express designation in the act of incorporation of the officer who is tobe deemed the chief fiscal agent, it is most reasonable to say that the officer, or the board of officers, who are vested, with the power to allow and direct the payment of all claims made against the corporation, is its chief fiscal officer rather than the officer whose only duty it is to pay out the money on the claim after it has been so ordered by others.
    Appeal from an order of the Monroe Special Term denying the defendant’s motion for a retaxation of costs.
    The plaintiff received injuries to her person by reason of the defective condition of a sidewalk within the limits of the village of HornellsviUe, and recovered a judgment on a trial before a referee for the sum of $356. Costs were taxed in her favor for the sum of $185.82. The defendant moved to set aside the taxation upon the ground that the plaintiff did not, before commencing her action, present her claim for payment to the chief fiscal officer of the corporation. The village was incorporated and acting under the provisions of chapter 288 of 1867.

      I. W. Hear, for the appellant.

      Bemis di Oreutt, for the respondent.
   Barker, J.:

The counsel for the defendant contends that the treasurer is the defendant’s chief fiscal officer within the ,meaning of section 3245 of the Code of Civil Procedure.

The plaintiff argues that the members of the board of trustees, acting as a board, are the chief financial officers and are charged with the financial affairs connected with the municipal government. The claim was not presented to the treasurer, but was to the board of trustees, who considered, acted upon and rejected the same. The treasurer is elected at each annual charter election. He is not designated in the charter or by any by-law as the fiscal officer of the defendant corporation. He is not authorized to audit or allow any claims whatever made against the corporation; nor is he a member of any board charged with such duties. His only duties are to receive, keep and disburse the funds of the village upon written orders, and to keep a proper account of the moneys so received and paid out, and to make an annual report to the board of trustees showing the condition of his account. All claims against the corporation must be presented in writing to the board of trustees, and if audited the same must be by a resolution entered - in the journal stating the fund out of which it is made payable. When so allowed, and the resolution certified by the clerk and signed by the president, the same is to be paid by the treasurer out of any proper funds in his hands for that purpose. By other provisions of the charter rhe board of trustees have the power to determine the sums of money which shall be annually levied and assessed upon the property for municipal purposes, and to examine all accounts and claims against the village and allow such as are just and legal.

The duties of the treasurer are purely clerical. He is vested with no discretion and not called upon to do any act which requires the exercise of his judgment on financial questions. All such duties are imposed upon the board of trustees, and they, acting as a board, constitute, in our opinion, the chief financial officer of the village of Hornellsville within the meaning of the phrase as u-sed in the section of the Code under consideration. It does not follow from the mere circumstance that the officer having the custody of the funds of a municipal corporation, and charged with no other duties except to pay out the same on written orders is designated treasurer, that he is its chief financial officer. In many municipalities the comptroller and not the treasurer is made the fiscal officer by reason of the duties he is to perform. If he had been designated in the charter as the chief fiscal officer for the municipality that would determine the character of his office so far as it is involved in the question under consideration. (Baine v. City of Rochester, 85 N. Y., 523.) But as he is not in terms designatéd as such officer we must examine alj tlie provisions of the charter for the purpose of ascertaining who, among its officers, occupies that .position. Unless some provision can be found to the contrary it is most reasonable to say that tbe officer or tbe board of officers who are vested with the power to allow and direct the payment of all claims made against the corporation is its chief fiscal officer, rather than the officer whose only duty it is to pay out the money on the claim, after it has been so ordered by others. This is the view we took of the case of Grier v. The City of Lockport (21 N. Y. Weekly Dig., 444), which presented similar questions.

The order should be affirmed, with ten dollars costs and disbursements.

Smith, P. J., Haight and Bradley, J.J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Barker, J. :

text:
    In the Matter of the Probate of the Last Will and Testament of JOHN BAIRD, Deceased.

      Probate of a will — right of a contestant to compel the proponents to produce witnesses, who were not present when the will was executed, for examination under section 2618 of the Oode of Oivil Procedure.

    Upon the death of one John Baird, his widow, Isabella, and one Hetzel, applied for the probate of an instrument purporting to be his last will and testament, in which they were named as executors, and by which he devised all his property to his widow and an infant daughter, Helen, making no provision for two other children of a former marriage, born prior to his marriage with tbe widow. The will was signed by two witnesses, both of whom were called and examined upon the hearing before the surrogate, the probate of the will being contested by the children of the former marriage upon the ground that it was procured by the fraud and undue influence of the widow.
    Before the proponents had closed their proofs the contestants filed with the surrogate a written notice requiring the examination of the widow and two other persons, as authorized by section 2618 of the Code of Oivil Procedure, which provides that any party who contests the probate of a will may, by a notice filed with the surrogate at any time before the proofs are closed, require the examination of all the subscribing witnesses to a written will, or any other witnesses whose testimony the surrogate is satisfied may be material, in which case all such witnesses who are within the State and competent and able to testify must be so examined.

      The surrogate refused to require the proponents to produce the widow upon , the ground that she was not present at the time the will was executed, and that the section only applied to such persons as were then present.

      Held, that he erred in so doing.
    That he should have compelled the proponents to produce the witness.
    That when a witness is thus produced the law imposes upou the surrogate the duty of examining such witness as to the execution of the will, whether the contestants he present or not.

      In the Matter of the Estate of Jesse Hoyt (67 How., S7, and Hoyt v. Jaehson, 2 Dem., 443) approved
    That the ruling of the surrogate could not be sustained upon the ground that the widow, being interested in the establishment of the will, was incompetent to . testify, as the contestants, by demanding her examination, waived all objections to her competency as against themselves, and as the infant daughter, who, as well as the widow, took under the will a greater sum than they would receive under the statutes of descents and distributions, could not raise the question that her mother was an incompetent witness on the ground that her interest was hostile to her own.
    Appeal from a decree of the surrogate of Monroe county, admitting to probate the will of one John Baird.,
    The decedent died on the 30th of November, 1883, at the age of sixty-five years, leaving him surviving Isabella McL. Baird, his widow, and three children, being the owner of both real and personal property of the aggregate value of $12,000. O.n the 3d day of April, 1882, the deceased executed an instrument purporting to be his last will and testament, by the terms of which he gave all liis property to his widow, and an infant daughter, Helen A. Baird, making no provision therein for his other children, James C. and ’William Baird. By the terms of the will his widow received a greater interest in his property than she would have done under the statute of distributions if he had died intestate. The sons James an d William resisted the probate of the will, alleging that at the time of its execution the decedent was not of sound mind and memory, and was incompetent to make a will devising his property; that the execution of the instrument, purporting to be his last will and testament, was procured by fraud, circumvention and undue influence, practiced upon him by his wife, Isabella Baird. The surrogate, on admitting the will to probate, found specifically, as a fact, that at the time of the execution of the instrument the testator was of sound and disposing mind and memory, and he did the same as his free and voluntary act, and that he was not under any restraint or undue influence at the time of its execution.
    In matter of form and manner of execution, the will was in full compliance with the statutes. Iiis sons James and William were children of a former marriage, and he intermarried with Isabella, his widow, in May, 1876, by whom he had two children, of which Helen A., named in the will, is the survivor. The widow and Henry J. Hetzel were named as executors, and the will ■was presented for probate upon the petition of the executor Hetzel, in which the widow joined. There wTere two subscribing witnesses only, both of whom were called and sworn. Both of the contestants join in the appeal from the decree admitting the will to probate.

      George A. Benton, for the contestants and appellants.

      William E. Werner, for the proponents and respondents.
   Barker, J. :

The will should have been denied probate for the reason that Isabella McL. Baird, the widow, was not produced and examined as a witness as demanded by the contestants. By section 2618 of the Code of Civil Procedure it is provided that, “ any party who contests the probate of the will may, by a notice filed with the surrogate at any time before the proofs are closed, require the examination of all the subscribing witnesses to a written will, or any other witness whose testimony the surrogate'is satisfied may be material, in which case all such witnesses who are within the State and competent and able to testify must be so examined.” Before the proponents had closed their proofs the contestants filed with the surrogate a written notice requiring- the examination of Isabella McL. Baird, Henry Achiles and William H. Whiting, under and in pursuance of the provisions of the said section. Immediately after the proponents had rested their case the contestants demanded that the persons named be produced as witnesses and examined as required by the said notice. The record states that this application was denied by the surrogate upon the ground that the words of the section, “any other witness,” applied only to such persons as those who were present at the execution of the will; and that it appeared that Achiles and Whiting were not present at that time, and that Isabella Baird was in a bed-room, with the door closed. It was admitted that the notice was duly filed and served. The contestants duly excepted to the ruling.

The surrogate is not required to compel the attendance of any witness other than the subscribing witnesses on tKe demand of the contestants, unless he is satisfied that the testimony of such persons will be material on the issues of fact to be determined by him. The application was denied on the ground of the want of power in the court to make the order, and not because he was satisfied that the testimony of the witnesses was not material on the questions of fact litigated.

In determining whether the ruling was erroneous or not we should regard the case the same as if it had been specifically determined by the surrogate, on proper proof, that the evidence of each of these witnesses was material. The contestants were not called upon by the proponents to produce proof of the materiality of the testimony, and it is manifest that the surrogate made his decision declining to require the production of the witnesses, on the assumption that their evidence was material, or that the contestants were ready to make it appear to his satisfaction that such was the fact. The question is, therefore, fairly presented whether the proponents were required, under the provisions of section 2618, above quoted, to produce before the surrogate the persons named in the notice, and for the reason that one of them was not produced and examined the surrógate should have denied probate to the will. The language of the statute is plain and positive, that “all such witnesses,” that is, all those named in the notice “who are within the State and competent and able to testify must be so examined.”

The ruling, that the statute has no application unless the witnesses named were present at the execution of the will, is adding to the requirements of the statute, which no court has the power to do. If the surrogate is satisfied that the witnesses named and required to be produced and examined can give material evidence, then, as matter of right, the contestants can insist-on their production and examination, before the will can be admitted to probate. In this respect the statute is as imperative as its other provision, requiring that at least two of its subscribing witnesses shall be produced and examined, if living and within the jurisdiction of the court.

The proceedings relating to the probate of a will are in the nature of proceedings in rem. When a will is allowed probate it becomes an instrument affecting the title to property, both real and personal. It has been for a long time the policy of the law, that instruments of this character shall be executed with great formality and in a particular manner, and many arbitrary requirements have been enacted by the legislature to prevent fraud in imposing such instruments upon the heirs and next of kin of deceased persons.

The provisions of the section now under consideration are not novel,' and are, in substance, the mere compilation of previous statutes. By section 10 of chapter 460 of the Laws of 1837, at least two of the subscribing witnesses, if not disabled from age, sickness or infirmity, from attending before the surrogate, were required to be produced and examined. By the eleventh section of the same act, the contestants against the probate could, by filing with the surrogate a request, require all of the subscribing witnesses, if there were more than two, to be produced and examined by the surrogate before the will could be admitted to probate. In 1841, chapter 129, section 11 was amended so as to apply to all witnesses whom any person interested in the proof of the will shall request to be examined, whether such witnesses be subscribing witnesses to the will or not; provided the surrogate before whom the proceedings were pending was satisfied that the testimony of the witnesses so requested to be examined was material.

We are also of the opinion that it is incumbent upon the proponents of the will to produce the witnesses named by the contestants, and when produced, the law imposes upon the surrogate the duty to examine such witnesses relative to the execution of the will, whether the contestants be present or not. It is made the surrogate’s duty, by a statutory requirement, to inquire particularly into all the facts and circumstances,” and not until he himself is “ satisfied of the genuineness of the will and the validity of its execution ” can he admit it to probate. (Code, § 2622.)

Similar views as to the true interpretation which should be put upon the sections of the Code which have been quoted, were expressed by the surrogate of the city and county of New York, whose experience in administering the law relative to the probate of wills is very great, and his opinions on such matters are worthy of the highest consideration and respect. (In the Matter of the Estate of Jesse Hoyt, deceased, 67 How. Pr., 57; S. C., sub. nom. Hoyt v. Jackson, 2 Dem., 443.)

The question is not before us as to the course of procedure to be adopted in the Surrogate’s Court as to the mode and manner of producing to the surrogate proofs as to the materiality of the witnesses whom the contestants may require to be examined. Two of the witnesses mentioned in the notice, Achiles and Whiting, were sworn after the ruling made by the surrogate and examined fully upon the questions of fact in issue, both by the proponents and contestants. It does not appear, however, that Mrs. Baird, the other witness, was personally present before the surrogate, but she was within the jurisdiction of the State and amenable to the process of subpoena. She was one of the proponents of the will for probate, and interested in having it established as the valid will of her late husband, and it is now suggested by the respondents that, therefore, she was not a competent witness.

The contestants, by demanding her examination, waived all objections to her incompetency as against themselves, and the infant, the only other person interested, who declined to produce the witness, is, in no situation, at least- at this time, to present that point in support of the surrogate’s ruling. The widow and her daughter, who, by the terms of the will, take all of the estate of the decedent, and each in a sum greater than she would receive under the statute of descent and distribution, if he had died intestate, are interested in supporting the will, and we think that the daughter, one of the proponents, cannot raise the question that her mother is an incompetent witness, on the ground that her interest is hostile to her own.

On the hearing the contestants offered to prove, and the same was rejected, that the life of Mrs. Baird, before her marriage with her husband, was not virtuous, and the same was rejected. This ruling, we think, was correct, as that question was not involved in the issues.

We have read all the evidence with much attention, with a view ■of forming a judgment of our own upon the questions of fact litigated before the surrogate, but we withhold any expression of our own judgment upon those questions, for the decree of the surrogate should be reversed upon the question of law as indicated. This is the more proper for the reason that much of the evidence, upon which the contestants rely in support of their charge of fraud and undue influence on the part of Mrs. Baird, was given by the contestants themselves, and the wife of James, as to whom the proponents made the objection that they were incompetent under section 829 of the Code of Civil Procedure, which was overruled by the surrogate. We refer to that part of their evidence relative to transactions and communications between themselves, individually, and the deceased. (Greenl’s Ev., §§ 390, 399, 397; Steele v. Ward, 39 Hun, 555 ; Holcomb v. Holcomb, 95 N. Y., 316.)

It will not be of advantage to either party for the court, on this appeal, to pass upon the many other exceptions taken by the contestants, for it is not likely that they will again arise on the rehearing, in the precise manner in which they are presented by this record.

The decree of the surrogate is reversed and the proceedings remitted to the surrogate of Monroe county, with directions to proceed thereon, with the costs of this appeal to the appellants to be paid out of the estate.

Smith, P. J., Haight and Bradley, JJ., concurred.

So ordered.


text:
    In the Matter of the Judicial Settlement of the Accounts of JOHN J. P. READ, as Administrator, etc., of ELIZABETH READ, Deceased.

      Power of a surrogate to compel an administrator to account — when he may pass upon the validity of a release executed to the administrator by the next of kin.

    On May 18, 1875, letters of administration upon the estate of one Elizabeth Read were issued to one John Read, the said John and one E. A; S. Rockwell being the only children and next of kin of the deceased. In July, 1885, the said Rockwell presented a petition to the surrogate praying for a judicial settlement of the accounts of the administrator, which was resisted by the administrator upon the ground that the petitioner, by an instrument in writing, signed and sealed, had released the administrator from all claims and demands in her favor, and from all liability and accountability as such, and that she had no right to or interest in the estate, or to compel him to account.
    The petitioner replied that she had no knowledge or information tha/t she had ever signed a release, and denied the execution of any such paper, and, for a second reply, averred that her signature to the said release was procured by misrepresentation and fraud.

      Upon tlie hearing the administrator produced a release in writing, under seal, executed in the presence of two witnesses, and proved the payment of all debts and funeral expenses. No other evidence being offered the surrogate ordered the administrator to render an account of his proceedings.

      Held, that the order .should be affirmed upon the grounds:

      First. That the surrogate had jurisdiction to order the accounting upon the petition of the petitioner as she was one of the next of kin.

      Second. That the petitioner might demand an accounting for the purpose of ascertaining the condition of the accounts, at the time she executed the release, that it might appear upon the trial of an action brought to determine the validity of the release what the true state of the accounts were.
    As to that the Surrogate’s Court had the power to determine the validity of the release, that being essential to the making of a decree determining who was entitled to the funds in the hands of the administrator.
    Appeal from an order of the surrogate of Erie county requiring John J. P. Read, the administrator of the estate of Elizabeth Read, the decedent, to render an account.
    Letters of administration were issued upon the estate of the deceased on the 18th day of May, 1875, and her only children and next of kin were the said administrator and E. A. S. Rockwell. In July, 1885, the latter presented a petition to the surrogate stating, among other things, that the administrator had never rendered an account of his proceedings, and prayed for a judicial settlement of his accounts, and that the administrator might be cited for that purpose. Proper process was served upon the administrator, and on the return day he appeared and filed an answer in writing, the only objection made to rendering an account was that the petitioner, by an instrument in writing, signed and sealed, released the administrator from all claims and demands in her favor, and from all liability and accountability as such administrator, and the administrator averred that she had no right, title or interest to said estate, and no right whatsoever to require him to render an account of his proceedings as such administrator. To this answer the petitioner made reply that she had no knowledge or information that she ever signed a release, and denied the averment in the action that she had executed a paper of that import; and as a second and further reply that the signature to the said release was procured by misrepresentations and fraud, and was signed by her without knowledge of its contents and without consideration therefor.
    Upon the adjourned day the administrator presented a release in writing and under seal, executed in the presence of two witnesses, containing a recital that Read had been appointed administrator of the goods and credits of the deceased, and that the petitioner and the administrator were the only children, heirs-at-law and next of kin of the said deceased; the clause containing the release was in the following words: “Now, in consideration of the sum of one dollar to me in hand paid by said John J. P. Read, the receipt whereof is hereby acknowledged, I do hereby release and discharge him from all claims and demands which do now, or may hereafter, exist or arise in any manner whatsoever in my favor, or in favor of my heirs, executors, administrators or assigns, and from all liability or accountability for any act done, or to be done by him, as such administrator.”
    The petitioner admitted that the signature to the release was her own genuine signature, and the administrator then proved that all the debts and funeral expenses had been paid. No other fact being proved, or offered to be proved, the surrogate made an order that the administrator render an account of his proceedings on a day named, and that he appear at that time before the said surrogate, and attend from time to time, for the purposes of rendering said account. To this ruling the proper exceptions wTere taken, and from the order the administrator brings this appeal.

      O. O. Cottle, for the administrator, appellant.

      II. J. Swift, for E. A. S. R. Rockwell, petitioner, respondent.
   Barker, J.:

The important legal proposition presented by this appeal is whether the Surrogate’s Court has jurisdiction to try and determine the question of fact relative to the validity of the release. By the provisions of the Code of Civil Procedure, defining the power of the Surrogate’s Court, power is conferred by upon that tribunal, among other things, to direct and control the settlement of the account of administrators and to enforce the payment of debts and legacies, and the powers so conferred are to be exercised in the cases and manner enumerated in sections 2717, 2718, 2719. After the period of eighteen months has elapsed from the granting of administration he may be called upon to make a judicial settlement of his accounts and proceedings by any person interested in the estate or funds which came to his hands in his representative capacity. The course of procedure in a proceeding of this character is marked out in article 2,. title 4, chapter 18 of the Code of Civil Procedure. No question is made but that the court possessed jurisdiction of the subject-matter.

The objection made by the appellant to granting the order requiring the administrator to make an account is based upon the ■admitted fact, that the petitioner executed an instrument releasing ■the administrator from all her interest in the personal estate and ■exempting him from the statutory liability to render an account, .and that the Surrogate’s Court is without jurisdiction to declare the instrument void for the reason set forth by the petitioner. Therefore, .so long as that instrument stands it is conclusive that she has- no ■interest in the estate, and he should not be called upon to account upon her demand.

The jurisdiction of Surrogate’s Court is wholly statutory. The powers which it possessed under the Revised Statutes are discussed .and fully set forth in the opinion of the court in Riggs v. Cragg (89 N. Y., 490), to which reference is made. In this connection read Lambert v. Craft (98 N. Y., 347); Fiester v. Shepard (92 id., 254) may be consulted, where the court gave expression as to the extent of the rule existing before the provisions of the Code, that Surrogates’ Courts had no power to adjudicate on the validity of a debt on the petition of a creditor and legatee when its validity was disputed. As to the power of the court to try the question of the validity of the release, consult Harris v. Ely (25 N. Y., 138), where the court, without deciding the question, expresses the opinion .that the surrogate had power to determine questions of this character. .See, also, the case of Clock v. Chadeagne (10 Hun, 97), where the -court went upon the supposition that upon an accounting, questions of this character might be adjudicated by the surrogate.

After an accounting is had and the amount of the funds subject .to .distribution is determined, then, under the provisions of section 2743, the court can decree to whom the same shall be paid, and upon that hearing, for the purpose of determining that question, ’.the surrogate may determine the validity of the release; the question is of the same character as the one which would arise upon the presentation of a simple receipt should the genuineness of the signature of the next of kin be in question, or whether a voucher, good in form, had not in fact been delivered, or if it was claimed by the administrator that one of the next of kin had sold and assigned all his interest in the estate. If questions of this character cannot be tried in Surrogates’ Courts when an issue is raised on such questions, then it deprives the Surrogate Court of the power to order an administrator or executor to render an account. The jurisdiction conferred by statute is very broad, and the intention was to confer upon that tribunal the power to order distribution among the next of kin of the decedent. All incidental issues necessary to determine how the account should be made and stated and to whom it should be paid, may be investigated and tried by the surrogate.

It was held in the case of Riggs v. Cragg (supra), that the surrogate might determine the validity of the will when the proper parties were before him. That is where the right of a legacy depends upon the question of construction, etc., the surrogate has jurisdiction under the broad ground of the power conferred upon him to investigate that question. (See the cases cited on page 492.) There is no pretense that the administrator here ever rendered an account. The defense of the statute of limitation may be disposed of upon the authority and upon the suggestions contained in Clock v. Chadeagne (10 Hun, 97, supra), that the question was not presented by the answer raised on the hearing before the surrogate. The petitioner was allowed to amend her petition by inserting that she was surety on the administrator’s bond and claimed the right to demand an accounting for that reason as provided in section 2726.

This memorandum is made after an examination of all the authorities, and I have reaehed the conclusion that the case should be disposed of by affirming the order and upon the grounds :

First. That the surrogate has jurisdiction to order the accounting upon the petition of the petitioner, as she was one of the next of kin.

Second. And that she may demand an accounting for the purpose of ascertaining the condition of the accounts at the time she exer cuted the release, and that it may appear upon the trial of the validity of the release what the true state of the accounts were and that the Surrogate’s Court has the power to determine the validity of the release, that being essential to the making of a decree determining who is entitled to the funds in the hands of the administrator.

Ten dollars costs and disbursements allowed the respondent, to be paid by appellant.

Smith, P. J., Haight and Bradley, J.J., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    ELLEN O’DONNELL, Appellant, v. ROBERT McINTYRE, Respondent.

      Summary proceedings to remove persons intruding or squatting upon lands — when one entering by collusion with a tenant is removable as an intruder— Code of Civil Procedure, sec. 2232.
    The plaintiff, who owned an undivided one-third interest in certain premises in the city of Rochester, was in the actual possession of the entire premises by a tenant who had entered under a lease, paying a stipulated rent for the use and occupation thereof. On April 2,1883, the defendant entered into negotiations with the tenant and concluded an arrangement by which the latter agreed to attorn to the defendant, who went into immediate possession without the consent of the plaintiff, but with the consent of the tenant. The defendant claimed title to the premises under a tax deed which was subsequently adjudged to be invalid as against the owner. After this had been decided the plaintiff instituted proceedings for the removal of the defendant from the premises as an intruder, as authorized by section 2232 of the Code of Civil Procedure.

      Held, that he was entitled to do so as the defendant had intruded upon the land, without the permission of the plaintiff, within the meaning of those terms as used in the said section.
    Appeal from a judgment of the Monroe County Court reversing proceedings instituted in the Municipal Court of the city of Rochester by the appellant, to remove Robert McIntyre, the respondent, from the possession of certain premises situated within the city of Rochester as an intruder, under and in pursuance of the provisions of section 2232 of the Code of Civil Procedure.

      Fanning c& Williams, for the appellant.

      D. O. Feeley, for the respondent.
   Barker, J.:

The appellant is the owner in fee of an undivided one-third part of the premises. As such owner she was in the actual possession of the entire parcel by and through her tenant, one J oseph M. Yates, who had entered under a lease paying a stipulated rent for the use and occupation.

On the 2d day of April, 1883, the respondent entered into a negotiation with the said tenant and concluded an arrangement with him by which the latter agreed to attorn to the respondent, who went into the immediate possession of the premises without the consent of the plaintiff, but with the permission of the said tenant.

At this time McIntyre had a tax deed of the premises which he claimed gave him a title to the premises as against the owner. This deed, however, was invalid as against those parties, and it has been so adjudged by this court for the reasons stated in its opinion in an action between these parties and reported in 31 Hun, 615. These are the material facts upon which it is to be determined whether or not these proceedings to remove the respondent as an intruder should be maintained.

The statute provides that a person in the possession of real property may be removed- therefrom, in the manner provided therein, whenever such person, or person to whom he has succeeded, has intruded into, or squatted upon, a parcel of land in a city or incorporated village without the permission of the person entitled to the possession thereof, and the occupancy, thus commenced, has continued without permission from the latter. (Sec. 2232.)

The only question to be determined is, did the respondent gain possession of the premises as an intruder within the meaning of that term as the same is used in said section ? The appellant was in the actual possession of the premises under a legal title, as against the respondent, and the latter acquired his possession without the consent and against the will of the appellant. This makes a complete case, entitling the injured party to relief in a summary manner as marked out by the statute. If the defendant sought to gain possession of the premises by a resort to legal remedies, he would have failed for want of any legal right to the occupancy of the premises for any purpose whatever. His negotiations with the tenant for the purpose of acquiring possession of the premises, with the latter’s consent, was clandestine, vicious and unlawful, which avails him nothing and is condemned by legal precepts and good morals.

Where the relation of landlord and tenant has been once established, the possession of the latter and that of his grantees and assignees is the possession of the landlord, and not hostile or adverse; and this is true even where the grantee has taken a deed of the fee in ignorance of the fact that his grantor stood in the relation of a tenant, the latter denying any such relation. The possession of the tenant, as in subordination to the title of the landlord, continues not only during the running of the term, but is presumed to be such and to remain unchanged until twenty years after the end of the term, notwithstanding any claim by the tenant or his successoi’s of a hostile title. (Whiting v. Edmunds, 94 N. Y., 314; Code of Civ. Pro., § 373.)

It is manifest if the appellant had been advised of the intended action of the respondent, and had been personally present upon the premises when the respondent entered, the latter could not have gained possession without resort to such force as would have amounted to a breach of the peace. The treacherous act of the tenant, induced by the persuasions of the respondent, does not relieve the latter from the charge of being an intruder. The statute is broad enough in its terms and was intended to meet a case like the one now presented.

As we are unable to discover anything to excuse the respondent’s conduct and regard his conduct in gaining possession of the premises as in all respects unlawful, we think the Municipal Court was correct in treating him as an intruder, and that the judgment of the County Court should be reversed, and that in the Municipal Court should be affirmed, with costs of this appeal.

Smith, P. J., Haight and Bradley, JJ"., concurred.

Judgment of the County Court reversed and that of the Municipal Court affirmed.


text:
    JAMES SARGENT, Appellant, v. MARION WARREN, Respondent.
    Costs— traveling fee of a witness — what must he shown to justify an allowance for Raveling from the place of service of the subpama, when such place is not the residence of the witness.

    Upon tlie taxation of the defendant’s costs in this action, after the dismissal of the plaintiff’s complaint, an item of thirty-two dollars which had been paid to one Hawley, a witness, for traveling from the city of New York to Rochester was allowed among the disbursements. The item was allowed upon the affidavit of the defendant’s attorney, who stated that Hawley was a necessary and material witness for the defendant; that at the time at which the term for which the witness was subpoenaed was held he was in the city of New York, and came to Rochester from that place at deponent’s request to be a witness on the trial for the defendant, and that he had paid him thirty-two dollars as his traveling fee. The witness was a single man doing business in the city of Rochester, which was his permanent place of residence. When requested by the defendant’s attorney to attend the term of court referred to he was temporarily in the city of New York.

      Held, that the item should have been disallowed as it was not made to appear that the witness returned from New York to Rochester for the sole purpose of attending the court as a witness for the defendant, and that he actually returned to the city of New York to complete his business in New York after his attendance as a witness at Rochester.

      Pfandler Barm Exdracting Banging Apparatus Company v. Pfandler (89 Hun, 191) distinguished.
    Appeal from art order of the Monroe Special Term, denying plaintiff’s motion for retaxation of the defendant’s costs.
    At the December Special Term, in 18S5, the plaintiff’s complaint was dismissed, without trial, with costs. The case was on the calendar for the February term of the same year. Among the items of disbursements allowed was thirty-two dollars, travel fee of the witness Hawley from the city of New York to the city of Rochester, for attendance at the February term. This item was allowed upon the affidavit of the defendant’s attorney, who stated that Hawley was a necessary and material witness for the defendant; that at the February term, in 1885, the witness was in New York, and came to Rochester from that place at his special request to be a witness on the trial for the defendant, and that he paid him thirty-two dollars as his traveling fees. In another affidavit it is stated that the place from •which the said witness was brought was correctly stated and set forth in the items of disbursements.

      J. da Q. Van Voorhis, for the appellant.

      James B. Perlcms, for the respondent.
   Barker, J.:

The witness Hawley was a single man doing business in the city of Rochester, which was his permanent place of residence. When requested by the defendant’s attorney to attend the term of court in February, he was temporarily in the city of New York. Upon the affidavits presented to the taxing officer the item of travel fee from New York to Rochester should have been rejected. It is not made to appear that the witness returned from New York to’his home in Rochester for the sole purpose of attending the court as a witness for the defendant, and that he actually returned to the city of New York to complete the business which detained him there when requested to leave that place and come back to Rochester as a witness. If it had been made to appear that the witness actually and necessarily made the journey from New York, and returned to that place, to comply with the defendant’s request, then the item would have been taxable. The rule is to allow a travel fee when paid to a witness in such cases, unless it appear that the party for whom he attended at-the term of court was in fault and guilty of negligence in omitting to subpoena the witness before he left his permanent home for a temporary absence. When a witness is subpoenaed at a place where he is found during a temporary absence from his permanent place of residence, the necessity of subpoenaing him away from his home must be clearly shown to entitle the party for an allowance of the increased travel fee. (Mead v. Mallory, 27 How. Pr., 32.) The only facts established by the defendant’s affidavit are, that when he requested the witness to attend the court he was in the city of New York, and he came to Rochester and was paid the travel fee between the two cities. It does not appear that he returned to New York, or that the journey was any inconvenience to him.

We are cited to our decision, made in January, 1886, in the case of the Pfandler Barm Bunging Apparatus Company v. Sargent (39 Ilun, 191) as an authority for allowing this travel fee. But that case is not at all in point, as the facts are essentially different. There it was established as a fact that the witness, who lived in Rochester, was temporarily in the city of New Yorlc on business, and that he refused to attend the term of court in Rochester unless he was paid the statutory travel fee, and the plaintiff thereupon, to secure his attendance, complied with the demand of the witness and paid him the fee. The witness’s own affidavit in that case was made and read, in which he positively stated that he was obliged to travel from the city of New York to the city of Rochester, for the purpose of attending the trial, and after it was over he returned to the city of New York

It is incumbent upon parties who subpoena witnesses, while away from their homes, and pay an increased travel fee, to make it appear that the witness was necessarily compelled to travel an increased distance, and had a legal right to demand an increased fee. Otherwise it would be easy to practice frauds and imposition upon tiie adverse party.

The other item of travel fee allowed for the attendance of the same witness from the State line to Rochester, on his journey home from Chicago, should have been rejected for the same reasons.

The order appealed from should be reversed and a retaxation ordered, with permission to either party to read new affidavits on the retaxation, with costs and disbursements of this appeal to the appellant.

Smith, P. J., Haight and Bradley, JJ., concurred.

Order reversed and retaxation ordered, with ten dollars costs and disbursements.


author: Smith, P. J.;

text:
    In the Matter of Proving the Will of ANN BUCKLEY, Deceased.

      Jurisdiction of Surrogate’s Courts over applications for prolate of wills — exclusive, when the decedent was a resident of the county at the time of his death — duty of the surrogate of one county to decline to entertain an application for the prolate of an alleged will while an earlier application for proof of a will of the decedent is pending in another county. ’
    Appeal by James O’Connor from an order of tbe surrogate of Monroe county.
    On the 24th of September, 1885, Ann Buckley died at Farming-ton, in the county of Ontario, leaving two instruments, one dated the 19th of August, 1885, and the other dated the 12th of September, 1885, the former of which is alleged by the appellant, and the latter of which is alleged by the respondent, to be the last will of said deceased. On the 1st day of October, 1885, the respondent, who was named in the latter instrument as the executrix thereof, presented her petition to the surrogate of the county of Ontario, duly verified, alleging that the said deceased was, at the time of her death, a resident of the county of Ontario, and that she died possessed of personal property in that county, and praying for probate and citation. Thereupon the surrogate of that county issued a citation directed to the heirs-at-law and next of kin of the decedent, returnable on the 24th of November, 1S85, which, on the second day of October, was served on three of the persons cited.
    On the fifth day of October the appellant herein, who is named in the earlier instrument as the executor thereof, filed his petition for the probate thereof, duly verified, in the Surrogate’s Court of the county of Monroe, alleging that the decedent, at the time of her death, was a resident of the latter county and that all her property was situated at that time in the city of Boehester. Thereupon the surrogate of Monroe county issued a citation returnable on the nineteenth of November, which was served on the day it was issued on one or more of the heirs-at-law of the deceased. Upon the return day of that citation the respondent, Mrs. O’Connell,who was named as a legatee in the earlier instrument, appeared and filed objections to the probate of said instrument, alleging, first, that the deceased, at the time of her death, was a resident of the county of Ontario and not of Monroe; and, secondly, the making of the later instrument, and the instituting of proceedings for the probate of the same in the Surrogate’s Court of Ontario, as above stated.
    The surrogate of Monroe thereupon made an order which, after reciting the coming on of the matter to be heard upon the petition of the appellant, the objections made by the respondent, and that it appeared from the proofs before liim that the citation from the Surrogate’s Court of Ontario was duly issued and served before the issuing of the citation from the Surrogate’s Court of Monroe, adjudged that the Surrogate’s Court of Ontario thereby acquired exclusive jurisdiction to try the preliminary question of the residence of the decedent. The said order further stated that the court would dismiss the proceedings before it, were it not for the additional expense which would be entailed upon the estate in case the surrogate of Ontario should decide that the residence of the deceased was, at the. time of her death, in the county of Monroe, and it was, therefore, further ordered that the case be adjourned until the 29th of December, 1885, to enable the surrogate of Ontario to determine the question of residence; the order also provided that in case the surrogate of Ontario should decide that the decedent was, at the time of her death, a resident of the county of Ontario, then that said proceeding be dismissed. From that order this appeal is taken.
    The court at General Term said : “ The counsel for the respondent contends that the order is merely an order of adjournment, and, therefore, is not appealable. It is more than that. It dismisses the proceeding in a certain contingency therein specified, and to that extent may be said to affect a substantial right. Whether, however, an appeal will lie before the contingency has happened, and the order has had the effect to work a dismissal, is a question of some doubt, which it is unnecessary to consider in the view we take of the merits of the appeal.

      “ Treating tlie order as a dismissal of the proceeding on the ground that the surrogate of Ontario had acquired prior exclusive jurisdiction to try the question of residence, we think it is clearly right. Section 2475 of the Code of Civil Procedure provides that jurisdiction, once duly exercised over any matter by a Surrogate’s Court, excludes the subsequent exercise of jurisdiction by another Surrogate’s Court, over the same matter, and all its incidents, except as otherwise specially prescribed by law. - That provision controls here. The Surrogate’s Court of each county has jurisdiction, exclusive of every other Surrogate’s Court, to take the proof of a will, where the decedent was, at the time of his death, a resident of that county, whether his deatli happened there or elsewhere. (Code, § 2476.) The petition that was presented to the Surrogate’s Court of Ontario, followed by the service of its citation upon one or more of the parties to whom it was directed, gave that court jurisdiction to try the question of residence, of which jurisdiction that court could not be deprived by subsequent proceedings in the Surrogate’s Court of another county. (Bumstead v. Bead, 31 Barb., 661 ; People ex rel. Weatherhead v. Waldron, 52 How. Pr., 221.) The case of People ex rel. James v. Surrogate of Putnam County (21 Weekly Dig., 498), cited by the appellant’s counsel, does not sustain his position, and accords with the cases above cited. The order appealed from was judiciously framed to avoid an unseemly conflict of jurisdiction, and to save the estate from needless expense.
    “ It should be affirmed, with ten dollars costs and disbursements to be paid by the appellant.”

      D. C. Feely, for James O’Connor, proponent and appellant.

      John Colmey, for Mary A. O’Connell, contestant and respondent.
   Opinion by

Smith, P. J.;

Barker, Haight and Bradley, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.