author: LeakNbd, P. J.:

text:
    WILLIAM J. WESTCOTT, Appellant, v. SEYMOUR AINSWORTH, HIRAM TOMPKINS and JOHN L. PERRY, Respondents.

      False representations — what are — knowledge of their falseness.

    Defendants, in order to induce the plaintiff to sell them goods, represented that they were the owners of a hotel, of which the estimated cost was $800,000, and upon which there was a trust mortgage of $600,000, for which amount bonds had been issued, $525,000 of which had been sold at par. It appeared, upon the trial of this action, brought to recover damages sustained from defendants’ false representations, that the amount stated to have been sold at par included $20,000 held by banks as collateral security, $150,000 turned out in payment for the real estate, and certain bonds subscribed for by parties who had refused to take them, all which facts were known to defendants. Held, that the evidence showed the statement to be false and fraudulent.
    Upon the inquiry being made of one of the defendants as to a report that all his property was covered up in his wife’s name, he replied that the only property she had in the world was the little house in which she lived. It appeared upon the trial that he was, at that time, indebted to his wife to the amount of $65,000, of which $25,000 was for the price of real estate sold by her to him, and for which he had agreed to give her a mortgage. Held, that the statement was false and fraudulent.
    One of the defendants stated that he had put $20,000 into the business. It appeared that he had in fact put in but $16,000 in cash, and a note for $4,000, which had never been paid, and which he had subsequently taken hack. Held, that the statement was false and fraudulent.
    In an action to recover damages sustained by one who has been induced to sell goods to the defendants by false representations made by them, it must be shown that the defendants believed, or had reason to believe, that such statements were false at the time they were made; but proof of knowledge on his part of facts showing the statements to have been false cannot he overcome by his testifying that he believed the statements to'be true.
    Appeal from a judgment in favor of the defendants, entered upon the trial of this action by the court without a jury.
    The action was brought to recover $10,000 for goods sold and delivered upon a credit, alleged to have been obtained by the false and fraudulent representations of the defendants as to their responsibility.
    The defendants were members of a firm known as Ainsworth, Tompkins & Perry. In December, 1873, the defendants applied to the plaintiff to sell the firm, on its credit, a large amount of goods. To obtain such credit the three defendants made, signed and delivered to the plaintiff a written statement, having previously made the representations orally.
    In this writing they stated to the plaintiff, among other things, that Ainsworth was worth $100,000 in real estate and $30,000 in personal property; that Tompkins was worth $20,000, all of which he had put into the business; that the entire property known as the United States hotel was owned by them; that the estimated cost of the hotel and furniture was $800,000; that a trust mortgage had been given for $600,000, and bonds issued to that amount; of which $625,000 had been sold at par. Before the delivery of the goods, the plaintiff had heard a report that the defendant Ains-worth’s property was covered up in his wife’s name. He, therefore, made inquiry of Ainsworth in regard to this report. Ains-worth replied that the only property his wife had in the world was the little house she lived in, on Matilda street.
    The plaintiff relied on these statements, and sold and delivered the firm goods of the value of $18,264.31, on their credit, taking their notes therefor, with some of the mortgage bonds as collateral.
    The defendants are now all insolvent, and a large part of that debt is unpaid to the plaintiff.

      As a matter of fact, fount] by the learned justice who tried the case, at the time of signing the statement $150,000 of the bonds had been paid out by the defendants, in consideration of the hotel property. The defendants had not owned the hotel property until purchased with said bonds. Including these $150,000, subscriptions for $505,000 of these bonds had been obtained; $20,000 of the bonds were held by banks as collateral to discounts for said firm ; and the bonds held by the banks and those turned out in payment for the land, were included in the $525,000 of the statement.
    In regard to a statement, that Tompkins had put $20,000 into the business, it appears, without contradiction, that he had put in $16,000, and had delivered the firm a note of $4,000, which they pledged as collateral, with other securities to a loan. The firm never received any thing on the note, and Tompkins afterwards took it back from them.
    In regard to a statement that the only property which Ains-worth’s wife had was the little house on Matilda street, it was found by the learned justice that she had at that time valid and subsisting causes of action against Ainsworth, for money loaned by her, and goods and real estate sold by her to him, amounting to $65,000, for which he was then indebted to her. One of the causes of action was the consideration of real estate which she had sold him, and for which he had agreed to give her a mortgage. This he had not done. The existence, nature and amount of this indebtedness was known to Ainsworth, at the time of his making the statement to the plaintiff that all which his wife owned was the little house on Matilda street.
    As to the statement relative to Ainsworth’s property, the learned justice finds that these statements were true, regard being had to the value of the real estate, as in good faith estimated by Ains-worth and other well informed men. Taking Ainsworth’s testimony on the trial and his own estimates then given, the aggregate of his real estate seems, at the time of signing the paper to have been about $210,000; the incumbrances thereon about $71,000; the aggregate of his personal property, including $20,000 put in the hotel, to have been about $68,000 and the aggregate of his debts, other than the incumbrances on real estate, and including his liabilities as one of the firm, to have been about $130,000.

      North, Ward c& Wagstaff, for the appellant.

      Pond & French, for the respondent Ainsworth.

      Putnam <& Fusfris, for the respondent Tompkins.

      L. B. Pike, for the respondent Perry.
   LeakNbd, P. J.:

The general finding that the representations and statements made in and accompanying the written paper were substantially true is qualified by the specific findings. Passing over the real estate, on account of the fictitious value often given to that kind of property, the fact is found that the defendants stated that $525,000 bonds had been sold at par. This was not true. Twenty thousand dollars of this amount were held as collateral by banks; $150,000 of this amount had been turned out in payment for the real estate. And the amount also included bonds which had been subscribed for by parties who had refused to take them. In these' three respects, therefore, this part of the statement is found to be false.

The learned justice finds that in reply to an inquiry as to the truth of a report that Ainsworth’s property was covered up in his wife’s name, he said that- the only property his wife had in the world was the little house she lived in on Matilda street. This statement was not limited to real estate. At that time, as the learned justice finds, she held valid causes of action against Ains-worth amounting to $65,000, for which he was indebted to her. His statement, therefore, was false, and it was material. The inquiry showed a suspicion that property which he was using as his own really belonged to his wife. And substantially the suspicion was correct. A debt to his wife of $65,000, of which $25,000 was equitably a lien on real estate, would be as dangerous to his credit, if known, as if he had already secured her for that amount; as he afterwards did. The statement, therefore, that she owned nothing but a little house, when he knew that she owned a large claim against him, was untrue and deceitful.

I think that the finding of fact that Tompkins put $20,000 into the business was incorrect. The stating of such a sum without qualification fairly means that. amount in cash. In fact, $4,000 was a note used by the firm only as collateral; not paid, and finally taken back by him.

The learned justice, in finding that the statements in the written paper were substantially true, seems to have included the allegation that Ainsworth was worth at least $30,000 in personal property. According to the testimony, and as claimed' by the defendants’ counsel on the argument, his personal property did not exceed $50,500. If we add to that the investment in the hotel property $20,000, we have $70,500. The debts to his wife are proved to be $60,000; other debts $2,500, and the debt owing by the firm $60,000. This is exclusive of his debts secured by mortgage. The statement that he was worth $30,000 in personal property cannot then have been true, on his own showing.

None of the statements, it is to be noticed, are expressions of opinion founded on information derived from others. They are statements of matters within the defendants’ personal knowledge. (Hubbell v. Meigs, 50 N. Y., 480-489.)

Nor is this a case where the defendants are charged with making untrue representations in regard to credit of another person ; as in cases of Meyer v. Amidon (45 N. Y., 169); Marsh v. Father (40 id., 562). The representations were made in order to obtain goods for themselves. Their liability, as has been several times held, must depend on proof that they believed, or had reason to believe, that the statements were false at the time, and, for that reason, that they were fraudulently made.” (Oberlander v. Spiess, 45 N. Y., 178; Wakeman v. Dailey, 51 id., 35.)

In this case, as to the written statement and the accompanying representations, the defendants have severally testified that they believed them to be true, and the learned justice has so found. But when the facts which show a statement to be false are proved to have been known to the party making the statement at the time when he made it, it would be strange if he could escape liability by testifying that at the time of making the statement he believed that to be true which he knew to be false.

These defendants knew that $525,000 of bonds had not been sold for par, for they knew all the facts in regard to the bonds. And they do not testify that they believed that the words “sold for par ” meant “ loaned as collateral to a bank ” or subscribed for and not taken,” or paid out in purchase of land.”

The same may be said of the other untrue statements contained in the writing.

Again, as to the statement by Ainsworth that the little house was the only property his wife had in the world, there is no evidence that he believed this, and there is positive evidence that he knew it to be untrue. This case then comes within the decisions above cited. The defendants had reason to believe that their representations were false. They actually knew facts which were inconsistent with the truth of these representations. That the representations gave rise to the contracting of the other party there is no doubt.

It may be that the defendants intended to pay for the goods. That intention does not relieve them from the charge of obtaining credit by deceit and fraudulent statements.

The plaintiff was not willing to trust their intention. Hé wished to know the facts of their pecuniary condition, that he might judge for himself whether their intention would be fulfilled. Instead of stating the facts, they stated what they knew was not true and they did this to obtain the plaintiff’s goods on credit.

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

Present — LeaeNed, P. J., and BoabdmaN, J. BooKes, J., not acting.

Judgment reversed and new trial granted, costs to abide event.


source: Caselaw Access Project

author: Per Guriam:

license: Public Domain

text:
    MICHAEL McDERMOTT v. MICHAEL HENNESY and others. THE SAME v. THE SAME.

      Su/rplus moneys — application for distribution of— Costs.

    Upon an application for the distribution of the surplu's moneys arising upon a sale under a foreclosure of a mortgage, no costs can be allowed except those particularly specified in the Code, viz., motion fees and the fees of the referee.
    The hearing before the referee is not a trial, and no extra allowance can be made.
    Ahpeai. from an order directing tbe distribution of tbe surplus moneys, arising under a sale bad in pursuance of tbe judgment entered in tbis action.
    Tbe defendants, Catherine Mallery and John Ii. Gleason, were junior mortgagees. After tbe payment of tbe costs of tbe action there remained a surplus of $1,012.63. Hpon the application of tbe defendant Catherine Mallery, an order was made referring it to a referee to ascertain and report as to tbe priorities of tbe several liens upon such surplus, and as to who were entitled to receive the same. After the filing and report of tbe referee tbe defendant Mallery moved for an allowance for costs for tbe proceedings had before him, and an order was made at tbe Special Term directing tbe payment to her out of such surplus, of tbe sum of $150. From tbe order granting this allowance tbis appeal was taken.

      Peary & Martim, for the defendant A. Gleason, appellant.
    Tbe order is appealable. {People v. PT. IT. C. P. P. Co., 29 N. Y., 418; Ennis v. Purcell, 2 Thompson & Cook, 538; Sluyter v. Smith, 2 Bosw., 673; Wilkinson v. Tiffcmy, 4 Abb. Pr., 98.) Tbe court exceeded its power in granting tbe order appealed from. (Chap. 270 of 1854; Elwell v. RoVbins, 43 How. Pr., 108.)

      T. McManus, for tbe respondent Gleason.
    This is a proceeding in equity, and the costs are in tbe discretion of tbe court. (Code, § 306; Taylor v. Pool, 43 N. Y., 628; Piper v. Poppenheusen, 43 id., 68 ; Southwick v. Southwick, 49 id., 511; Krekeler v. Rit-ter, 62 id., 375.)
   Per Guriam:

Without deciding whether this application should be called a special proceeding or a proceeding in the foreclosure action, we are satisfied that in either case the views expressed by Judge Balcom, in Elwell v. Robbins (43 How., 108), as to costs, are correct. There is no right to grant an extra allowance. (See also, Rens. and Sara. R. R. Co. v. Davis, 55 N. Y., 145.) The only costs which can be allowed are those particularly specified in the Code, viz., motion fees and referee’s fees. The hearing before the referee, is not a trial.

The only costs, therefore, which can be allowed are ten dollars costs of the motion to confirm the referee’s report and his fees, and ten dollars costs of order appointing referee, if that was allowed in that order. The order appealed from must be modified accordingly.

The question involved is, perhaps, new, and no costs of the appeal are allowed to either party.

Present — LeabNEd, P. J., Booees and BoaedmaN, JJ.

Orders reversed and order granted to be settled by LeaeNed, P. J., as per his memorandum. No costs of appeal.


author: Per Curiam:

text:
    THE PEOPLE ex rel. GEORGE M. THOMPSON, Appellant, v. THE BOARD OF SUPERVISORS OF THE COUNTY OF HAMILTON, Respondent.

      Hamilton county — publication of notices in — Ohap. 662 i/1870 — Power of comptroller to designate newspapers to publish notices of redemption.

    Chapter 662 of 1870, providing that all legal notices and advertisements, required hy law to he published in the county of Hamilton, shall he published in such newspaper or newspapers as shall be designated by the board of supervisors, was not intended to alter the nurnben' of papers in which notices should be published, but only to enable the board of supervisors to designate newspapers out of that county, until one should be published therein.
    The power conferred upon the comlproller, by chapter 427 of 1856, in case no newspapers were designated by the board of supervisors to print the session laws, to designate newspapers in which to publish notices for the redemption of lands sold for non-payment of taxes, is not taken away by chapter 662 of 1870, and if only one newspaper is designated under the latter act the comp-tioller may select an additional paper in which such notices of redemption are to he published.
    Nor was his power so to do affected by the passage of chapter 315 of 1870, providing that if there be only one paper printed in the county the session laws shall be published in that paper.
    Appeal by the relator from an order of Judge LaNDON, at Special Term, denying a motion for a peremptory mandamus requiring the defendants to reconvene and audit and allow to the relator his account for $686.25.
    His account was for publishing, pursuant to the direction of the comptroller, in his newspaper, the Hamilton County Journal, printed and published in Johnstown, in the county of Fulton, a notice and list of lands sold for taxes in the year 1871, and remaining unredeemed in Hamilton county.
    From the affidavits on which the motion was heard, it appeared that at the annual meeting of the board of supervisors of Hamilton county, the Hamilton County Democrat, a paper printed in Johnstown, Fulton county, and circulated in Hamilton county, was duly designated by said board as the newspaper in which should be published, during the year 1873, the session laws of this State and all legal notices and advertisements required by the laws of this State, or any local or special law, to be published in the county of Hamilton.
    That at said meeting the relator requested said board to designate the said Hamilton County Journal for the same purpose.
    That said board declined to do so, on the ground that said board was not required by law to designate two newspapers for that purpose.
    That on the 28th of February, 1873, the comptroller selected and requested the said Hamilton County Journal to publish said notices, and the same were afterward published in said paper seven weeks ending on the 11th day of April, 1873.
    That relator presented his bill therefor to said board to be audited at its annual session in 1873 and in 1874, and that said board refused to audit and allow the same.

      R. H. Rosa, for the relator.

      J. M. Garroll, for the respondent.
   Per Curiam:

Chapter 662 Session Laws 1870, enacts that “ all legal notices and advertisements, required by the laws of this State, or by any special law, to be published in the said county of Hamilton, shall be published in sueh newspaper or newspapers as shall be designated by the board of supervisors.”

The question is whether the words in such newspaper or newspapers ” are intended to change the general laws as to the number of newspapers in which notices are to be published, or whether they only express the idea that such notices, as are by general laws to be published in one newspaper, are not by this act required to be published in more than one. The latter seems to be the best construction of the act. It was not passed for the purpose of changing the general system as to the number of papers in which notices should be published. Its object was only to enable the supervisors to designate newspapers out of that county, until a newspaper should be published therein. This is in analogy to the Laws 1845, chapter 280.

Then we have chapter 427 of Laws of 1855. Section 61 requires the notices in question to be published in the newspapers designated to publish the Session Laws, and requires the boards of supervisors to audit and pay the expenses. Section 62 enacts that, if no newspapers shall have been thus designated, the comptroller shall select two newspapers in the county ; if there are not two in the county, then he is to select two which he believes to be most generally circulated.

Thus, as the supervisors had designated only one newspaper, and as the general law required publication in two, the comptroller rightfully selected another.

This view is strengthened by the fact that chapter 690, Laws of 1866, in certain cases, when one of the papers designated by that law refused to publish, did permit a publication in the other paper only. The repeal of that act by chapter 662, Laws of 1870, is an indication that no such exception to the general laws in respect to publication prevails any longer.

It is urged that section 62, of chapter 427, Laws of 1855, does not require the supervisors to pay the expense of publication in newspapers selected by the comptroller.

But this section must be read in connection with section 61. The obligation to pay the expense of such publication is not to be escaped by the neglect to designate newspapers. It is intended that this expense should be borne by each county; and none the less because the newspapers are selected by the comptroller on account of the failure of the supervisors to act.

Chapter 215, of the Laws of 1870, provides for the mode of selecting two papers to publish the Session Laws in the. several counties. And it enacts that, if there be only one paper printed in the county, the laws shall be published in that paper. But there is no reason to understand that this clause takes from' the comptroller the general duty imposed by section 62, above mentioned, of publishing the tax notices in two newspapers for each county. And therefore that act does not affect the present case.

We think, for these reasons, that the order denying mandamus should be reversed, with ten dollars costs and printing, and mandamus granted, with ten dollars costs.

Present — LearNed, P. J., Booxes and Boardman, JJ.

Order reversed, with ten dollars costs and printing, and order for mandamus granted, with ten dollars costs.


author: Per Gwriam:

text:
    THOMAS HAYES, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Highway — Bridge—constructed by railroad compcmy ovei' a crossing — approadies to — maintenance of, by railroad compcmy.

    Where permission is granted, by the commissioners nf highways, to a railroad company “to construct and maintain a bridge over a crossing,” the acceptance thereof by the company and the construction of a bridge thereunder imposes upon it the duty of maintaining the same in good repair.
    The approaches to the bridge, which are necessary to connect the same with the highway, are a part thereof, and the same duty is imposed upon the company as to their repair and maintenance, as exists in regard to the bridge itself.
    Such duty exists as well toward the surface of such approaches as toward the foundation and substructure thereof.

      Appeal from a judgment entered in the Albany County Court upon a verdict in favor of the plaintiff.
    The action was for injuries received by the plaintiff from being thrown from his wagon, on the north approach of the bridge crossing the defendant’s tracks at West Albany. The complaint alleged, and it was proved, that the roadway on this approach was out of order, and this was claimed to have been the cause of the accident.
    The defendant denied that it was under any obligation to maintain in repair the road where the accident happened, and alleged that it was part of the highway of the town of Watervliet, and its repair under the exclusive control of the commissioners of highways.
    It appeared that the plaintiff was a butcher, and in the habit daily of crossing the bridge built by the defendant at West Albany. That in the dirt road running up to the bridge at the north end, were two holes or gullies, and that the plaintiff’s mare stumbling in these, so shook up the wagon that the plaintiff, standing up in it, was thrown out and injured.
    For many years previous to the building of the bridge, the highway crossed a large number of the defendant’s tracks on a level with them upon the usual planking. The defendant, in the year 18Y2, obtained a written permission from the commissioners of highways to build a bridge in the following form :
    “At a meeting of the commissioners of highways of the town of Watervliet, held at the town clerk’s office, in the village of West Troy, on Saturday, the 6th day of April, 18Y2, the following resolution was adopted:
    “Resolved, That permission be and the same is hereby given to the New York Central and Hudson Fiver Railroad to construct and maintain a bridge over the crossing at West Albany.
    “ O. D. MILLER,
    “W.M. CURRAN,

      “ Commissioners of Highways.”

    The bridge was accordingly constructed and maintained by the defendant. From the necessary elevation given to it, that part of the highway which approached the-crossing on the north side, on a level, was sloped up to reach the end of the bridge. It was this portion of the road which was out of repair.

      Samuel Hand, for the appellant.
    The fact that the defendant built the bridge under the written consent did not bind the defendant to keep its approaches in repair for all time. But even if its terms were obligatory on it, those terms do not cover any thing but the construction and maintenance of the bridge itself. By the construction of a bridge over the tracks the defendants assumed to maintain that part over the track; i. e., the bridge and nothing more. {Hew Haven v. H. Y. and H. H. R. R. Co., 39 Conn., 128,132 ; approved, 42 id., 186.) Where the duty of maintaining the road near the bridge is to be covered, the words “ abutments and approaches are always expressly used.” (See Connecticut Statute of 1857, cited in above case, at page 131; English Statute, cited in H. Stafford R. R. Co. v. Dale, 8 El. & Bl., page 841.) Whatever may have been the obligations of the company to the highway commissioners, it is certainly not liable to the plaintiff. The highway commissioners are primarily liable to citizens for defects in the highway {Hover v. Barkhoof \ 44 N. Y.) and the defendant is not. Neither is a party, not primarily liable to repair, liable by virtue of its contract, to any body but the party with whom it contracts. {Tol-lit v. Sherstone, 5 M. & W.,- 283; Winterbottom v. Wright, 10 id., 112.)

      Parker dé Countryman, for the respondent.
    The company was bound to “maintain” whatever it was necessary to “construct” in order to “bridge” the crossing. The abutments and lateral embankments were essential to the “ construction ” of the bridge, and were built accordingly in connection with, and as a part of the bridge; and they are equally essential to “ maintain ” it as a bridge or a place for crossing over the railroad. {Sussex v. Shrader, 18 N. J. [3 Harr.], 108, 112, 113; White v. Quiney, 97 Mass., 430, 432, 433; Titcomb v. Fiiehburgh R. R. Co., 12 Allen, 254, 259; Watson v. Lisbon Bridge, 14 Maine, 201, 204, 205.) In assuming to “construct and maintain” the bridge, the company undertook to make and keep up a safe raised passage over the “ crossing,” in place of the previous passage on the same level with the track; and in so doing relieved the town of the burden it thus assumed, of maintaining so much of the road-way as was necessary for that purpose. {Commonwealth v. Deerfield, 6 Allen, 449, 455 ; Sussex
      v. Strader, 18 N. J. [3 Harr.], 108, 112-118; Parker v. Boston and Maine B. B. Oo., 3 Cush., 108, 116; King v. Kent, 13 East, 220; King v. Lindsay, 14 id., 317; Penn. B. B. Oo. v. Huguesne, 46 Penn. St., 223, 227.) A bridge built by a citizen or corporation, over a public highway, for his or their exclusive benefit, or even as a substitute for the original highway, when the necessity for the bridge was created by such person or party, must be kept in repair by the party building it. (Heacock v. Sherman, 14 Wend., 58, 60, 61; Dygert v. Sehenele, 23 id., 446.) Where, in crossing a highway the company has built a bridge for public use, in connection with the highway, it is bound to keep it in repair as long as the highway exists, and the corporation continues to exercise its functions. {People v. Troy cmdj B. B. B. Oo., 37 How., 427,429; People v. Oooper, 6 Hill, 516; Follett v. People, 12 N. Y., 268, 271, 273.) An abutment to a bridge, as matter of description, is a part of the bridge. {Bdr dwell v. Jamaica, 15 Term., 438; Tolland v. WU-lington, 26 Conn., 578; DaytoN, J., in Sussex v. Strader, 18 N. J. [3 Harr.], 113, 114; G-oedoN, J., in Penn v. Perry, Sup. Ct. of Penn., March 1873, 1 N. Y. Week. Dig., 280; WestoN, Ch. J., in Watson v. Lisbon Bridge, 14 Maine, 204, 205 ; 13 Coke Rep., 33 and note ; King v. York, 7 East, 588, 595 ; Begina v. Lincoln, 8 Ad. & Ellis, 65, 72.) The fact that the town authorities have made repairs on the approaches to the bridge, does not relieve the defendant of its obligation or of its liability for the defects. {Wilson v. Boston, 117 Mass., 509, 512.) The defendant was liable directly to the plaintiff for the injury he sustained, without reference to its relations to the town authorities, or the liability of the town for the same injury. {Webster v. Hudson Biver B. B. 67o.,-38 N. Y., 260; Ohapman v. New Haven B. B. Go., 19 id., 341; Biker v. Freeman, 11 Am. Law Reg, [N. S.], 693; Woburn v. Henshcm, 101 Mass., 193; Heacock v. Sherman, 14 Wend., 58.)
   Per Gwriam:

The defendants raise no question on the appeal except as to then-liability to plaintiff for defects in the road.

The bridge (as it is called) was built under a permission given to the defendants “ to construct and maintain a bridge over the crossing at "West Albany.” This permission, acted upon, implies an obligation to maintain.

In some cases where persons have constructed bridges for public use, and the public has practically accepted and used them, it has been held that the public (usually the county) was bound to maintain them. (Rex v. Kent, 2 M. & S., 513; Rex v. Oxfordshire, 4 B. & C., 194; Rex v. West Riding, 5 Bur., 2594.) In this last case however a distinction was noted of a bridge made for the private benefit of him who erected it, citing 1 Eolle’s Abridgement, 368.

In the present case the bridge, while a convenience to the public, is also an advantage to the defendants, a saving of expense, risk and interruption. The case is similar therefore to those of Rex v. Kent (13 East, 220) and Rex v. Lindsey (14 id., 317). There canal companies which had been authorized to amend and alter such bridges as might hinder navigation, and had erected bridges over fords in the highway, were held liable to keep such bridges in repair. “ When the company,” said Lord ElleNbobough, “ thought proper for their own benefit to alter the highway in the bed of the river, so that the public could no longer have the same benefit of the ford, they were bound to give another passage over the bridge and to keep it for the public.”

But the defendants insist that the approaches are no part of the bridge, and that their obligation (if any) does not extend to the approaches. The approaches, say they, are only a part of the highway on a new slope.

But the approaches are a necessary part of the bridge. Could the defendants have been permitted to erect a bridge several feet above the highway, and to construct no means of reaching it ? In obtaining permission to build the bridge, and in building it, they must have undertaken to make it accessible- — not to block up the highway with a useless structure. What they undertook to construct they should maintain in repair.

The defendants cite New Haven v. N. Y. and N. H. Railroad Co. (39 Conn., 128) to show that approaches are not part of a bridge. But the court there say that they decide the case on a section of the city charter. They admit that a bridge may in certain connections include embankments and approaches. And of bridges and their approaches over railroads they remark that they “ should, on principles of natural justice, be built and maintained by the railroad companies.” And that same court, in Burrett v. N. H. (42 Conn., 174), speaks of an embankment as a part of the bridge. (See also, Sussex v. Strader, 18 N. J., 113; Watson v. Lisbon Bridge, 14 Maine, 204.)

We think, therefore, that the defendants were bound to maintain the approaches as well as the bridge, in the strict sense of the word.

It is further suggested by the defendants that, even if they are liable to maintain the substructure of the approaches, yet that the surface of the roadway, the superstructure (so to call it) should be kept in order by the commissioners of highways; as they would have been obliged to keep it in order before the slope was raised.

In the case of North Staff. R. W. v. Dale (8 Ellis & Black., 836), a railway company having carried a road over the railway by a bridge, was held bound to keep both bridge and road and the approaches thereto in repair ; and such repair was held to include not only the structure of the bridge and the approaches, but the metaling of the road on both. It is true that the statute in that case mentioned approaches. But the case shows that the obligation to keep in repair includes the surface, or roadway, and not merely the superstructure, or support.

We think that the judgment should be affirmed, with costs.

Present — Learned, P. J., Booees, and BoardmaN, JJ.

Judgment and order affirmed, with costs.


author: LeaeNed, P. J.:

text:
    CORNELIUS VAN SCHOYCK, Respondent, v. GURDON BACKUS, Appellant.

      Services rendered by members of same family — presumption of law as to payment of— rebuttal of— statute of frauds.

    The principle that the law will not imply a promise to pay for board or services rendered by members of the same family, does not apply where it is proved that the understanding on both sides was that compensation should be made therefor.
    In the latter case the statute of frauds does not prevent a recovery.

      Appeal from a judgment in favor of tbe plaintiff, entered upon the report of a referee.
    This action was brought to recover certain moneys paid by the plaintiff under an agreement made by the defendant, by which the latter was to take a daughter of the plaintiff into his family and keep her as his own child until she became of age, for the consideration therein expressed. The arrangement having been terminated by agreement of the parties, this action was brought to recover the money paid by the plaintiff thereunder, and defendant interposed a counter-claim therein for moneys expended in the board and maintenance of the child, while she remained with him.

      Wm. Gleason, for the appellant.

      Alex. Gumming, for the respondent.
   LeaeNed, P. J.:

The referee finds that the defendant agreed to take the daughter of the plaintiff, then about seven years old, into his family and keep her as his own child, until she was of age. For this the plaintiff was to furnish the defendant a sum of money, between $700 and $800, and to allow the defendant the use of it until the daughter was of age. Then the money was to be paid to her. If she died before she became of age, the money was to belong to the defendant.

Under this arrangement the daughter resided with the defendant about two years and a-half. This arrangement was then terminated, as the referee finds.

The plaintiff did not furnish the money according to this agreement, but afterwards he did let the defendant have $300. The referee finds that the defendant did not make, .or intend to make, any charge for the maintenance of the daughter. The case, as corrected, however, contains testimony of the defendant, to the effect that he did contemplate charging for her board, if the plaintiff did not live up to the contract.

The referee finds that this contract was void by the statute of frauds, and thijt the defendant is not entitled to recover for the support of the plaintiff’s daughter, while residing with him. This was, probably, upon the ground, that the law will not imply a promise to pay for board or services rendered by members of the same family to each other. This principle, however, is inapplicable, where there is proof that the understanding, on both sides, was that compensation should be made. In other words, it is a presumption of law, liable to be rebutted by proof to the contrary.

In the case of Maltby v. Harwood (12 Barb., 473), cited by the plaintiff, the plaintiff had been, as was supposed by the parties, bound as apprentice to the defendants. The indenture proved to be invalid, and it was held that the plaintiff could not recover for his services. And the reason was, that although the indenture was void, yet the parties were living together, not on any understanding that the plaintiff was to be compensated for his services.

But when we apply that principle to this present case we find different conditions. The verbal agreement,' although void as a contract, yet showed that the intention of the parties was that the defendant should be compensated for his care of the daughter. By that agreement he was to have the use of $700 or $800, with the possibility of receiving the whole. It is plain, therefore, that he did not take the daughter upon an understanding, that like other members of a family, her services might be set off against her support. Although, then, the parties terminated the agreement, and although it was invalid under the statute, still the defendant supported the plaintiff’s daughter during the space of about two years and a-lialf. He did that on the expectation and promise of compensation. This expectation and this promise show the reason why he made no charge; that is, because the compensation was fully arranged. And they show also that both parties expected that he would be paid for the support of the daughter. He should, therefore be allowed its value. (Erben v. Lorillard, 19 N. Y., 302.) It may be said that the parties terminated the agreement, and therefore, neither can recover, but each must remain as he is. But the plaintiff seeks and is allowed, to recover what he has paid; why should not the defendant be allowed what he has expended ?

But assuming the contract to be invalid by the statute, we have then only to notice, as is stated above, that the proof rebuts the presumption, that the defendant was not to be compensated.

As the value of this support was not allowed by the learned referee, tbe judgment must be reversed and a new trial granted, costs to abide tbe event, and reference discharged.

Present — Learned, P. J., Bocees and Boardman, JJ.

Judgment reversed and new trial granted, costs to abide event; reference discharged.


author: LEARNED, P. J. :

text:
    ISAAC SPENCER, Respondent, v. CYNTHIA M. HUMISTON, Appellant.

      Mamed woman — promissory note — liable upon, to tJie extent to which its consideration was beneficial to her separate estate — change to ¡wry.

    In this action "brought upon a promissory note given by the defendant, a married woman, it appeared that the same was given to secure a debt due from her husband, and also in consideration of certain personal property then transferred to her by the creditor. Held, that the plaintiff was entitled to recover the value of the articles of personal property acquired by the defendant.
    The refusal of a request to charge what has already been charged is not error although the court neglect to give that as the reason for its refusal.
    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe verdict of a jury.
    Tbe action was brought upon a promissory note given to tbe plaintiff by tbe defendant, a married woman. In March, 1871, tbe defendant’s husband purchased seven cows of tbe plaintiff and gave a chattel mortgage thereon as security for tbe purchase-price. Tbe mortgagee took possession of tbe cows and disposed of all but three prior to November 22, 1872. On that day tbe plaintiff came to defendant’s bouse and an arrangement was made, as it was claimed by tbe plaintiff, by which tbe defendant gave her promissory note for tbe purchase-price of all tbe cows, and the three cows then left on the place were transferred to her and became her property.
    Upon the trial the plaintiff was allowed to recover the value of the three cows so transferred to the defendant.

      M. M. Waters, for the appellant.

      Bouton <& Chamrplin, for the respondent.

       Decided September term, 1876.

   LEARNED, P. J. :

The learned justice charged the jury that the note being given for the debt of the husband, was not a valid obligation.

But he stated that there was another question : that although the note was given as a promise to pay the debt which the husband had become liable for, yet if it was a part of the consideration that the defendant should take title to the cows which remained, the note was valid, so far as that part was concerned which related to the value of the cows.

That for the plaintiff to recover it was necessary that the jury should find that the note was given for these cows then on the premises.

That if she obtained title to these cows, and they went to the benefit, of her separate estate, so far she was liable.

That if there were three cows and their value was thirty dollars, and the defendant acquired title by this transaction, she became responsible in the sum of ninety dollars, which, with interest, would be $107.85.

That if there was no such agreement by which the defendant acquired title, there could be no recovery-

The jury found a verdict for $107.85. The note was for $270.

After the court had thus charged the jury, and had distinctly stated the only ground on which the plaintiff could recover, twenty-one requests to charge were presented on the part of the defendant. Among them was the following: If the note was given to pay the husband’s debt for thé cows, and not in purchase of the cows for the wife, the plaintiff cannot recover upon it. The court declined so to charge.

It does not seem to me that this was error. The court had already charged clearly that the note, being given for the debt of the husband, was not a valid obligation. And it was plain that the note was greater in amount than the value of the remaining cows, and was not, therefore, given solely in purchase of them. But the plaintiff, holding the mortgage, had practically the title to the remaining cows. And if, as part of the transaction, the defendant was to take title to these cows, she ought, to pay for them. And when we read the clear statement made by the court in its charge that the only recovery which could be had was for the value of the three cows, and that, too, only in case it was a part of the transaction that the defendant should thereby acquire title to them; and when we see that the verdict was not for the note, but only for the value of the three cows, it is impossible to think that the jury misapprehended the refusal to charge.

After a court has charged the jury, the object of requests to charge ought to be to bring the attention of the court to some point on which the party relies and which has been overlooked. There should be no attempt by numerous and slightly varying requests to lead the court into some error. It often occurs that the court, in its charge, has already stated, in its own words and in the proper connection, all the propositions which should rightfully be stated in the case. In such instances, where requests to charge are subsequently made which embody substantially the same principles, only expressed in the words of the counsel, a refusal to charge is not to be considered error. Nor does such refusal become error if the court neglects to give as a reason therefor that the same proposition has been already stated.

In this present casé there were twenty-one requests to charge. Tet the real question was only whether the court was right in authorizing a recovery for the value of the cows, in case the jury found that, as a part of the transaction, the defendant was to obtain the title to them.

The judgment should be affirmed, with costs.

Present — Leaened, P. J., Booees and BoakdmaN, JJ.

Judgment affirmed, with costs.


author: LeaRNed, P. J.:

text:
    JOSEPH J. HAGAN, Respondent, v. THE DOMESTIC SEWING MACHINE COMPANY, Appellant.

      Statute of frauds —Memorandum — what must contain.

    Where a duly authorized agent of the defendant, a sewing machine company, delivered to the paintiff on April 6, 1878) a writing extending by its terms over a period of two years, by which it agreed to pay him ‘ ‘ as full compensation for his services to be rendered ” certain sums therein mentioned, at intervals of six months, and the plaintiff thereupon expressed his assent to such agreement, and on the eighth of that month wrote a letter, in which he said, “I accept your proposition,” referring to said writing.

      Held, that there was a sufficient memorandum of the contract to take the case out of the statute of frauds.

      Semble, that if the attendant circumstances did not show what services were to he rendered hy the plaintiff, he would he hound to perform any personal services which might he required of him.
    The memorandum required hy the statute must contain all the essential terms of the contract, expressed with such a degree of certainty as to render it unnecessary to resort to parol evidence to determine the intent of the parties thereto.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    This action was brought to recover for a breach of a contract, entered into between the parties, for services to be rendered by the plaintiff to the defendant.
    On the 5th of April, 1873, one Judson, the general manager of the branch office of the defendant at Philadelphia, made and delivered to the plaintiff at that city the following writing :
    “ Philadelphia, April 5, 1873.
    “ The Domestic Sewing Machine Company, through their branch office, Philadelphia, hereby agree to pay Joseph Hagan, Esq., as full compensation for his services to be rendered as follows :

      “ Seven hundred and fifty ($750) dollars for first six months.
    “ Eight hundred ($800) dollars for second six months.
    “ Nine hundred ($900) dollars for third six months.

      “ Ten hundred ($1,000) dollars for fourth six months.

      “ Dangers of fire and flood, and all dispensations of Providence excepted.
    “DOMESTIC S. M. CO.,
    “ D. AlleN JudsoN,
    Attorney.”
    Thereupon plaintiff expressed his assent to the terms of said writing, and said he would go to his home in Lansingburgh and return as soon as possible, unless prevented by unforeseen events. Plaintiff accordingly left that day for his home, and on April 8, 1873, wrote from there a letter to said Judson, saying, “ I accept your proposition (referring to said writing of April 5, 1873), and will come on probably by the fifteenth.” And April 22, 1873, plaintiff, under said hiring, entered into the service of said company at its Philadelphia office, and continued therein until June 3, 1874, when, without fault on his part, he was discharged from such service by P. N. Bloomer, who was Judson’s successor, and then the general manager at that office, and who then knew of said writing made by Judson.
    The defendant having refused to continue the plaintiff in his employment, this action was brought to recover for the damages sustained by him up to October 22, 1874, which the referee found to be $965.

      Brownell & Lathrop, for the appellant.
    Without parol proof of the character or kind or quantity of these services, there is no note or memorandum of the agreement. It is void, for uncertainty and parol proof is excluded by the statute of frauds. (Wright v. WeeTcs, 25 N. Y., 153 ; Drnis v. Shields, 26 Wend., 241; Abeel v. Radeliffe, 13 Johns., 300; 2 Kent, 511; Glinan v. Ooole, 1 Sch. & Lef., 22; Tollman v. Franklvn, 3 .Duer, 395; Fitzmaurice v. Bayly, 3 L. T. [N. S.], 69 ; Oddie v. James, 48 N. Y., 685.)

      EseTc Oowen, for the respondent.
   LeaRNed, P. J.:

The referee correctly found that Judson had sufficient authority to make the contract. It was a part of his business to hire the employes under him, to the number of twelve or thereabouts; to pay them, and to render account of his payment to the New York office. That was sufficient as to the plaintiff.

. The defendants urge that the letter written by Judson to the plaintiff, and the plaintiffs’s reply, do not make a binding contract. First, it is said that the letter was only a proposition for a contract. But it offered to pay the plaintiff a certain sum “ for his services to be rendered.” To this he replied, among other things, “I accept your proposition.” Part of this proposition was that he should render services; and when he accepted it, he agreed to render services.

But, secondly, the defendants urge, more strongly, that the contract is void under the statute of frauds, because it does not show the subject-matter of the contract; that without proof of the nature and kind of service, there is no note of the agreement, and that parol proof is excluded.

In Wright v. Weeks (25 N. Y., 153) the written agreement was to sell land upon “terms as specified.” Parol evidence of the terms was inadmissible. Now, in that case, the very language of the written agreement showed that it was not the whole contract, and that “ the terms as specified ” were to be' ascertained elsewhere. As these were only in parol, the contract was incomplete. The rule is that the note or memorandum must contain the essential terms of the contract, expressed with such a degree of certainty that it may be understood without recourse to parol evidence to show the intent of- the parties. The contract “ must be certain in itself, or capable of being made so by a reference to something else.” (Abeel v. Radcliff, 13 Johns., 300; Parkhurst v. Van Cortland, 1 Johns. Ch., 274.) Now, in the present case, the plaintiff, agrees to render his services to the defendants for two years at a certain specified price. No allusion is made to any parol agreement as a part of the contract. If Judson’s letter had been an agreement to pay so much for such services, as had been specified in a conversation, then this case would have been analogous to the case of Wright v. Weeks.

If the plaintiff had agreed to render his services as a salesman, still it might have been said by the defendants that the services were not fully described; as, for instance, what goods he was to sell, how many hours he was to be employed, etc. The answer to such an objection would be that the surrounding circumstances (not the parol agreement or conversations of parties), are always admissible to explain the meaning of a written contract. So, in this present contract, the surrounding circumstances might be admissible to show what services he was to render. The nature of the defendant’s business, and the occupation to which the plaintiff was known to be accustomed, would be facts surrounding the contract and explaining its meaning. A reference to such facts is a different thing from a recourse to proof of another part of an agreement, resting in parol. (Dana v. Fiedler, 12 N. Y., 40.)

Suppose that the defendants, through Judson, had verbally hired the plaintiff for six months; would not such hiring have been valid, even if nothing whatever had been said of the kind of services which the plaintiff was to perform ? Admitting that, on such a hiring, where no services were specified, the plaintiff might be bound to do any thing which the defendants should require of him, still the contract would be good. And this contract is the same with that, only for a longer time. So that if the plaintiff, under this contract, was bound to perform any personal services whatever which might be required of him, still, even under that construction, the contract was sufficient.

The defendants discharged the plaintiff, and thus broke their part of the contract. Their subsequent letter of June eighth to him did not offer him employment in New York but denied their liability to retain him in their service. They did not instruct him to come to New York, and he was not bound to go there. They did not even offer to procure him other and similar employment, so as to affect the question of damages. (Howard v. Daly, 61 N. Y., 362.)

If there was any attempted parol modification of the contract at a subsequent date, by which the plaintiff’s compensation was increased, it is enough to say that he has recovered no more than the amount to which he was entitled by the original agreement.

The -judgment should be affirmed, with costs.

Present — LbaeNed, P. J., Boches and BoabdMAN, JJ.

Judgment affirmed, with costs:


text:
    WILLIAM B. GUERNSEY, Respondent, v. DELOSS M. POWERS and HENRY MEAD, Appellants.

      Secew&i' of real estate — in what cases appointed.

    In an action to recover the possession of real estate from one in possession thereof under a contract of sale, the court will not appoint a receiver thereof pendente lite.

    Appeal from an order made at Special Term appointing a receiver. In January, 1876, the plaintiff brought this action to recover the possession of real property, consisting of a dwelling-house and lot' in Norwich, New York. The defendant Deloss M. Powers is in possession under a contract of purchase from the plaintiff. The defendant Mead is a tenant to whom Powers let a portion of the premises. Upon motion by the plaintiff a receiver was appointed to receive the property described in the .complaint, on the ground that it was necessary for the preservation thereof, the affidavits of the plaintiff alleging that the defendants were allowing the taxes to accumulate, as well as the interest upon mortgages upon the land, and that both of the defendants were insolvent.
    The defendants appeal from such order.

      D. M. Powers, for the appellants.

      R. A. Stanton, for the respondent. While formerly the court had no power to appoint a receiver in an action of ejectment, it being an action at law, the Code has changed that rule and there is no doubt whatever about the jurisdiction and power of the court to grant such relief in an action of ejectment. (.Ireland v. Nichols, 37 How. Pr., 230; 4 Wait’s Sup. Ct. Pr., 220; The People v. The Mayor, eta., 10 Abb. Pr., Ill; Rogers v. Marshall, 6 Abb. [N. S.], 457; Code, § 244.)
   Per Curiam:

Section 455 of the Code declaring that the general provisions of the Revised Statutes relating to actions concerning- real property should apply to actions brought under the Code, would seem to indicate that no material change in the rights of parties to such actions was contemplated by the new practice.

By those provisions waste might be stayed by order pending the action (2 R. S. [6th ed.], m. p., 336, § 13), and after judgment the rents and profits might be recovered. (2 R. S., 310, § 36.) The plaintiff in this actiop does not claim that a receiver could have been appointed under the old practice pending the action.

The very general language of section 244 of the Code should be construed with reference to familiar and well settled doctrines of law which existed before the enactment.

We think the views stated in Thompson v. Sherrard (35 Barb., 593) are sound and should be followed. The case of Ireland v. Nichols (37 How., 222) was peculiar. Even if that case was, under the circumstances, correctly decided, it should not be followed in cases like the present. There are many evils which would arise from the practice of taking the defendant’s real estate away from him pending the action.

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

Present — Learned, P. J., Bocees and Boardman, JJ.

Order reversed with ten dollars costs and printing, and motion denied with ten dollars costs.


author: BoARDMAN, J.: LEARNED, P. J.

text:
    In the Matter of Proving the Alleged Will and Testament of CHARLES HATHAWAY, Deceased.

      Power of Supreme Court to appoint acting surrogate — Chap. 320 o/1830 — not repealed by Constitution of 1846 — Public offices'— Constitution, article 6, § 8 — County officer — Constitution, cm'tiele 10, § 2.
    Chap. 320 of 1830, authorizing the chancellor, in case no person was capable of acting as surrogate under the provisions thereof, to appoint some suitable person to act as surrogate, was not repealed by the adoption of the Constitution of 1846, but is still in force; and the power of appointment therein given to the chancellor is now vested in the Supreme Court. (Learned, P. J., dissenting.)
    The person so empowered to act as surrogate is not a public officer within the meaning of section 8 of article 6, declaring that the justices of the Supreme Court “shall not exercise any power of appointment to public office.” (Learned, P. J., dissenting.)

      Nor is Jig a county officer within the meaning of that term, as used in section 2 of article 10, which provides for the election and appointment of such officers. (Learned, P. J., dissenting.)
    Appeal by Jane Wright, a sister and heir at law of the above named deceased, from an order of the Special Term of this court, denying a motion made by her to set aside and vacate an ex parte order appointing an acting surrogate in this proceeding.
    The testator was an inhabitant of the village of Delhi, Delaware county, and died in January, 1876, the owner of an estate valued at $75,000 or upward, and leaving an alleged last will and testament, in which Rebecca Y. Downe, Daniel T. Arbuekle and Horatio N. Buckley were named as executrix and executors.
    The county judge and surrogate of Delaware county was disqualified from acting in the matter of the probate of the alleged will, by reason of his relationship by affinity to the executor Buckley, and the district attorney of the county, Daniel T. Arbuekle, was one of the executors, and consequently debarred from acting in his stead.
    On a petition by the executrix and executors showing these facts, this court, at an adjourned Special Term held by Mr. Justice Murray, February 16, 1876, made the order appealed from ex parte, whereby Harvey F. Davidson,' of Delhi, N. Y., was appointed to act as surrogate in the matter so long as the disability of the surrogate should continue, and a commission directed to be issued to him accordingly.
    This order was made under the provisions of chapter 320 of the Laws of 1830, which, after enacting among other things, that when the surrogate should be precluded from acting in any case by reason of interest, relationship, etc., the first judge of the county should be vested with all the powers and authority of the surrogate in such case, continues as follows:

      “ Seo. 21. The same causes which preclude the surrogate from acting shall apply equally to the first judge; and when both shall be thus incapable of acting, and when the office of both shall be vacant, the district attorney of the county, if not incapacitated by the same causes, shall have the same powers as are given by the preceding sections to the first judge, and shall proceed in the same manner. When there shall be no person capable of acting under the provisions of this title, the chancellor, upon- petition, shall issue a commission to some suitable person, empowering him to act as surrogate in the premises.”
    No notice of the application for the order was given to the appellant or to any of the other heirs at law or next of bin, nor did she or any of them have any knowledge of the appointment until long after it was made.
    Citations to appear before the acting surrogate upon the application for the probate of the will were duly issued and served upon the heirs at law and next of bin, including the appellant. Upon the return day she appeared by her attorney, and after several adjournments granted upon her application, a bearing was finally, had on the 24th day of April, 1876, and an order made admitting the will to probate. Subsequently letters were duly issued to the executrix and executors, all of whom duly qualified. On the 27th day of June, 1876, this motion was made to set aside the order appointing the special surrogate, on the ground that the act of 1830 had been repealed by the adoption of the Constitution of 1846.

      D. D. Hiles, for the appellant.

      Da/ois & Arbuekle, for the executors, respondents.
   BoARDMAN, J.:

Prior to the Constitution of 1846 the act of 1830 (chapter 320, § 21; 2 R. S. [Edm. ed.], 80, § 54) was in full force. It was passed to prevent a failure of justice, and in the events therein contemplated was indispensable to the settlement of estates and determination of the rights of the parties interested therein. Indeed without the aid of this statute the rights of the parties interested would have been in abeyance, and no one could lawfully take possession or care of the property. It is now to be decided whether a law having such a benign purpose has been abrogated by the Constitiir tion of 1846, or impliedly repealed by any statute since that date.

I do not think the commissioner provided for by the act of 1830 is in any sense a public officer; his position is very like that of a referee to try a cause, a commissioner to take an inquisition or testimony. Such persons are not public officers ; they are rather officers of the court, appointed for a specific purpose in a single case or matter, and having no power outside of the subject committed to them. Such commissioners do not therefore come within the second section of article 10 of the Constitution. Hence section 8, article 6 of the Constitution does not refer to such appointments when it says the judges “ shall not exercise any power of appointment to public ofSee.” The provision of section 15, article 6, permitting the legislature to provide for the election of local officers to discharge the duty of surrogates has no application to this case, since Delaware county has never applied for the passage of the law. What “might have been,” therefore, does not affect what is. There is nothing in the amendments of the Constitution since 1846 which affects the question under consideration. If, then, there is nothing in the act of 1880 repugnant to the Constitution of 1846, so far as this appointment is concerned, it is not abrogated by that Constitution. (Art. 1, § 17, Constitution of L846.) In my opinion- there is no inconsistency between the statute and the Constitution.

By the Constitution (art. 1, § 17) and the judiciary acts (Laws of 1847, chaps. 280, 470) the powers and duties of the chancellor were devolved upon the Supreme Court and its justices. The power in question could therefore be properly exercised by a justice of the Supreme Court at Special Term, unless the act of 1830 touching this appointment has since been repealed by implication. It is conceded it has not been repealed by direct terms. The judiciary act (§ 32 of chap. 470) simply changes the official titles contained in the act of 1830 to correspond with those given by the Constitution. It does not profess to repeal the act of 1830, nor does it have such effect except in the respects in which it is inconsistent therewith. The same is true of the act of 1871 (chap. 859, § 3). Neither of these acts, directly or by implication, repeal the clause of the act of 1830 authorizing a commissioner to be appointed when there is no pfficer in existence who can take the probate of a will. Repeal by implication is not favored; it can never occur except where the inconsistency and repugnancy of the two acts are plain and unavoidable. (Wallace v. Bassett, 41 Barb., 92; Potter’s Dwarris on Stat., 155, etc., and note 5, and cases cited; Daviess v. Fairbairn, 3 How. [U. S.], 636, 644; Goldson v. Buck, 15 East, 372.)

The authorities do not, in my judgment, justify the conclusion that the acts of 1847 or 1871 were intended to, or by reason of inconsistency did in fact, repeal the power given by the act of 1830 to appoint a commissioner to take the probate of a will when no other mode existed under the law whereby it could be done.

The various treatises on practice and revisions of the statutes since 1847 contain the law of 1830 in respect to appointment of commissioner as still in force. (2 R. S., 81, § 54 [Edm. ed.]; 3 id., 167, § 71 [5th ed.] ; 3 id., 87, § 86 [6th ed.]; Redf. Sur. Pr., p. 4; Dayton’s Sur. P., 46; 3 Fay’s Dig., 827.)

It is true this is not very conclusive evidence that the statute of 1830 was not repealed; but it presents the ideas of the various revisers and elementary writers upon that subject. As these treatises and revisions of the statutes have been the reliance of practitioners as ycell as officers, it is fair to assume that commissioners have been appointed for nearly twenty years past, as in this case, whenever the emergency arose. TJnder the authority thus given estates have been administered and settled, real estate sold and conveyed and conflicting rights determined. If it shall now be held that such action was a nullity, that the law authorizing it has been repealed, and that courts and Officers were all acting without jurisdiction, and hence were trespassers in all administrative acts, the consequences may he more serious than can now be apprehended. Besides it leaves this estate, of considerable magnitude, and possibly others similarly situated, to await the slow and doubtful process of legislation, before any person can be legally authorized to take possession and care of it. The death, resignation or expiration of term of the present county judge or district attorney, and the succession of a competent officer instead would relieve the embarrassment, but such contingency is too uncertain to be of value. Under such a state of facts courts should be slow to disregard so harmless and beneficent a statute, unless compelled to believe it no longer exists.

If the court had jurisdiction there is no difficulty in the matter of notice. The-appellant was guilty of gross laches in submitting to such objectionable order for more than four months after it was granted. During this time she attended the probate of the will and permitted executors to be appointed and to assume their duties. By reason of such neglect and the consequent complications, she ought not now to be heard to object.to the want of notice.

This view is strengthened in that no reason is assigned against Mr. Davidson as a commissioner, nor is a suspicion of unfairness or impropriety suggested against him. The objection is therefore purely technical, and the only consequences of respecting it would be mischievous and unprofitable.

For these reasons I think the order appealed from should be affirmed, with costs.

JBooKes, J., concurs.

LEARNED, P. J.

(dissenting):

The office of surrogate existed before the Constitution of 1821, but is not mentioned therein. The surrogate, therefore, was to be elected or appointed, as might by law be directed. . (Const. 1821, art. 4, § 15.) By the Revised Statutes, following the statute of 1823 (chap. 70, § 7), surrogates were to be appointed by the governor, with the consent of the senate. (1 R. S. [2d' ed.], m. p., 107 § 15 [9].) It was also provided that, if the surrogate were disqualified, the first judge of the county should “be vested with all the powers and authority of the surrogate in relation to the proof of any such will,” etc. (2 R. S. [2d ed.], m. p., 79, §49.) In such case he was to possess all the powers and authority of a surrogate, and his orders and decrees in like manner were subject to appeal. (§ 51.) If both the surrogate and first judge were disqualified, and when their offices were vacant, the district attorney was to have the same powers as by the previous sections were given to the first judge. And when there was no person “capable of acting under the provisions of this title, the chancellor, upon petition, shall issue a commission to some suitable person empowering him to act as surrogate in the premises.” (§ 54, as amended by Session Laws 1830, chap. 320, § 20.) Thus this appointing power applied both to a case of disqualification and to a vacancy in the office of surrogate, first judge and district attorney. While the law stood thus the Constitution of 1846 was adopted. This abolished the office of chancellor, giving law and equity jurisdiction to the new Supreme Court created thereby. (Art. 14, § 8; art. 6, § 3.) It abolished the office of judge of the County Court and of surrogate— except as therein otherwise provided. (Art. 14, § 8.)

It directed the election of a county judge in each county, except New York, and declared that he should perform the duties of surrogate. It declared that, in certain counties, the legislature might provide for the election of a separate officer to perform the duties of surrogate. (Art. 6, § 14.)

It further declared that, on the-application of supervisors, the legislature might provide for the election of local officers, not to exceed two in any county, “to discharge the duties of county judge and of surrogate, in cases of their inability or of a vacancy.” (Art. 6 § 15.) . .

It declared that all county officers * * * should be elected by the electors of the counties, or appointed by the supervisor or other county authorities; that all other officers, not provided for- thereby, should be elected or appointed as the legislature should direct. (Art. 10, § 2.)

It declared that the justices of the Supreme Court should not exercise any power of appointment to public office. (Art. 6, § 8.)

The question now is, whether the power of appointing an acting surrogate, under the statute of 1830, survived these changes.

I think it did not.

First. The only power given to the Supreme Court is “ general jurisdiction in law and equity.” There is nothing in the Constitution which retains to that court any power which belonged to the chancellor, unless it be embraced in the description, “jurisdiction in equity.”' It is plain that the appointment of an officer to hold a Surrogate’s Court was not an exercise of equity jurisdiction. The person appointed was not, like a master in chancery, an officer of the Court of Chancery. He was, pro tempore, a surrogate 'holding an independent court. In. appointing such a person the chancellor exercised not a judicial, but an administrative function — the same which the governor exercised when he appointed the permanent surrogate. The office of chancellor, with its functions, was abolished ; while equity jurisdiction was given to the Supreme Court: The judiciary act (Session Laws 1847, chap. 280, § 16), giving to the justices of the Supreme Court the powers and jurisdiction of the chancellor and other officers, qualified the language by adding, “ so far as consistent with the Constitution and provisions of this act.” And the amendatory act of the same year (chap. 470, § 32) made provision for the case of disability of a surrogate.

Second. Section 8 of article 6 absolutely prohibited justices of the Supreme Court from exercising any power of appointment to public office. This provision seems to apply to this very power, for it can hardly be said that the office of an acting surrogate, especially when the appointment is to fill a vaoaney, is not a public office.

It is true, that article 6, as adopted in 1869, section 10, which corresponds with section 8 in the Constitution of 1846, omits this prohibition. And it is possible, therefore, that in some cases, a power of appointment may now be given by the legislature to the justices of the Supreme Court. But since the adoption of that article no legislation on this point has been had. And a law which was practically annulled by the Constitution of 1846, and had remained so for more than twenty years, is not to become in •force again by the removal of this restriction. No new power is conferred thereby on the Supreme Court.

When the legislature, in the judiciary act, gave to the justices of the Supreme Court the power and jurisdiction of the chancellor, not inconsistent with the Constitution, they did not give to those justices this power of appointment, because this power was inconsistent with the Constitution. The power, therefore, was not then given to the Supreme Court, and it has never been given since. Indeed as will be shown farther on, every enactment of the legislature on this subject is inconsistent with such an appointing power.

Third. The whole scope of the Constitution of 1846 is inconsistent with this power. Article 6, as adopted in 1869, does not differ in the points important to this case from the original article. This Constitution generally took away all appointing power and made officers, judicial and other, elective. When such is the general intent of that instrument it needs strong reasons to show that an appointing power previously existing was retained.

1. The Constitution required the election of surrogates. (Art. 6, §14, or § 15 of the amended act.) It further required that county officers, whose election or appointment was not thereby provided for, should be elected by electors, or appointed by county authorities. (Art. 10, § 2.) That such acting surrogate is an officer seems indisputable, for he is to exercise a judicial function. That he is a cov/nty officer is, I think, plain. In harmony with this view, such an acting surrogate has been held entitled to the same salary with the surrogate, payable from the same source. (In re Wolford, Albany Special Term, 1876.)

He takes the place of one who is undoubtedly a county officer, and his jurisdiction is confined to the county limits. (See In re Carpenter, 7 Barb., 30.) For it is important to notice that the statute,- under which this power is claimed (2 R. S. [2d ed.], m. p., 80, § 54), applies not merely to a temporary disqualification of the surrogate, first judge and district attorney, but includes the ease of a vacancy in those three offices: “ When there shall be no person capable of acting under the provisions of this title, the chancellor,” etc. And there could be no. doubt that in ease of a vacancy of those three officers, the person appointed by the chancellor would hold a county office. That the Supreme Court should possess the power of appointing to a county office can hardly be claimed.

2. The Constitution authorizes, in case of disability or vacancy in the office of county judge and surrogate, the election of not more than two “ local officers ” in each county. (Art. 6, §§ 15,16.)

This is a plain indication that in no other way were disabilities or a vacancy to be provided for. And furthermore, this clause is inconsistent with the section (54) above cited. For suppose that, in any county, the legislature has authorized and the people have elected two “ local officers.” Now if section 54 be still in force, then notwithstanding such election of “ local officers,” the Supreme Court is to appoint, whenever the surrogate, first judge (county judge) and district attorney are disqualified. Because they are the only persons capable of acting “ under the provisions of that title.” This unreasonable result shows that section 54 cannot be held to have been operative after the Constitution of 1846 went into effect.

3. The legislature by their acts contemporaneous and subsequent, have given a construction to the Constitution inconsistent with the supposition that the legislature recognized this power of appointment as in force. This construction “ lias almost the force of a judicial exposition.” (People v. Dayton, 55 N. Y., 367.) Thus, after the adoption of the Constitution, in the amendment of the judiciary act (Sess. Laws, 1847, chap. 470, § 32), the legislature authorized the county judge and the district attorney to act in case of disqualification of the surrogate, and the want of any “ local officer.” This was substantially a re-enactment of a part of the former provisions, which are above mentioned. But they omitted any provision for the appointment of an acting surrogate. Now if the former statute was still in force there was no need of this re-enactment ; and, at any rate, the omission of this appointing power in an act designed to provide for such contingencies, shows that it is not intended to be in force.

So again, after the passage of the new article 6 of the Constitution, some further legislation as to the judiciary became necessary. Accordingly in the Session Laws of Í871 (chap. 859, § 8), provision is again made for the same case of disqualification of the surrogate and of the county judge. The district attorney is authorized to act, and his compensation is provided for. But no mention is made of any right to appoint an acting surrogate. (See Holmes v. Smith, 10 S. C. N. Y. [3 Hun], 413.)

We have, then, two enactments by the legislature of a law to provide judicial officers who shall act, in case the surrogate is disqualified, or in case his office is vacant. These enactments are on the same subject with the sections above referred to (2 R. S. [2d ed.], m. p., 79, §§ 49 to 54), and are analogous to those sections. In fact there is no difference, except that the “local officer” is mentioned and that the county judge is named instead of the first judge of the county. In neither of these re-enactments (for such they are) is any authority given to the Supreme Court, or to any one, to appoint an acting surrogate. The inference seems to me irresistible that the legislature intended that no such authority should exist.

And this inference is the more forcible when we consider that article 6, adopted in 1869, omitted (as before remarked) the prohibition on justices of the Supreme Court from exercising any appointing power. If, then, the legislature had desired to return to the old system, they could have easily modified chapter 859 of 1871, accordingly ; that is, provided such appointment of a county officer be allowed by the other parts of the Constitution.

I do not think that a person thus appointed is like a referee. A referee is merely an officer of the court in which he is appointed. The person commissioned by the chancellor was not an officer of the Court of Chancery. He was the judge of another court, to act as surrogate, with jurisdiction of cases not belonging to equity. (Colton v. Ross, 2 Paige, 396.)

Por these reasons, I think the order should be reversed.

Present — Learned, P. J., DoaRdmaN and Bocees, JJ.

Order affirmed, with ten dollars costs and printing.