author: Van Brunt, P. J.

text:
    Wilford Linsly, as Executor, etc., Resp’t, v. Stephen G. Bogart, as Trustee, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 17, 1895.)

    1. Will — Construction.
    A life beneficiary of the interest, dividends, increase, profits and income of a fund is not entitled to the premiums accruing on the securities in which the fund is invested.

      2. Trustee — Compensation.
    A trustee does not forfeit his right to commissions for receiving the principal of the trust estate by making an application for leave to resign, where he does not obtain such leave but dies during the pendency of the action.
    3. Same.
    Where trustees have not in fact converted into money securities forming part of the principal of the trust estate, nor delivered the sum as cash to the beneficiaries, they cannot be allowed to credit themselves with, or receive commissions for, receiving such part of the principal of the trust estate.
    Appeal from a judgment entered in favor of plaintiff

      Ira D. Warren, for app’lt; W. V. Rowe, for resp’t.
   Van Brunt, P. J.

We might very well rest our decision in affirming the judgment appealed from upon the exceedingly satisfactory opinion written by the learned referee upon the decision of the question involved before him. It may be well, however, to-revert to one or two points in addition to those which have been considered by the referee. If the tenant for life, as matter of right, is entitled, as is claimed by the appellant, to the increase resulting from the rise in price of the securities in which the trust fund was invested, then it would seem to be right existing in the life tenant, at any time when such premises existed, to compel a sale of the security in which such trust fund was invested, in order that she might realize such increase. It is apparent that no such right exists in the life tenant. Such a power would enable' the life tenant to compel the trustees to speculate in securities, and change investment at her pleasure, and thus deprive the trustees of the ordinary powers which are supposed to be invested in them. It. has been well observed by the referee in his opinion that, even if, by the terms of the will, the life tenant was entitled to the increase realized on the principal of the fund, it could not accrue to her or her estate until the expiration of her life tenancy, as before that time it would be manifestly impossible to ascertain the amount of such increase, or even the existence of any. The present transactions may show a gain, but the next investment may be unfortunate, and involve a loss. It is manifest that it was not the intention of the testator that all gains, when realized, should belong immediately to the life tenant, and that all losses should be charged to the corpus of the fund. It is apparent that the testator intended the provisions of the will under consideration for the benefit of á. tenant for life, to be enjoyed during such life, and not for the benefit of the personal representatives of a person who has been a tenant, but whose term must be ended by death, before the question of whether there is an increase or not can be determined. We think, therefore, that the judgment appealed from should be affirmed, with costs.

All concur.

The opinion of William H. Willis, Esq., to whom the cause was referred, is as follows :

This action is for an accounting of the plaintiff, Wilford Linsly, as executor, etc., of John H. Linsly, deceased, who at the time of his death was .trustee of a certain trust for the benefit of Ann Augusta Linsly under the last will and testament of Richard J„ Morgan, deceased, and also for an accounting of the defendant Stephen G. Bogart, as sole surviving trustee of said trust Said Richard J. Morgan, in and by his said will, gave and bequeathed to his executors one equal third part of his residuary estate in trust for the benefit of bis mother, said Ann Augusta Linsly, during her life, with remainder over to certain other parties. The following is the clause of the will creating such trust: “Eighth. The remaining one-third I give, devise, and bequeath to my executors in trust during the lifetime of my mother, now Ann Augusta Linsly, to receive the interest, dividends, increase, profits, and income of the said one-third, and to pay over the said interest, dividends, increase, profits, and income to my said mother, or to apply the same to her sole and separate use during the period of her natural life ; and, after her death, to distribute the said one-third to and among my issue surviving me, equally, per stirpes and not per capita, for their own use, respective!}', absolutely and forever.” On the 29th day of April, 1886, under and in compliance with a. judgment of this court made in an action brought by said Ann Augusta Linsly against the other parties in interest, one equal third part of said residuary estate was transferred by the said executors to themselves as trustees of said trust.

On the 7th day of February, 1887, this court, upon the petition of said Ann Augusta Linsly, the life tenant, and of the said trustees, and upon due notice to all parties in interest, made an order at the foot of said judgment in the following words:

“At a Special Term of the Supreme Court of the State of Mew
York, Held at the County Court House, in the City of Mew
York, on the 7 th Day of February, 1887.
Present: Hon. George P. Andrew, Justice.
“Ann Augusta Linsly, Plaintiff, against Stephen G. Bogart and John H. Linsly, etc., and others, Defendants.
“Leave having been granted to any of the parties to this action by judgment herein on April 20, 1886, to apply to this court at any time, and from time to time, for its further directions at the foot of said judgment; and the plaintiff having united with the defendants Stephen G. Bogart and John H. Linsly, as trustees of the fund and trust mentioned in the sixth clause of said judgment, in a petition duly made to this court for an order at the foot of said judgment instructing the said trustees as to their duty in the matter of retaining, as a portion of their trust fund, certain bonds purchased and held by their testator in his lifetime, as specified in said petition ; and it having been duly referred to George Putnam Smith, Esq., by an order made in this action on the 13th day of July, 1886, to take proof as to the facts and circumstances alleged in the said petition, verified June 22, 1886, and to take the evidence produced by either of the parties to this action with reference to such facts and circumstances, and with all convenient speed to report such testimony to this court, with his opinion thereon: Mow, upon the coming in of the report of the said George-
Putnam Smith, Esq., dated January 8, 1887, and upon reading and filing’the same, and the evidence of Stephen Gf. Bogart, Edwin S. Larcher, and Thomas Denny, produced and taken on said reference, and upon all the pleadings and proceedings in this action, and at the foot of the judgment herein entered upon the 29th day of April, 1886, as amended on the 1st day of May, 1886, upon proof of due and timely service of notice of this motion for the confirmation of said, report and the entry of this order upon . Charles H. Woodbury, Esq., of counsel for Jennie Jameson Morgan and for Charles Rice, guardian ad litem of the infant defendants, on motion of Bangs & Stetson, attorneys for the said petitioners, after hearing Francis Lynde Stetson, Esq., of counsel, in support thereof, and the said Charles H. Woodbury, Esq., appearing and submitting the rights of the said infant defendants to the protection of this court, it is ordered:
“ First. That the said report of George Putnam Smith, Esq., be and the same is hereby, in all things confirmed.
“ Second. That Stephen G. Bogert and John H. Linsly, be, and they are hereby authorized to retain as trustees for Ahn Augusta Linsly, under the eighth clause of the last will and testament of Richard J. Morgan, deceased, and for the benefit and as a part of the trust fund by them received and now held pursuant to the sixth clause of the judgment heretofore entered herein as aforesaid, the following specific securities, now remaining unsold in their possession, to wit: $15,000 first mort. 7 per cent, bonds, Gulf, Colorado and Santa Fe Railroad Company; $9,000 firsh mort. 6 per cent, bonds, Chicago, Milwaukee and St. Paul (South Minn. Div.) R. R. Co.; $9,000 first mort. 6 per cent bonds, Northern Pacific R. R. Co.; $6,000 first mort. 6 per cent, bonds, Central Pacific R. R. Co.; $2,000 first mort. 6 per cent, bonds, Western Pacific R. R. Co.; $6,000 St. Paul, Minn. & Manitoba R. R. 6 per cent, consolidated bonds; $15,000 Long Island R. R. 5 per cent, consolidated bonds; $30,000 Morgan’s Louisiana & Texas R. R. and S. S. Co. 6 per cent, first mort. bonds, extension ; $93,-000 Morgan’s Louisiana and Texas R. R. and S. S. Co. 7 per cent, first mortgage bonds. For each and every bond retained by them pursuant to the authority herein granted and conferred, the said trustees are hereby directed to create and maintain a sinking fund in manner as follows, that is to say :
“ Out of the interest by said trustees received upon or on account of any bond hereinabove designated, they shall, as thesame is received, deposit as much as is hereinafter indicated with some trust company approved by law, or rule of this court as a proper custodian of trust funds in the city of New York ; and from time to time, in their discretion, they may invest in their names as trustees any funds so deposited and all accumulations of interest thereon in any of the methods recognized and approved under the practice of this court for the investment of trust funds. Upon the sale by them of any of said bonds, the whole amount received by them of the principal of such bond, or for interest accruing subsequent to the death of the said Ann Auffusta Linsly, shall be by them held invested and accounted for as part of the principal of the trust estate for the benefit of the reversioners, and, in addition thereto, such part, if any, of the interest upon such bond theretofore by them received and deposited as a reserve or sinking fund, as aforesaid, as may be necessary to make the proceeds of such bond equal to the value thereof, as stated in the sixth paragraph of the judgment decree in this action of April 29th, 1886 ; and, except as needed for said last-mentioned purposes, all of such reserved interest in respect of any bond so sold shall upon such sale be by them paid and delivered to the said Ann Augusta Linsly or her personal representatives as a part of ihe income of such trust estate during the lifetime of the said Ann Augusta Linsly. The amount to be so retained as a reserve or sinking fund as aforesaid shall on account of each of the said several bonds be respectively as follows, namely: Two-sevenths of the interest received upon every seven per cent, mortgage bond of Morgan’s Louisinaa and Texas Railroad and Steamship Company; two-sixths of the interest received upon every six per cent, mortgage bond of Morgan’s Louisiana and Texas Railroad and Steamship Company, of the Chicago, Milwaukee and St. Paul Railway "Company, of the Northern Pacific Railroad Company, of the Central Pacific Railroad Company, of the Western Pacific Railroad Company, and of the St. Paul, Minneapolis and Manitoba Railroad Company; one fifth of the interest received on each five per cent, bond of the Long Island Railroad Company, together with all interest received upon such reserve or sinking fund. And the said trustees shall not be held to account for any loss which may result to the principal of said securities, or any of them, as long as they are held in the exercise of the authority conferred by this order and pursuant to its terms. Nothing herein contained shall be construed as an interference with or a limitation of the right of the said trustees at any time to sell any one or all of said securities in the exercise of their sound discretion for a reinvestment of the proceeds of such sale or sales in accordance with the practice of this court and the laws of the state of New York.” Certain addtional assets of said estate having subsequently come into the possession of said executors, this court, on the 23d day of December, 1887, upon the petition of said Ann Augusta Linsly, made at the foot of said judgment of the 29th day of April, 1886, and upon notice to all parties in interest, made a further order, which contains the following words :
“ Leave having been granted to any of the parties to this action by the judgment entered herein on April 29, 1885, as amended May 1, 1886, to apply to this court at any time and from time to time for its further directions at the foot of said judgment; and the plaintiff having duly applied, pursuant thereto, by her petition verified October 4, 1887, for an order directing the defendants Bogert and Linsly, as executors of the last will and testament of Richard J. Morgan, deceased, to give an account of their proceedings as such executors, and of the assets and income of their testator’s estate which have come into their hands subsequent to the 30th day of January, 1886, and praying also that the portian of said assets and income devoted to the use of the plaintiff" by the will of their testator to be set apart, and that the trustees, of the trust fund for the benefit of the plaintiff be instructed as to-their duty in the matter of retaining for the benefit of the said fund such share or portion of the bonds of Morgan’s Louisiana and Texas Railroad and Steamship Company stated in said petition to have been purchased and held by the said Richard J. Morgan in his lifetime, and to have come to the possession of the said executors subsequent to January 30, 1886, as should be ascertained and adjudged to form a part of the said trust fund, and for other relief; and it having been duly referred to George- Putnom Smith, Esq., counselor at law, by an order duly made and entered herein on the 14th day of November, 1887, to take proof of the matters and circumstances alleged in said petition, and to take and state the accounts of the said Stephen G. Bogert and John H. Linsley. as executors, and to hear, try, and determine any questions which might arise respecting the settlement of said accounts, the value of the assets in the hands of the said executors, the amount of their lawful commissions, and the manner in which the estate of the testator may be divided, and to report to this-court with all convenient speed ; now, upon the report and opinion of the said George Putnam Smith, Esq., referee, dated December 15, 1887, and upon the testimony of Stephen G. Bogert and John H. Linsly taken, subscribed, and sworn to before said referee, and the proof of due notice of motion to confirm the same and for judgment as herein provided upon Charles H. Woodbury, Esq., attorney for Jennie Jameson Mandeville (late Morgan), upon Bangs & Stetson, attorneys for the executors and trustees, upon T. G. Cronin, Esq., attorney for Charles Rice, Esq., guardian ad ¡item for the infant defendants Jennie R. Morgan, Mary M. Morgan, and diaries Morgan, and also upon said Charles Rice, guardian ad litem, in person, and upon all the pleadings and proceedings heretofore had herein, including the judgment dated and entered in this action on April 28, 1886, as amended as aforesaid, and the proceedings upon -which the said judgment was made,, and also upon order of this court dated February 7, 1887, and filed on the 8th day of February, 1887, and the proceedings upon which the'same was made, and upon motion of Mr. Van Sintieren attorney for the plaintiff, Mr. Stetson, on behalf of said executors, and Mr. Woodbury,' on behalf of said Jennie Jameson Mandeville(late Morgan), appearing, but not opposing, and Mr. Cronin, attorney for Charles Rice, guardian ad, litem, appearing and submitting the rights of the infant defendants to the protection of this-court, at the foot of the judgment entered in this action as aforesaid on April 29, 1886, as amended on May 1, 1886, it is ordered, adjudged, and decreed as follows: * * *
“ (8) That the defendants Stephen J. Bogert and John H. Linsly do forthwith pay, transfer, and deliver to themselves as trustees under the last will and testament of Richard J. Morgan, deceased, for the benefit of the plaintiff, Ann Augusta Linsly, to-be held by the said Bogert and Linsy, as trustees for the plaintiff, upon and pursuant to the terms of the eighth clause of said will, the sum of one thousand two hundred and ninety-five and thirty-one hundredth dollars ($1,295.80) in cash from the moneys in the hands of said executors belonging to the principal of the estate ; also the sum of nine thousand one hundred and thirty-five and seventy-two one hundredth dollars ($9,135.72) in cash from moneys in the hands of said executors belonging to the income of said estate (the said last-mentioned sum to be thereupon forthwith paid to the said Ann Augusta Linsley by the said Stephen Gr. Bogert and John H. Linsly, as trustees for her, as aforesaid), — making in the aggregate the sum of ten thousand four hundred and thirty-one and twenty-hundredths ($10,431.20); and also one hundred and seventeen (117) of the bonds of Morgan’s Louisiana and Texas Railroad and Steamship Company now held by said Bogert and Linsly as executors as aforesaid, every such bond to carry all coupons maturing after October 31, 1887 ; and, upon the entry of this decree, the said Stephen Gr. Bogert and John H. Linsley shall be deemed and determined to have received and be in possession as trustees, under the eighth clause of said will, of one-third part of the principal of the estate of Richard J. Morgan, deceased, to be held by them in trust as directed in and by the eighth clause of said will; and from and after the entry of this judgment decree, their liability and the liability of either of them as executors in respect thereto shall cease and determine.
“It is further ordered, adjudged, and decreed that Stephen G. Bogert and John H. Linsly be, and they are hereby, authorized to retain as trustees for Ann Augusta Linsly, under the eighth clause of the last will and testament of Richard Morgan, deceased, and as a part of the trust fund for her benefit, the whole or any part of the one hundred and seventeen bonds of the Morgan’s Louisiana and Texas Railroad and Steamship Company, which, as executors as aforesaid, they are herein directed to deliver to themselves as trustees for the said Ann Augusta Linsley; and for each bond retained by them pursuant to the authority herein granted and conferred they are hereby directed to create and maintain a sinking fund in manner as follows, that is to say: Out of the interest by said trustees to be received after the entry of this judgment or decree upon or on account of each of such one hundred and seventeen bonds of the Morgan’s Louisiana and Texas Railroad and Steamship Company, the said Bogert and Linsly shall, as the same is received, deposit so much thereof as is hereby indicated with some trust company approved by law or rule or order of this court, as a proper custodian of trust funds in the city of New York; and from time to time, in their discretion, they may invest in their names as trustees any funds so deposited and all accumulations of interest thereon in any of the methods recognized and approved under the practice of this court for the investment of trust funds. Upon the sale by them of any such bond, the whole amount received by them for the principal of said bond or for interest accruing subsequent to the death of Ann Augusta Linsly shall be by them held, invested, and accounted for as a part of the principal of the trust estate for the benefit of the reversioners; and, in addition thereto, such• part, if any, of the interest upon such bond, theretofore received by then and deposited as a reserve or sinking fund as aforesaid, as may be necessary to make the proceeds of such bond equal to the value thereof, as stated in the aforesaid report of George Putnam Smith, dated December 15, 1887, to wit, the sum of twelve hundred dollars ($1,200), and except as needed for said last-mentioned purpose, all of such reserved interest in tespect to any such bond so sold shall upon such sale be by them paid and delivered to the said Ann Augusta Linsly or her personal representatives as part of the income of such trust estate during the lifetime of the said Ann Augusta Linsly. The amount to be so retained as a reserve or sinking fund as aforesaid shall on account of each of said one hundred and seventeen bonds of Morgan’s Louisiana and Texas Railroad and Steamship Company be two-sevenths of the interest received upon each such bond ; the indicated sinking fund on account of such bond so held to be maintained by said trustees from and after the first receipt of interest after the entry of this judgment decree, and for as long as they shall continue to retain such bonds. But nothing herein contained shall be construed as an interference with or a limitation of the right of the said trustees at any time to sell any one or all of said bonds in the exercise of their sound discretion for a reinvestment of the proceeds of such sale or sales in accordance with the practice of this court and the laws of the state of ISTew York. * * *
i-It is further ordered, adjudged, and decreed that the order made herein at the foot of the judgment, dated the 29th day of April, 1886, as amended May 1, 1886, which said order is dated February 7, 1887, and was filed February 8, 1887, be, and the same hereby is, amended by striking out from the tenth line on the fourth page of said order the words 1 sixth paragraph of,’ and inserting in lieu thereof the words ‘ tenth finding of the report of John Clinton Gray, referee, dated April 22, 1886, as confirmed by’; and the clerk is herewith directed to correct the said order on file in accordance herewith.”

Underand in pursuance of these orders, the trustees continued to hold the bonds in question as part of "the trust estate, and to withhold from the life tenant the prescribed portion of the income therefrom for the sinking fund. This sinking fund now amounts to the sum of $42.969.83. Recently these bonds, with certain other securities belonging to said trust estate, have been sold, realizing altogether the sum of $36.427.68 in excess of the value at which they were taken into the trust The life tenant now asks that she receive the amount of said sinking fund, and it is not disputed that she is entitled thereto. As all the securities in question have been sold at an advance, there can, of course, be no further need of a sinking fund to protect against loss. The amount was deducted and withheld from the incometo which the life tenant was entitled, and should now be paid over to her.

The life tenant also claims that she .is entitled to the profit of $36,427.68, so received on the sale of said securities as “ profits’’ or increase ” of the trust estate payable to her by the terms of the will. We have seen by the will she is given “ the interest, dividends, increase, profits, and income" of the fund, and stress is laid by her upon the use óf the words “ increase ” and “ profits ” as supporting her contention. It is clear that she has no right to the sum in questions either as “interest," “dividends,” or “income.” In the American and English Encyclopedia of Law the general rule is stated to be that “ an appreciation in value of the property bequeathed constitutes capital, and goes to the remainder-man.” In Abbott’s Hew York Digest (volume 10, p. 770) we find the following language upon this subject: “ The current of authority is that as to the relative rights of life tenant and remainder-man the courts will treat anything in the nature of premium or an appreciation in value of the capital of a trust fund as capital, and anything that is interest, income, or proceeds, no matter how extraordinary or unusual it may be, as belonging to the life-tenant.” See, also, 2 Perry, Trusts, §§ 544, 545; Scovel v Roosevelt, 5 Redf. Sur. 121; Cragg v. Riggs, id. 82 ; Clarkson v. Clarkson, 18 Barb. 646.

It is conceded, indeed, by the life tenant, that in the absence of the words “ increase ” or “ profits ” her position would be untenable ; and the court of appeals has so held in Re Gerry, 103 N. Y. 445; 3 St. Rep. 688. In that case the will of Gr. gave to bis executors the sum of $70,000, in trust to invest the same in certain specified securities, to'pay the annual interest, income, and dividends thereof to L during her life, and upon her death to divide " “ the principal or capital sum aforesaid ” among certain remainder-men. With the consent of all parties interested, a portion of the fund was invested in securities other than those named, but all drawing a fixed rate of interest, payable annually. A sale of the securities after the death of the life tenant resulted in a surplus over the amount of the original investment. Upon a settlement of the accounts of the trustees, it was held that the surplus was an accretion of the principal of the fund, and the remainder-men were entitled thereto. It remains, therefore, to consider what meaning or value is to be given to the words “increase" and “profits,” upon which this life tenant relies. It is evident that these two words as used by this testator must be treated as entirely synonymous. Ho intelligible distinction between them in such a case seems ever to have been made by the courts, and presumably none can be made. It is difficult to conceive of an increase during any given time without a profit within the same period, and equally difficult to conceive of a profit without" an increase under like circumstances. To attempt to discriminate would involve a discussion too abstruse .and metaphysical for a court of law;

In regard to the precise force or weight of the words in question as found in this will there have been but comparatively'few adjudications. In Re Clark, 62 Hun, 275 ; 42 St; Rep. 300, a testator had given his wTife “the income of all my other .estate, both real and personal,” and also “the profits of all my other estate, both real and personal.” He also gave to his wife “ the income and profits ” of a separate fund. The general term of this court, in its opinion, makes use of the following language: “This use of the words ‘income and profits’ is only due to the lawyer-like fondness for using several words where one is sufficient. If the executors had not sold the real estate, and if the real estate had increased in value during the widow’s life, she would not have been entitled to the increase. So with personal property. This question is carefully discussed and fully settled in Re Gerry. We think that the use of the word ‘profits’ in these items of the will has no additional meaning to the words construed in that case.” In the case of Cross v. Trust Co., 75 Hun, 533; 57 St. Rep. 656, the court, in considering the meaning of the words “rents, income, issues, and profits” in connection with the claim of a life tenant to a large sum received by way of premium upon a sale of securities, said: “The fund in question represents the increase in value of the securities, and is therefore not profit in the ordinary acceptation of that term. It is an accretion or increase from natural causes. Profit is acquisition of gain above expenditures arising from some transaction or operation. Under this will there was to be no trafile or operations, but only an investment of the fund.” In Hooper v. Rossiter, 1 McClel. 527, where a life tenant was given “the interest, dividends, profits, and proceeds” of certain bank stock, and where a claim was made by the life tenant to stock dividends as representing dividehds or profits, we find the following words in the decision of the court: “Whether . thé testator makes use of the expression ‘dividends’ or ‘dividends and profits’ or ‘dividends, interest, and profits.’ or, as in this case, ‘interest, dividends, profits, and proceeds,’ I look upon all of them to come to the same thing, and that this is too nice a"circumstance to found any distinction on. That disposes of the claim of the plaintiffs as tenants for life.” In the case or Duclos v. Benner, the will contains a direction to the executors in the following words: “To set apart or invest the sum of $30,000, or one-third of the appraised value of my personal estate, as my said wife may elect in writing, and pay over the income, interest, profits, and earnings therefrom to my said wife, half yearly as long as she .shall live.” The executors, having invested the sum of $40,000 in Untied government bonds, realized a considerable profit thereon, and the life tenant, on the theory that she had elected that $30,000 of the sum so invested should constitute the trust fund so provided for her benefit, claimed that by the terms of the will she was entitled to the profit made thereon. The opinion of the court at special term was directly in her favor upon this point; but, for other reasons, .the decision and judgment subsequently rendered were wholly adverse to her claim. On appeal to the general term, the judgment below was affirmed, with a modification in respect to the distribution of the profit in question among certain other parties. This court, in its opinion, discusses at length the meaning of the word ‘profits,' holding substantially that as used in the will in question it means nothing more that income. 62 Hun, 428 ; 42 St. Rep. 929. On further appeal to the court of appeals, that tribunal reversed the judgment of the general term, and affirmed that of the special term. The reasons for such reversal, however, had no relation to the construction so placed by the general term upon the word “profits”; and the court expressly refused to consider that point, saying that it was unnecessary under the circumstances. 136 N. Y. 560 ; 49 St. Rep. 690. The decision of the general term in this case, therefore, although reversed upon other grounds, still remains as an expression of the unanimous opinion of the members of that body upon the very point now in dispute, and is entitled to great weight.

In the creation of life estates or trusts in real property, it has always been usual to use the words “rents,” “issues,” and “profits” as synonymous with “income.” Why should a different rule obtain in relation to personalty? The principle is well established that in construing a will the intention of the testator should be ascertained by a consideration of its provisions, and, if possible, carried into effect. In re Gerry, supra. There is certainly nothing in the will in question to indicate that the testator wished the trustees to deal in securities for the benefit of the life tenant. Such an idea probably never even occurred to him. The words ■“increase” and “profits” were doubtless added to “interest,” “dividends,” and “income” in the preparation of the instrument through the habit of redundant expression peculiar to the legal profession, and without intention or thought on the part of lawyer or client of expressing more than is meant by the word “income.” If the position of the life tenant in this matter be correct, then, whenever the trustees realize an advance in the securities in which the fund is invested, such advance will be immediately payable to her as “profits”; while, in the event of a decline, the loss will fall upon the estate. By a series of such transactions, the entire fund might be dissipated, — a result which the testator could hardly have contemplated. Moreover, the life tenant is still living, and it is apparent that, even if by the terms of the will she were entitled to the net increase realized on the principal of the fund, it could not accrue to her or her estate until the expiration of her life tenancy, as before that time it would be manifestly impossible to ascertain the amount of such increase or even the existence of any. The present transactions, it is true, show a gain, but the next investments may be unfortunate, and involve a loss. To pay all gains as realized immediately to the life tenant, and to •charge all losses to the corpus of the fund, would certainly be a novel process, to say the least. Again, an examination of the orders of the 7th day of February, 1887, and the 23d day of December, 1887, hereinabove mentioned, shows that with respect to the securities specified and included therein, respectively, they áre an absolute estoppel and bar to the claim of this life tenant. It appears by the petitions of the life tenant herself upon which the orders were granted that the latter were made for the express purpose of enabling her to obtain a larger income. For that special purpose the trustees were permitted to hold the securities in question, which were not such as are authorized by law for investments of trust funds. To provide against possible loss by depreciation, a sinking fund was established from the income otherwise payable to the life tenant; and it was further provided that, “upon the sale by them (the trustees) of any of said bonds, the whole amount received of the principal of such bonds or for interest accruing subsequent to the death of the said Ann Augusta Lin sly shall be by them hel'd invested and accounted for as part of the principal of the trust estate for the benefit of the reversioners.” At the end of each of the orders the following additional words appear: “Nothing herein contained shall be construed.as an interference with or limitation of the right of the said trustees at any time to sell any one or all of said securities, in the exercise of their sound discretion, for reinvestment of the proceeds of such sale or sales in accordance with the practice of this court and the laws of the 'state of New York.” Language could hardly be clearer or meaning plainer. The proceeds of any sale or sales of the securities were to be invested and accounted for as part of the principal of the trust estate, as a condition upon which the petitions of the life tenant were granted and the securities permitted to be held for her benefit. She certainly cannot now dispute the validity and binding force of the orders, nor question their obvious meaning.

. I am therefore of the opinion that the words “increase” and “profits,” as used in this will, mean simply “income,” and that the life tenent is entitled to no more than the income of this trust estate ; also, that, if she were entitled to any proceeds of the trust estate other than income, such proceeds would not be payable untd the termination of the life estate; also, that even if, under the will, she were entitled to more than the income in question, the orders so made on the 7th day of February, 1887, and the 23d day of december, 1887, respectively, would be a complete bar to her present claim to the advance realized on the sale of the securities included in said orders, or either of them; also, that the entire advance realized on the sale of securities belonging to said trust estate constitutes an accretion to the principal of said estate, and should be held and invested as a part thereof.

Objection is made to the claim of the plaintiff, Wilford Linsly, as executor, etc., of John H. Linsly, the deceased trustee, to commissions for receiving the principal of this trust estate, upon the ground that, prior to his death, said John H. Linsley. had commenced this action for leave to account and resign the trust. It is true that by a voluntary resignation a trustee surrenders his absolute right to commissions upon principal. His claim then rests, upon the sound discretion of the court. In re Allen, 29 Hun, 9; affirmed, 96 N. Y. 327 ; In re Hayden, 54 Hun, 204; 26 St. Rep. 911; affirmed, 125 N. Y. 776. But this trustee did not, as matter of fact, obtain the leave to resign which he sought, but died during the pendency of the action, which has since been continued by his executor. The trustee died in office, and the commencement of the action by him before his death, therefore, amounts to nothing more than an expression of his wish to resign at that time, and cannot operate to deprive his representative of the commissions earned.

Objection is also made to the claim of the plaintiff as executor of the will of the deceased trustee to commissions on securities received from the executors and not converted into cash until after the death of the trustee in question. This objection is based upon a decision of the court of appeals in the case of McAlpine v. Potter, 126 N. Y. 285; 37 St. Rep. 6, holding that where trustees have not in fact converted into money securities forming part of the capital of the trust estate, nor delivered the same as cash to the beneficiaries, they cannot be allowed to credit themselves with or receive commissions for receiving such part of the principal of the trust estate. After a careful examination, I am unable to dis-. tinguish that case from the one now under consideration. In the present action, certain of the securities received from the executors had not been sold by the trustees at the death of Mr. Linsly,e nor had any part of the same been paid over to the remainder-men. It is true that, in and by the orders hereinabove cited, a valuation had been placed upon' said securities, but such valuation was merely for the purpose of fixing and establishing a proper sinking or indemnity fund, and had no other significance whatsoever. The decision referred to must therefore be decreed controlling in this case, although at variance with the rule, as previously understood with regard to the matter in question.


source: Caselaw Access Project

author: Parker, J.

license: Public Domain

text:
    Thomas Crimmins, Resp’t, v. Metropolitan Elevated Railway Company et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed May 17, 1895.)

    1. Elevated railway — Lessees.
    A lessee in a lease, executed after, can recover only where it is the renewal of a lease executed before, the construction of the road.
    2. Same — Pleading.
    In such case, the complaint must allege that the existing lease was such renewal.
    Appeal from a judgment entered in favor of plaintiff.

      Julian T. Davies and Frederick Allis, for app’lts; Benjamin Yatest for resp’t.
   Parker, J.

This suit seems to have been prosecuted with the idea that certain facts which ought to have been alleged and proved could be assumed by the court. The complaint alleges the execution of certain leases March 1, 1869, by Adam T. Saclcett to-Thomas and John D. Crimmins, covering certain vacant lots on the southerly side of Sixtieth street, for a period of twenty-one years, with privileges of renewal for the further period of twenty-one years each ; the erection of buildings thereon by the lessors; an assignment by John D. Crimmons to Thomas Crimmins of his interest therein, and that Sarah E., Clarence, Gertrude T,, George E., Helen T., William and B. Lambert Saclcett leased and conveyed to the plaintiff, Thomas Crimmins, on the 15th day of April, 1890, the same premises for a period of twenty-one years, with the privilege of renewal for two further terms of twenty-one years each. It does not contain an allegation connecting the lease of 1869 with the one of 1890. The grantors in the leases are not the same, and the complaint does not allege that the title of the original lessor has become vested in the lessors of the lease of 1890. Nor does it allege that the second lease was made in purstiance of the renewal clause in the first lease, or that it grew out of it or was connected with it in any manner. This question was brought to the attention of the court by a motion to dismiss, made at the commencement of the trial. But the complaint was not amended, nor was an amendment asked for. Nor do we find any evidence connecting the leases of 1890 with those of 1869. The leases of 1890 do not recite the execution of former leases by Adam T. Sackett, and the devolution of his title upon the lessors in the lease of 1890. They do not recite any right of renewal covenanted in the former leases, or that the present leases are made in pursuance of such right, or that the new rent has been appraised or fixed under the terms of a renewal clause. No evidence was presented aside from the leases bearing upon these questions. We may conjecture that the lease of 1890 was a renewal of that of 1869, by parties who had succeeded to the title and interest of the lessor of the 1869 leases, but it is neither alleged nor proved that such is the fact. If the existence of such facts be essential to sustain a recovery for rental damage during the present term, the conjecture of the court will not suffice to accomplish the purpose. They must be proved.

The courts have been called upon to apply the general principle that the right of action belongs to the party who sustains the loss in a number of suits between lessees of real estate and elevated railroads, resulting in the establishment of certain rules: (1) When the lease is made subsequent to the construction of the elevated railroad, the exclusive right of action is in the landlord. This is because the rent is presumed to be based upon the reduced value of the property occasioned by the railroad which burdens the landlord with the loss. (2) The lessee has the right of action •where the lease was made before the building of the road. In such case the lessee pays for the full use of the property, and is deprived of part of it, and therefore is the one injured. (3) Under a renewal lease made after, but in pursuance of, a lease given before the elevated railroad, and by which the parties are constrained in fixing the rent, terms and conditions of the renewal lease, the right of action is in the lessee; and this is so because the two terms are treated as the outcome, in effect, of one continuous lease, commencing, before the railroad, and therefore within the rule applicable to leases for a term of term of years made prior to the construction of the elevated railroad. Kernochan v. Railroad Co., 128 N. Y. 559 ; 41 St. Rep. 110; Kearney v. Railroad Co., 129 N. Y. 76; 41 St. Rep. 119 ; Witmark v. Railroad Co., 76 Hun, 302; 57 St. Rep. 801.

Having these general rules in mind, we see that the lease of 1890, standing alone, and wholly unconnected with any other lease, would deny recovery to plaintiff for rental damage for the present term, for it was made after the railroad was built. Therefore, it became necessary for the plaintiff to prove, if he could, that the lease of 1890 was not an independent lease, but one of the renewals provided for by the lease of 1869, which latter lease ■so constrained the action of the parties that they or one of them were not a condition to negotiate freely with reference to the sitúatian existing in 1890. This burden the plaintiff did not meet. Indeed, his complaint was not so framed as to entitle him to meet it without amendment. It did not allege that the lease of 1890 was a renewal of the lease of 1869, the only other lease pleaded. Although it asserted that the lessors were different, it contained no allegation that the lessors in the lease of 1890 had succeeded to the title of the lessor in the lease of 1869. Upon these questions the evidence, as we observed at the outset, is also silent. As the judgment of a court must be founded on evidence rather than surmise, the judgment rendered must fall for want of support.

The judgment should be reversed, and a new trial granted, with costs to appellants to abide the event.

All concur.


author: Mayham, P. J.

text:
    John Burk, as Administrator, etc., App’lt, v. President, Managers and Company of the Delaware and Hudson Canal Company, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed May 14, 1895.)

    Negligence — Railroads—Private crossing.
    A railroad company, at a private crossing, is not required to give any warning of the approach of its trains, and the only duty it owes the licensee at such crossing is to do him no intentional wrong or injury.
    Appeal from a judgment entered on the decision of the trial judge dismissing the complaint.

      E. T. Brackett (T. F. Hamilton, of counsel), for app’lt; Lewis E. Carr, for resp’t.
   Mayham, P. J.

The plaintiff prosecuted this action as administrator to recover for the alleged negligence of the defendant in the management of its railroad train, by which the plaintiff’s intestate was killed. The case discloses that the defendant is a railroad corporation, and that in 1834 it acquired a right of way for its railroad, the line of which has not since that' time been changed, over and upon which it has since owned and operated a railroad. That in 1871 the grandfather of the intestate, with whom the intestate resided, purchased a piece of land adjacent to such railroad land, and adjoining it on the east, on which the he built a house, in which he and his family, since 1872, have resided. That such house stood near the lands of the railroad, and that the persons residing in such house had from the time of erection thereof been in the habit of crossing over the defendant’s railroad lands and track from the house to the highway on the opposite side of the railroad, which ran at that point about parallel with the line or the railroad, and that that was the only or usual way of egress from and ingress to the house from such highway. At the time of the accident, and for some time previous thereto, the plaintiff’s intestate had resided in the house as a member of his grandfather’s family, and was, as such, accustomed to pass over and across this railroad track to and from such house. On the day of the injury which resulted in intestate’s death, he started for school, and while attempting to cross the defendant’s railroad, he was struck by a train backing down on this track and killed. He was at the time about six years old, but no claim is made that he was non sui juris at the time of the injury.

When the train -struck intestate, it was moving at the rate about fifteen miles an hour, and no bell was rung or whistle blown to-give warning of the moving of the train. There is no proof in the case that this was an unusual rate of speed for the train at that point, or that there was any custom on the part of tlie defendant to give any warning or signal of the approach of the train at that point. The plaintiff in this action, to entitle him to recover, must, show that the defendant has failed in tire performance of some duty which it owed the intestate at the time of the injury was inflicted and that such failure caused or contributed to the injury. The plaintiff, having alleged the negligence of the defendant as the cause of the injury, assumed the burden of establishing by proof the fact or facts establishing such negligence. Heinemann v. Heard, 62 N. Y. 455; Lamb v. Transportation Co., 46 id. 271-279. These requirements are not met by or established by proof of the accident alone, or by any presumption which can be drawn from it. The negligence cannot be presumed by reasoning from the effect back to some supposed cause, but a cause arising in some failure of duty on the part of the defendant must be shown, which produced the injurious effect complained of. In Cordell v. Railroad Co., 75 id. 332, Earl, J., says :

“To maintain this action, the plaintiff must show that the death of the intestate was caused solely by the negligence of the defendant this must be shown by competent proof. It must not be left to mere speculation.”

This rule has been so long and universally accepted as the true one in this class of cases that it may be regarded as elementary, and the appellant, in the arguments in support of this appeal, seems to concede its application to this case. But the appellant insists that he has complied .with the requirements of this rule by proving the omission on the part of the defendant to ring a bell or blow a whistle when approaching the Burk house. It is quite clear from all of the evidence in this case that this was at most only a. private way over the the defendant’s railroad, for the use of the occupants of the Burk house, arising from a user or implied license; but it is insisted that that is enough to bring the case within the rule laid down in Barry v. Railroad, Co., 92 N. Y. 292. But that cáse discloses that the public were in the habit' of crossing the track at the point where the injury occurred and had been for more than thirty years, and that several hundreds crossed there daily. The only real analogy between that case and the one at bar is that there was an unrevoked license of the defendant to cross its track in either case, but in the one case it was a license to the public, which gave it the characteristics of a public crossing, while in the other case it was in the nature of a private license, to-be used only in the connection with the Burk dwelling. The distinction was one which clearly imposed a different obligation upon the defendants in these cases, and the case relied upon pecognizes the difference in the obligation of a railroad company towards the public who are permitted to cross its tracks by sufferance and one who by sufferance is casually thereon. Barry v. Railroad Co., supra. In Byrne v. Railroad Co., 104 id. 362; 5 St. Rep. 722, the public had notoriously and constantly been in the habit of crossing the defendant’s track, and it was held that that fact imposed upon the defendants a duty to exercise reasonable care in running its trains so as to protect persons crossing from injury. These cases can be clearly •distinguished from the one at bar in this, that the former by their use had become or were public crossings, while the case at bar is at most but a private crossing, and it is insisted by the respondent that this difference obligations on the part of the defendants from those which the law imposes at a public crossing that in case of a public crossing the law imposes upon a railroad company the exercise of active vigilance in the protection of the public from the dangerous agencies which it has created, while in case of a private crossing by a license the license to cross imposed no duty upon the railroad company except to do him no intentional harm or wanton injury. In Matze v. Railroad Co., 1 Hun, 417, it was held by the general term sitting in this department that:

“Even if there was evidence from which a license might be implied, and the plaintiff was not a trespasser, such liceense created no legal right and imposed no duty upon the defendant except the general duty, which every man owes to others, to do them no intentional wrong or injury.” ■

And Miller, J., in another part of the same opinion, uses this language:

“I do not understand that they owe any duty, even to the ■owner of a private right of way through which they pass, which calls upon them to exercise care in running their trains.”

This doctrine was approved, and the language of Miller, J., quoted with approbation, by Hardin, P. J., in Cornell v. Railroad Co., 40 St. Rep. 1; which was an action against the defendant for injuring the plaintiff’s horse, which was crossing the defendant’s track at a private crossing. In Nicholson v. Railway Co., 41 N. Y. 525, the court, in discussing this question, uses the following language:

“Nicholson, deceased, * * * was not on his own ground. At most, he had a mere license to cross the defendant’s track; a license implied by use, and from the fact that such use had not been expressly forbidden. But such license could create no legal right, and imposed no duty upon the defendant except the general duty, which every man owes to others, to do them no intentional wrong or injury.”

This same doctrine is repeated and enforced in Collins v. Railroad Co., 71 Hun, 504; 55 St. Rep. 82. I think it must now be held to be the settled law of this state that a railroad company, at a private crossing, is not required to give any warning of the approach of its train, and that the only duty it owes the licensee at the crossing is to do him no intentional wrong or injury. Applying that rule to the case at bar, upon the evidence as it stands, we see no ground upon which the plaintiff could, legally recover in this case. But, if we are wrong in the conclusion, still this court, on appeal, could not properly reverse this judgment, as the learned trial judge was, by the submission of the case to him without a jury, called upon to determine the facts as well as the law. “Negligence is a question of fact, and should usually be decided as such, especially whenever men of ordinary prudence and discretion might differ as to the character of the act under the circumstances of the case, the position and conditions of the parties.” Morrison, v. Railroad Co., 56 N. Y. 308; Wendell v. Railroad Co., 91 id. 427. Applying the rule above quoted, the question of negligence became one for the judge, acting as and for the jury. It is clear that the question of negligence in this case was one about which men of ordinary discretion might differ,-as we find here.the learned judge and counsel for appellant differing on that vital question. Under the circumstances of this case, the finding of the judge upon that question cannot be disturbed on the appeal. Judgment affirmed, with costs.

All concur.


text:
    The People, Resp’t. v. William Smith, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 14, 1895.)

    1. Lakceny — Complaint.
    An allegation in the complaint of taking money out of the drawer of the . complainant’s store is equivalent to the charge of taking it out of the possession of complainant, who must be deemed, within the language of section 528 of the Penal Code, the true owner.
    2. Witness — Child—Obiminal cases.
    It is discretionary, with the court to permit a child under the age of twelve years to testify in a criminal case, but, upon its uncorroborated testimony, the defendant cannot be convicted.
    Appeal from a judgment of conviction for larceny.

      Clark L. Jordan, for app’lt; L. F. Fish, Dist. Atty., for the People.
   Mayham, P. J.

The complaint upon which the warrant against the defendant issued was in writing and under oáth, and was as follows:

“That one William' Smith, at the town of Mohawk, in the county of Montgomery, aforesaid, on the 29th day of September, 1894, did feloniously, wrongfully, unjustly, unlawfully, wickedly, willfully, corruptly, falsely, maliciously, and knowingly violate sections 528 and 532 of chapter 676 of the Laws of the state of New York passed July 26, 1881, entitled ‘An act to establish a Penal Code,’ as amended 1882, 1883, and amendatory thereto, in that, at-the time and place aforesaid, he did take from the money drawer of said deponent’s store the sum of $8 in money, being lawful ' money of the United States of America, consisting of greenbacks or paper money, national or bank bills, of the following denomination, to wit: One $5 bill; one $2 bill; and two $1 bills."

Upon this complaint the magistrate issued his warrant, on which the defendant was arrested, and brought before him, and, without the advice of counsel, pleaded not guilty to the charge; whereupon the trial was adjourned until a future day, at which time the defendant appeared in person and by his attorney; and objected in various ways to the form of the proceedings, and to the jurisdiction of the magistrate, which objections were overruled. The defendant then withdrew his plea of not guilty, and asked and obtained permission of the court to cross-examine the complainant for the purpose of ascertaining whether or not the complaint was made on information and belief, or on her own knowledge. On the examination of the complainant by the defendant’s counsel, it appeared that she left the store with the money alleged to have been taken in the money drawer, with two or three people in the store when she left, but that the defendant was not at that time in the store ; that on her return she met the defendant going from the direction of the store, and that, on going into the store, she found that the money in question was not in the drawer; that she did not see the defendant take the money, and all that she knew about it was what she was told by two persons in the store at the time. On this proof, the defendant’s counsel moved for the discharge of the prisoner, on the ground that the complainant had no personal knowledge of the statement contained in the complaint. That motion was denied, and the defendant thereupon entered a plea of not guilty. The case was tried before a jury, and at the conelussion of the people’s evidence, the defendant’s counsel moved for the discharge of the prisoner, and that the court direct a verdict of not guilty, on the following grounds:

“(1) Ño crime has been established; (2) that no competent evidence has been produced showing that the defendant has committed any crime ; (3) that the complaint nor the warrant nor evidence does not show to whom the property claimed to have been stolen belonged; (4) that the ownership of the money in question is neither alleged or proved ; (5) the warrant of arrest in this case does not describe a crime, as required by law.”

The court denied the motion, and the case was submitted to the jury, who found the defendant guilty.

The appellant now insists that the complaint, warrant and proof are insufficient to charge him with the commission of the crime of larceny, and that it was error on the part of the magistrate to refuse to direct the jury to find the defendant not guilty.

The first point urged here is that the complaint on which the warrant issued was insufficient to give the justice jurisdiction, as the same was wholly on information and belief. An inspection of the complaint shows that the original information was positively stated and sworn to by the complainant, and not on information and belief. Clearly, that was, in that respect, sufficient to give the justice jurisdiction of the person and subject-matter, and authorized the issue of the process by him, at the time of its issue by him.

But it is insisted that by the cross-examination of the complainant, after the warrant was issued, and while the defendant was in custody under it, before the magistrate, it appeared that her only knowledge was information derived from others, except the fact that the money alleged to have been stolen was in the money drawer when she left the store, and was not there on her return, and that she met the defendant on her return to the store, going in a direction from the store. We think the facts known to her and sworn to by her were sufficient to establish the wrongful taking of the money by some person not entitled to the same, and the information disclosed by her on the cross-examination is, we think, a sufficient disclosure of her source of information to justify her in making the complaint. No constitutional or legal right of the defendant was violated in issuing the warrant on the complaint or information in this case, unless the omission to state the name of the true owner of the money alleged to have been stolen renders the information, warrant, proof, and conviction erroneous.

Pen. Code, § 528, defines larceny as follows:

“A person who with intent to deprive or defraud the true owner of his property, or the use and benefit thereof, or to appropriate the same to the use of the taker or any other person, * * * steals such property, and is guilty of larceny.” ■

I think, for the purposes of this prosecution, the allegation of taking the money out of the drawer of the complainant's store is equivalent to the charge of taking the money out of complainant’s possession ; and that, as against a wrongdoer’, she must be deemed, within the language of the section above quoted, the “ true owner.”

It is also urged that this conviction should be reversed for the reason that it was upon the unsupported evidence of a child under twelve years old, in violation of the provisions of section 392 of the Code of Criminal Procedure. The only witness who testified to the fact of the taking of this money by the defendant was the seven year old son of the complainant. He was, after an examination by the magistrate, in the exercise of the discretion of the magistrate, given by that section of the Criminal Code, permitted to be sworn, and testified that the defendant took money from this drawer. In such case the judge or magistrate is vested by that section with a discretion to swear the child, or to receive his unsworn statement. In the exercise of that discretion, he administered the oath to the boy, and took his sworn testimony. That was not error, but the proper exercise of a discretion ; but, upon that evidence alone the defendant could not be convicted. Was he corroborated, so as to make his evidence competent to be considered by the jury ? We think he was. As to the question of the presence of the defendant in the store he is corroborated by the testimony of the clerk, who went, while the defendant was there, into the meat market, and also by the testimony of Norman and Orson Sweet. He was also corroborated upon the question of money being taken, by the complainant, who missed the money immediately on her return to the store.

Upon all of this evidence, a question of fact was presented'and the jury, upon such evidence, having found that the defendant was guilty, we see no reason for reversal of the judgment of conviction entered upon this verdict.

Conviction affirmed.

All concur.


author: Cullen, J.

text:
    Interstate Steamboat Company, App’lt, v. First National Bank of Syracuse et al., Resp'ts.

      (Supreme Court, General Term, Second Department,

      Filed May 13, 1895.)

    Evidence — Parol.
    An oral agreement between the parties, made prior to or at the time of executing a written agreement for the construction of a ship, requiring it to be completed before title passes to the purchasers, by which the title to the ship was to pass from the inception of the work, is not admissible.
    Appeal from a judgment, entered on a nonsuit.

      Henry G. Harris, for app’lt; Gill & Stillwell (H. B. Closson) of counsel, for resp’t.
   Cullen, J.

This is an appeal from a judgment in favor of the defendant entered .upon a nonsuit at circuit. The Cowles Engineering Company entered into an agreement with the plaintiff for the construction of a steamboat to be delivered at Brooklyn. The boat was launched unfinished. They were in the yard of the Cowles Company two boilers, a steering wheel, and some lumber intended to complete the construction of the steamboat, but not yet placed in her. The defendants were creditors of the Cowles Company, and obtained attachments against that company. The sheriff levied on the articles named. The plaintiff brought this action to recover the property, and the attaching creditors were substituted as defendants in place of the sheriff. The plaintiff took no exception to the ruling of the court dismissing the complaint, and no motion was made for a new trial. We are hence without power to review the decision below in this respect. We may say, however, that we see nothing in the contract for the construction of this steamer to take the case out of rule decided in Andrews v. Durant, 11 N. Y. 35, that title does not vest in an article to be manufactured until finished and delivered, or ready for delivery, and approved by the party for whom it is to be constructed. Nor can the law of Pennsylvania apply to this case, as the contract was to be performed in this state. Dyke v. Railwuy Co., 45 N. Y. 113 ; Curtis v. Railroad Co., 74 id. 116.

The only point properly raised by exception is as to the exclusion of evidence to show an oral agreement between the parties prior to or at the time of the execution of the written agreement, by which title to the property was, from the inception of the work, to vest in the plaintiff. We think this evidence properly excluded. If admitted, it would have altered and modified the effect of the written agreement. By the written agreement, under the law as we have construed it, the destruction of the vessel by fire or accident would not have relieved the construction from its obligation to perform the contract; the loss would have-fallen upon it. Under the oral agreement that the title should be-in the plaintiff the destruction of the boat without fault on the part of the builder would relieve it from such obligation, and the loss fall upon the plaintiff. The evidence was therefore incompetent. Engelhorn v. Reitlinger, 122 N. Y. 76; 33 St. Rep. 275; Case v. Bridge Co., 134 N. Y. 78; 45 St. Rep. 603. There is the further criticism to be made on the evidence excluded; it is doubtful whether the offer to prove went beyond the question of the title of the vessel itself. The articles in suit had not become any part of the vessel.

The judgment- appealed from should be affirmed, with costs.


text:
    In the Matter of the Petition by William H. Janes to Revoke the Probate of Certain Clauses of the Last Will of Eckford Webb, Deceased.

      (Supreme Court, General Term, Second Department,

      Filed May 13, 1895.)

    1. Will — Revocation—Party.
    A legatee under the residuary clause has sufficient inrerest to maintain a. proceeding to revoke the probate of certain clauses of a will on the ground that they were procured by fraud and deceit practised by the beneficiary in personating herself, as a single woman, while, as a matter of fact, she. was married.
    2. Same.
    The probate will not be revoked where the deceit, if any, only induced the employment of the defendant, and did not affect the validity of the devise, which was in consideration of services to be rendered to testator until his death.
    Appeal from a decree dismissing the petition.

      Louis O. Van Doren (H. B. Twombly), of counsel, for app’lt; Dailey, Bell & Crane (A. H. Dailey, of counsel), for resp’t.
   Cullen, J.

This is an appeal from a decree of the surrogate of Kings county denying the petition of the appellant tó revoke the probate of certain clauses of the will of the testator in favor of the respondent, on the ground that they were procured by fraud and deceit practiced by the respondent in personating herself as a. single woman, while, as a matter of fact, she was married. We have no doubt that this proceeding will lie, and that the petitioner, as legatee under the residuary clause, has sufficient interest-to maintain the proceeding. At the close of the petitioner’s case, without calling on the respondent for proof, the surrogate denied the application. On this appeal the matter comes before us substantially for a rehearing on the facts, and we must decide whether the case made by the petitioner established a fraud or imposition on the testator; and, secondly, whether the deceit was such as to avoid the testamentary provisions in respondent’s behalf. The testator was over sixty-five years old. He had no immediate family, his wife and children having died many years before. He was excessively corpulent, and required many attentions to his-personal wants. He kept house, and had a housekeeper, whom he had discharged in April, 1889, upon her announcement of her intention to marry. The proof on the part of the petitioner showed the discharged of the previous housekeeper for the reason stated, and also declarations of the deceased that he would not have a married woman in his .service in that position, and that a married woman could not properly attend to his wants. Evidence was given tending to show that the respondent, knowing the aversion of the deceased to the employment of a married woman, and expecting to share in his bounty, represented herself as single¡ and obtained the position as housekeeper. She went into the employment of deceased in August, 1891, and remained with him in such employment till the death of the testator, in August, 1893. By his will, dated August 20, 1891, the deceased made the following provisions for the respondent:

“ Third. I give, devise, and bequeath to Miss Jessie Belknap Ranken, provided she remains with me up to the time of my decease, the house and lot known as ' Ho. 78 Rush street,! in the Hineteeth ward of the city of Brooklyn, together with the sum of five thousand dollars, and all the pictures, piano, and household furniture remaining in said house at the time of my decease, to have and to hold the same to her, her heirs,» executors, administrators, and assigns, forever. The foregoing devise and bequest are made by me to the said Jessie Belknap Ranken out of respect for her, and for her services and kindness to me, and with the expectation that she will remain with me as long as I live. If, however, the said Jessie Belknap Ranken shall not remain with me up to the time of my decease, then the said devise and bequest to her shall be void and of no effect.’’

And also one-third of his residuary estate, subject to the like condition that she should live with him till his decease. If the deceased was deceived as to the fact of the respondent being married, we think that that fact itself, considering the circumstances and the relation of the parties, would not avoid the provisions of the will in her favor. The testator was not opposed to marriage in itself, nor did he contemplate any relation with the respondent to which her marriage would be a bar. He was not her suitor. His objection to having a married woman in his employ was based simply on his belief that a married woman could not give him the attention and service that he required. What dictated his bounty towards the respondent he himself has stated, not love, not affection, but “ out of respect for her, for her services and kindness to me, and with the expectation that she will remain with me as long as I live.” He was careful to provide against her abandonment of him, or his dissatisfaction with and discharge of her, by the proviso that the legacy and devise should be void in-case she did not remain with him until his death. Therefore, if deceived as to her marriage, that deception, at most, led to her employment. His bounty was due, not to the fact that she was single, but that she served him well, and that she did serve him well appears not only in the evidence in the case, but by the fact that he retained her till his death. The case, therefore, has no analogy to a gift to a supposed wife or to a fiancee, where a previous marriage would be a bar to the relationship, which relationship was the moving cause of the legacy. It is further to be borne in mind that the will in this respect is but a reproduction of similar provisions made in favor of a previous housekeeper.

But we do not believe that the deceased was deceived as to the fact of the respondent’s being a married woman. The evidence to establish this deception and imposture rests principally on the testimony of Mrs. Russell, whose story is full of contradictions, and in many particulars wholly improbable. From her we learn that for six months before the occasion when the respondent and witness visited Mr. Webb to obtain respondent employment the deceased had been taking the respondent cut driving, though witness never saw Webb during this time at the residence of respondent and her husband. According' to Mrs. Russell’s story, when _the first visit to Webb was proposed the respondent told witness what provisions Webb had made in his will for his former housekeeper, and what provisions she would obtain for herself, and singularly, in these statements, the respondent seems to have been entirely accurate. If the story of this witness is true, it is perfectly palpable that the whole subject had been discussed and the terms agreed upon, between Webb and respondent before the latter ever spoke to the witness about the matter. Nor can it be doubted that during these meetings of Webb with the woman whom he took out driving, at whose house he was never seen, he had gained such information concerning her as he desired. It is not necessary to suspect any impropriety in the relations between the deceased and the respondent, though, if there were such, it would not invalidate the will. In re Will of Mondorf 110 N. Y. 450; 18 St. Rep. 530. The deceased, so far as domestic life, was practically alone in the world, and seems to have had but little resources within himself of amusement or enjoyment. Undoubtedly he required from his housekeeper far more than mere supervision of his househould affairs. In his condition he may very well have wanted the company and kindness of a woman as well as her services, but not her meretricious favors. Conscious that his age and physical infirmities precluded him from obtaining such company by any personal attractions, he sought by the offer of compensation to obtain the kindly services of some woman during his declining years. This respondent seems to have discharged the requirements of deceased to his satisfaction, and we see nothing in the evidence in this case that compels us to reverse his judgment. The decree appealed from should be affirmed, with costs. All concur.


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    Eliza Purdy, as Executrix, etc., App’lt, v. New York Central and Hudson River Railroad Company, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May 13, 1895.)

    Negligence — Contributory.
    To go on a railroad where there are double tracks, after a train has passed, without waiting the movement of the train sufficiently far to give a view of the other track, constitutes contributory negligence.

      Appeal from a judgment entered on a nonsuit.

      George W. Weiant, for app’lt; Ashbel Green, for resp’t.
   Cullen, J.

This is an appeal from a. judgment for the defendant, entered on a nonsuit at circuit. The action is to recover damages for causing the death of plaintiff’s testator. The facts attendant on the accident are within a very brief compass. The station of the West Shore.Bailroad at Haverstraw lies to the east of the road, which there runs north and south. At the station are three tracks. The easterly track, and one nearest the station, is a siding; next is the north-bound track; and the third, and most westerly, is the south-bound track. At a distance of. 139 feet to the north of the station is the road crossing at which the deceased was struck. The siding to the north of the crossing was occupied by freight cars. Except as obstructed by the cars, the view to the north along the track was clear'for over 2,000 feet. The plaintiff and her husband and testator were residents of Haverstraw, and familiar with the crossing. On the day of the accident they came from the city to Haverstraw, arriving there about five o’clock in the afternoon. They alighted from the cars at the station, and walked north to the road crossing. The train on which they had traveled was at this time passing the crossing. They waited for the train to clear the crossing. After the train had passed, they started to cross the track. When they arrived at the westerly track, or close to it, the deceased was struck by an engine of a south-bound train, and received injuries from which he died. The plaintiff testified that before starting to cross any of the tracks they looked to the north, and saw no train approaching, the view in this direction being obstructed by the standing freight oars ; and that they did not discover the southbound train until it was upon them. That the view to the north of a person close to the track would be obstructed by the freight cars is unquestionable. It would be also obstructed by the northbound train till that had passed out of sight. How far that train had passed beyond the crossing when the plaintiff and her husband started to cross the tracks the plaintiff cannot say. The question of the contributory negligence of the deceased presented by this evidence is a narrow one, — was the deceased, as a matter of law, on arriving at the north-bound track, bound to await the movement of the train on that track sufficiently far to the north to give a view of the further track, so that he might discover whether any train was approaching on that track ? It is plain that if he had taken this precaution he would have avoided the injury, for when he reached the first of the main tracks the freight cars no longer interfered with his view. The question seems settled by the later decisions of the court of appeals adversely to the plaintiff. In Daniels v. Rapid-Transit Co., 125 N. Y. 407 ; 35 St. Rep. 435, a person killed under substantially similar circumstances was held guilty of negligence. “He knew that there were two railroad tracks, upon which trains passed in opposite directions. The passage of the train on the down track obstructed his vision in the direction from which the other train carne until it had passed the ■ crossing, and proceeded some distance beyond. The deceased apparently must have proceeded to cross the track immediately after the down train passed the crossing without looking up the road, because, if he had looked after crossing the south track, before stepping on the north track, it is, upon the evidence, indisputable that he could have seen the approaching train. It is impossible to escape the conclusion on the evidence that the accident happened in consequence of his thoughtlessness, or at least that it was not attributably to any negligence on the part of the defendant.” To the same effect are the following cases: Woodard v. Railroad Co., 106 N. Y. 375; 11 St. Rep. 169; Young v. Railroad Co., 107 N. Y. 500; 12 St. Rep. 285. We have no overlooked the case of Greany v. Railroad Co., 101 N. Y. 425, cited by the plaintiff, and which doubtless tends to support her claim. But we look upon that case as, if not overruled, at least much limited, by the subsequent decisions cited. The Greany Cuse was decided by divided court, — four to three. The Woodard Gase was decided by a similar vote, one of the dissenting judges in the Greany Gase writing the prevailing opinion. But in the Young Case the dissent was reduced to a single vote, — that of the judge who wrote the opinion .in the Greany Gase. We feel bound by the latest decisions of the court. The judgment appealed from should be affirmed, with costs.


author: Cullen, J. Brown, P. J.

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    George Reid, App’lt, v. Wilson L. Defendorf, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May 13, 1895.)

    Appeal — Justice’s court — Time to appeal.
    The time within which an appeal from a justice’s court judgment must be taken does not begin to run, where the party, against whom the judgment is rendered, has no knowledge of its rendition by reason of non-access to the justice’s docket.
    Appeal from an order, declaring the service of defendant’s notice of appeal valid and made in time.
    Lexow, Wyre & Bannister, for app’lt; Richard S. Harvey, for resp’t.
   Cullen, J.

This is an appeal from an order made by the county court of Rockland county declaring the service of defendant’s notice of appeal from a judgment rendered by a justice of the peace valid and made in time. The cause was tried before the justice on February 1st, and it was stipulated that the parties should have till February 7th to file briefs, and the justice four days thereafter to decide the cause. The justice, finding himself in poor health, decided the case on February 6th, before the receipt of the briefs of the parties; entered the judgment in his docket; and placed the docket book in his safe. He then left the state on a visit, and directed his nephew, in whose charge he left his affairs, to show his books to persons making inquiries. No notice was given to the defendant of the decision of the cause. He called several times at the justice’s office, but found it closed, the nephew only attending the office at times. The justice returned on February 28th. The defendant learned of the judgment -against him on March 1st, and on the 17th of that month served his notice of appeal and filed his bonds. The plaintiff’s attorneys returned the notice of appeal as served too late. Thereupon the defendant applied for the order appealed from.

The Code allows twenty days after the entry of a judgment in the justice’s docket within which a party may take an appeal. See. 3046. Concededly, more than that time elapsed from the entry of the judgment by the justice till the defendant took the first step towards an appeal. If the writing by the justice in his book constituted a perfected entry of judgment, then the defendant has lost his right to appeal. But we think the law is otherwise. It is not necessary for the successful party in a justice’s court to give any notice to his adversary to limit the time to appeal. The parties must examine the justice’s record, and discover for themselves the decision of the court. But, of course, for this purpose, it is necessary that the justice’s docket should be accessible and open for inspection; and the Code has enacted express directions in this regard. By section 3144, when removing from a town, the justice must deliver his docket book to the, clerk of the town. By section 3141, a justice’s docket must be kept open by him during the hours the sheriff’s office is required by law to be open, for search and examination. When the law provides that a judgment be entered in a docket book, it means a docket book to be kept open as prescribed by law. Both sections of the Code must be read together. As long as the docket book was inaccessible to the party, the judgment or decision might as well have only existed in the judge’s mind. It may be doubted whether there was a legal judgment in this case until the docket book was opened to the public, but in no view should the time to appeal commence to run until that time.

Tne order appealed from should be affirmed, with $10 costs and disbursements.

Dykmah, J., concurs.

Brown, P. J.

(dissenting.) — The right to appeal from a judgment is created solely by statute, and, where a period of time in which an appeal may be taken has been fixed by the legislature, the court has no power to extend the time. Wait v. Van Allen, 22 N. Y. 319 ; Salles v. Butler, 27 id. 639; Thomas v. Thomas, 18 Hun, 482. An appeal from a judgment rendered by a justice of the peace must be taken within twenty days after the entry of the judgment in the justice’s docket, and it is conceded that the appeal in this case was not taken within that period. The judgment rendered against the defendant is either valid or invalid. If it is void, there is nothing to appeal from, and the motion should have been denied. If it is valid, it became so immediately upon being rendered by the justice, and nothing that happened thereafter could enlarge the time to appeal therefrom. That it is a valid judgment there can be no question. The justice had jurisdiction of the parties and of the aubject-matter. There was a trial, and there was power to enter the judgment. A judgment is rendered by a justice of the peace by entering it in his docket Code Civ. Proc. § 8015. That was done in this case. That in so doing the justice violated a stipulation of the parties in reference to submitting their briefs is of no importance. That act (if true) was an irregularity only, and did not affect the power of the justice. The judgment, therefore, became valid and effectual when the justice entered it in his docket, and could be enforced by execution. The fact that the justice immediately left the state without delivering his • docket to the town clerk, and leaving it open for inspection, had no effect upon his previous acts. Reither did it enlarge the defendants rights in reference to it. It was undoubtedly a violation of offipial duty, but a thing of no importance to the question before us. The case then comes to this: A valid judgment has been rendered against the defendant, and he has, by the act of the justice, and through no fault of his own, been deprived of the right to appeal therefrom. The court has no power to restore fa> him the right thus lost. The cases cited have settled that quesr tian, and the motion should have been denied. But he is not without a remedy. The facts set out in the motion papers, and which are not denied by the plaintiff make a plain case for equitable relief. If the judgment had been recovered in a court-of record, the wrong suffered by the defendant could be remedied on a motion for a new trial. But a justice’s court has no power to entertain such a motion. Since courts of law have possessed the power to grant new trials, courts of equity have rarely interfered to restrain the collection of judgments rendered therein, but the power to do so is one of the well-recognized heads of equity jurisdiction. Dobson v. Pearce, 12 N. Y. 165; U. S. v. Throckmorton, 98 U. S. 61.

The facts show that a species of fraud has been practiced upon the defendant. The justice should not have entered the judgment until after the date fixed for the submission of the briefs, and the plaintiff is not morally entitled to enforce a judgment in which the defendant was deprived of his right to argue the case. These facts create a plain case for equitable cognizance. The order appealed from is in violation of the statutes and decisions of this state. The opinion of my associate establishes a bad precedent, and hence I dissent.


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    Village of Flushing, Resp’t, v. Patrick Carraher, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 13, 1895.)

    Boaed of health — Ohdinanoe.
    Section 21, chapter 661 of 1893, does not authorize a hoard of health to make a regulation, forbidding any one from keeping cows within 200 feet of any dwelling without a special permit from the board.
    Appeal from a judgment entered in favor of plaintiff.

      C. A. S. Van Nostrand, for app’lt; Joseph Fitch, for resp’t.
   Cullen, J.

This is an appeal from, a judgment of the county court in favor of the plaintiff, entered on a verdict directed by the court. This action is to recover fifty dollars, as a penalty for violating the following section of the health ordinances enacted by the board of health of the village of Flushing:

“Mo cows shall be kept within two hundred feet of any dwelling in the village of Flushing without a special permit obtained from the board of health. Any violation of the provisions of this ordinance shall be punished by a fine of'fifty dollars.”

There is no doubt of the fact that the defendant did violate this ordinance. The defendant, however, claims that, to subject him to the penalty prescribed, it was necessary to show more than a mere violation of the ordinance; that it was incumbent on the plaintiff to establish by proof that the keeping of the cows was a nuisance. And, further, the defendant challenges the validity of the ordinance itself. It is true that the declaration of a board of health that'a particular thing is a nuisance will not make it such, if in law it is not a nuisance, and that the question of nuisance is still open to determination in the courts. People ex rel. Copcutt v. Board of Health of the City of Yonkers, 140 N. Y. 1; 55 St. Rep. 416. This case does not fall within that principle.- The ordinance is in the nature of a general police regulation, if justly within the police power, can be enacted by the legislature itself, or committed by the legislature to the board of health. Health Department of City of New York v. Rector, etc. of Trinity Church, 145 N. Y. 37; 64 St. Rep. 507; Polinsky v. People, 73 N. Y. 70. That such an ordinance as the one under the review should be valid, it is necessary that it should be reasonable. There was no proof offered by defendant to show that the ordinance was unreasonable. Certainly the presence of cow stables may affect public health, and if the locality was densely populated, might even justly the prohibition.

But there is one vice in this ordinance that renders it, in our judgment, invalid. The powers conferred upon the local boards of health (section 21, chap. 661, Laws 1893) are:

“Every such local board shall make and publish from time to time all such orders and regulations as they may deem necessary and proper for the preservation of life and health, and the execution and enforcement of the public health in the municipality. It shall make without publication thereof such orders and regulations for suppression of nuisances, and concerning _all other matters in their judgment detrimental to the public health in special or individual cases, not of general publication, and serve copies thereof •35’

The powers thus granted are of two distinct characters, — the first the power of general regulation, or quasi regulation; the second, the power to abate a particular nuisance. A failure to obey any valid exercise by the health board of the first power would, under the case of Health Department of City of New York v. Rector, etc., of Trinity Church, per se, subject the offender to punishment. But, on a violation of an order of t health board under the second power, the party would, under the authority of People ex rel. Copcutto v. Board of Health of City of Yonkers, supra, still have the right to contest in the court the question of the existence of a nuisance. The board of health, by the ordinance under re view, has not forbidden the keeping of cows within two hundred feet of a dwelling house, but so keeping cows without a special permit. In other words, the board has taken to itself the power of licensing now stables. Ho such power has been granted it by the legislature. If the matter is such that a general ordinance can be passed upon the subject, then such ordinance should be enacted, and all will be bound by it. If not susceptible of general regulation-, then the board should proceed by special order in the particular case, when the person attacked may defend himself in the courts. The powers vested in the board of health are very great, — probably necessarily so. But to give these boards the licensing power, or power to dispense with their own general regulations, in behalf of some favored individual, might lead to the greatest abuse and jobbery. So a by-law providing that no person should keep a slaughterhouse without a special resolution of the council was held invalid as creating a monopoly. In re Nash, 33 U. C. Q. B. 181. So, also, where the trustees of a village were authorized to fix a fire district, within which frame buildings should not be constructed, and an ordinance was passed fixing a district within which such buildings should not be erected without the consent of the trustees, we have intimated that the. ordinance was bad. Village of New Rochelle v. Lang, 75 Hun, 608; 59 St. Rep. 616.

The judgment appealed from should be reversed, and the complaint dismissed, with costs.

All concur.