author: Ward, J.

text:
    Baxter Simmons et al., Pl’ffs, v. Myron L. Burrell, as Executor, etc., et al., Def’ts.

      (Supreme Court, Niagara Special Term,

      Filed May 4, 1894.)

    1. Wills—Construction—Equity.
    Equity has jurisdiction of an action to construe a will, where it is necessary to pass on the validity and effect of a trust contained therein.
    Same—Bequest—Unascertained—Beneficiaries.
    Prior to the passage of chap. 701 of 1893, a bequest for the support of charity was void in the absence of an ascertained beneficiary.
    3. Same.
    Such act has no retroactive effect.
    4. Same—Two months’ provision.
    A missionary society incorporated under chap. 31 of 1871, is within § 6, chap. 319 of 1848.
    5. Same—Partial failure.
    Where a legacy is to be divided among several societies, some of which are incapable of taking, the others only take the shares they would have taken had all been capable.
    ■S. Same—Right of adopted child to inherit.
    The word “inheritance,” in chap. 830 of 1873, as amended by chap. 703 of 1887, applies to personalty as well as realty.

      7. Same—Besóme enabling act.
    A child, adopted before the passage of the act of 1873, may inherit as provided by the act of 1887.
    Action for a construction of a will.

      D. Gr. Wellington, Joseph Mason and Q. A. Hitchcock, for pl’ffs; Q. Gr. T. Parker (Judge Potter, of counsel), for executor, and deft Lillie M. Simmons; Ellsworth, Potter & Storrs, for deft American Missionary Association ; John E. Pound, for deft First Free Congregational Church of Lockport.
   Ward, J.

This action was brought by the plaintiffs to obtain a judicial construction of the last will and testament of Fdward J. Simmons, late of the city of Lockport, in the county of Miagara, M. Y. On the 26th of August, 1892, Edward Simmons made, executed, and published his last will and testament, and in and by which the defendant Myron L. Burrell was appointed sole executor thereof; and on the 27th day of September, 1892, he (said Simmons) departed this life, being a resident of the said city of Lockport. ■ This will was admitted to probate on the 21st of Movember, 1892, by the surrogate of Miagara county ; and letters testamentary thereon were issued to Burrell, who assumed the duties of his trust, and is still such executor. The testator left real and personal property of the value of about $40,000, of which about $20,000 was real estate. The will empowered the executor to sell the real estate, except the testator’s residence, and dispose of the property as therein appears. After providing for the payment ■of his debts, in the first clause, he, by the second, third, fourth, and fifth clauses, makes provision, by way of legacies, for the defendant, Lillie M. Simmons, whom he designates in the will as “ the person known as Lillie M. Simmons, and as my adopted daughter.” He sets apart certain sums for her use during life, ■and also the residence of the deceased in Lockport, some of which legacies are to be hers absolutely, in certain contingencies, and a relative, Mary Ann Belden, to have a home in the house, and certain support out of these legacies. The sixth clause gives to his brother Walter Simmons a weekly support, and the interest on certain funds which are set apart for him, ■and the principal, or so much thereof as should be needed for his support; and the remainder of that sum should become a part of the residuary estate, under the thirteenth clause of the will. The remainder of certain legacies given to Lillie should also go to the residuary estate under the thirteenth clause. By the seventh, eighth, ninth, tenth, eleventh, and twelfth clauses, certain legacies were given to his relatives and to religious organizations; the ninth being to the First Free Congregational Church of Lockport, which will fully appear hereafter. The thirteenth clause is as follows: “Thirteenth. I give, devise, and bequeath all the rest, residue, and remainder of my estate and property, of every name, kind, and description, to the American Congregational Union, incorporated in the city of Mew York in the year 1853, its successors and assigns; to the American' Home Missionary Society, formed in the city of New York in the year 1826 and to the American Missionary Association of New York city— to be equally divided between them, share and share alike, to be used by said three societies, and applied to the charitable uses, and purposes of said societies, respectively.”

Aside from the properties that fall into this clause, as above-stated, there were ten or twelve thousand dollars of property that was disposed of directly to these corporations by this clause. The deceased left no wife or children, except his adopted child, Lillie, or descendants from children, or father or mother, but left brothers and sisters, nephews and nieces, at whose instigation this action was commenced, claiming to be the next of kin of the deceased. Up to the time of the trial the executor had sold and invested in real estate securities, or had the proceeds of the sales in some form, amounting to $11,500. The debts of the deceased did not exceed $1,000. The complaint demands relief, among other things, that the legacies to the corporations in the thirteenth clause be declared invalid, and that they take nothing under the will, the reason being given in the complaint that the will had not been executed two months before the death of the testator. It also demanded that $500 of the legacy given to the Society of the First Free Congregational Church of Lockport be adjudged invalid, and that the court adjudge that the defendant Lillie M. Simmons is not the daughter, by legal adoption, of the deceased, and not entitled to any right, title, or interest in the estate of the deceased, except such portions of the estate as are especially devised and bequeathed to her by the will itself, and that the plaintiffs be adjudged to be the heirs and next of kin of the deceased, and entitled to all the property that came into the thirteenth or residuary clause. The defendant Lillie answered that she was legally adopted by the deceased under the laws of this state, and thereby became and is his heir at law. The corporations mentioned in the thirteetith clause-severally answered, insisting upon their rights, respectively, to the property devised and bequeathed to them. The executor also answered, insisting upon the validity of all of the provisions of the will. The defendant Lillie came into the family of the deceased when she was about two years of age; took the name of Simmons; was treated by the deceased and his wife as their daughter, in every respect. She was not even aware that she was not their daughter until about 14 years of age. She remained at home with the deceased, and in his family until' his death, discharging faithfully the duties of a daughter in the household ; she calling the deceased and his wife “ father ” and “ mother,” and they calling her their daughter, and she being recognized as such among friends of the parties, and in the will of the deceased. The ma"nner of her adoption, and the grounds upon which she predicates her claim that she is an heir and next of kin of the deceased, will' be considered hereafter.

Some of the defendants insist that the plaintiffs, as the assumed heirs and next of kin of the deceased, have no standing in court, and have no right to maintain this action, and cite Whitney v. Whitney, 63 Hun, 59; 43 St. Rep. 841, and Read v. Williams, 125 N. Y. 560; 35 St. Rep. 909. This contention is based upon the assumption that all the questions involved are purely legal and involve no trust, such as invoke the jurisdiction of a court of equity, and do not present a case authorized by §§ 1866 and 1867 of the Code of Civil Procedure. An examination of the complaint and of the will can leave no doubt but what this action was properly brought, as to some of the questions involved. There are certainly trusts imposed upon the executor by this will, and those trusts are so connected with the entire property as to render an adjudication up°on them not only proper, but necessary. Wager v. Wager, reported in 89 N. Y. 161, was an action for a construction of a will like this by heirs and next of kin claiming to be entitled to a share of the residuum, which they alleged was undisposed of by the will of William Wager, deceased, and the court there say: “ So far as the property is effectually disposed of by the will, the executor holds it in trust for the legatees or beneficiaries. * * * If there is any part of such property, or any interest therein, not effectually disposed of by the will, he holds it in trust for those who are entitled to it under the statute of distribution.”

And cites Bowers v. Smith, 10 Paige, 193, and other cases, and proceeds: “ Any person claiming an interest in the personal estate of the testator, either as legatee under the will, or as entitled to it under the statute of distribution, may file a bill against the executors to settle the construction, and ascertain the validity, of the provisions of the will, so far as the complainant’s interest is concerned, and to enable him to obtain from the executors such portions of the estate as he is either legally or equitablv entitled to.”

And again, at page 168, the court say: “If the court had obtained jurisdiction for the purpose of establishing the equitable rights of the next of kin to the personal estate, that carries with it jurisdiction to adjust the whole controversy.” And citing also, at this point, 10 Paige, 200.

And the jurisdiction obtains whether the party asking the construction seeks to maintain the trust founded upon the will, and obtain a benefit from it, or to destroy the trust, and secure benefits thereby, as, in either event, the court is called to pass upon the validity and effect of the trust itself, whether that trust be an express, or resulting one. See, also, Read v. Williams, 125 N. Y. 560; 35 St. Rep. 909; Tiers v. Tiers, 98 N. Y. 568; Adams v. Becker, 47 Hun, 65; 13 St. Rep. 41; Van Camp v. Fowler, 36 St. Rep. 580; 13 N. Y. Supp. 1.

A trust is plainly created, so far as the language goes, by the ninth clause of the will, which is as follows: “ I give and bequeath to the Society of the First Free Congregational Church of Lockport, FT. Y., the sum of two thousand dollars, to be expended for such purpose as the board of trustees of said society shall think best; to be paid within three years after my decease. And I also give and bequeath to the said the Society of the First Free Congregational Church of Lockport, N. Y., the further sum of five hundred dollars, in trust to invest the same at interest, upon good security, and to apply the interest, thereon each year to the purchase of clothing or material to be made up into clothing by the ladies of the church without reward, for poor children to enable them to attend the Sabbath school at such church. It is my direction that no part of such clothing shall be given to any child unless the necessities of the case are such that there shall be good reason to believe that the child would not otherwise attend the-Sabbath school. -The said sum of five hundred dollars is not to be loaned to the church, but is to be loaned to third parties, and kept a separate and distinct fund.”

This church was what its name imports,—a Congregational church,—incorporated in 1838 under the act concerning religious corporations and societies, passed April 5,1813. The plaintiffs attack the $500 bequest given to the church in trust as void for indefiniteness and uncertainty in the designation of the beneficiaries of the trust. It is apparent that it was not intended by the testator to give this fund to the church for its own uses and purposes, as he lawfully might do, and as has been done in the bequest of the $2,000 in the preceding clause. He is careful to say, with respect to this $500, that it is “in trust," and “ is not to be loaned to. the church, or used by the church.” And the question now is, whether the plaintiffs’ obj ection is well taken. The beneficiaries are certainly not pointed out specifically. It is left to the judgment of certain ladies of the congregation, to select the objects of this bounty', and to clothe the children that, without such clothing, would not attend the Sabbath school; and the range of this discretion seems to be very wide, and any children that the. ladies might think poor can be selected, no matter whether they are members of the church or congregation, or members of the Sabbath school, or connected therewith, or reside in Loekport or elsewhere. The counsel' for the church cites, as sustaining the validity, of this clause, Williams v. Williams, 8 N. Y. 525-530, and Powers v. Cassidy, 79 N. Y. 602. The first of these cases was decided in 1853—three judges dissenting—and the facts were these: A testator gave to three trustees of the village of Huntington, $6,000, in trust, as a perpetual fund, the interest of which was to used for the education of the children of the poor, who-should be educated at the academy in the village of Huntington. The bequest was there sustained upon the English doctrine of charitable uses that was in force in England prior to the revolution, and therefore, the court say, was in force in this state, and that our Revised Statutes relative to uses and trusts do not apply to bequests for charitable uses; this doctrine of charitable uses, so far as it affects the question before us, being that devises and bequests for the support of religion or charity, though defective for want of sucli a beneficiary as the rules of law require in other cases, e would, “ when not in violation of the mortmain act, be supported and established in the court of chancery.” A long struggle in our court of appeals followed, upon this question, and in the case of Levy v. Levy, 33 N. Y. 97, the doctrine of the 8 N. Y. was vigorously assailed; and in Prichard, v. Thompson, 95 N. Y. 76; Holland v. Alcock, 108 N. Y. 312; 14 St. Rep. 761; Cottman v. Grace, 112 N. Y. 307; 20 St. Rep. 783, and Fosdick v. Town of Hempstead, 125 N. Y. 581 ; 35 St. Rep. 863, and in other cases, —the doctrine stated in Williams v. Williams was utterly overthrown, and is no longer the law of this state, and was not at the time of the death of Edward J. Simmons. The position taken by the court of appeals'in this regard now is that in the absence of a defined beneficiary, either named or capable of being ascertained, within the rules of law applicable to such cases, or where the gift is so indefinite as to be incapable of being executed by judicial decree, it is invalid. The object of this bequest was praiseworthy, and was creditable to the testator, but it cannot be sustained under the law of this state, and the decisions of its highest court, and is invalid. Nor does chapter 701 of the Laws of 1893, passed May 13th, enacting that no bequest or devise to religious, benevolent or charitable uses which are in other respects valid by the laws of this state, shall be deemed invalid by reason of the indefiniteness or uncertainty of the persons designated as the beneficiaries thereunder if in the instrument creating the bequest or devise there is a trustee named to execute the same, etc., relieve the situation, or give life to the void bequest, as it was passed after the death of Simmons, and after the rights of the persons to this controversy had become vested. The act itself does not assume to have a retroactive effect, and, if it did, it would not be permitted to have that effect as against vested rights. This much is conceded in Dammert v. Osborne, 140 N. Y. 43; 55 St. Rep. 586 ; and the learned judge pronouncing the opinion in that case, in speaking of the statute, says that it seems to indicate on the part of the legislature an intent to enforce and- uphold charitable bequests not heretofore recognized as valid, “ and it may be regarded as the first step in the direction of modifying the body of law which this court has built up on the ruins of the system outlined in Williams v. Williams,” supra. In Powers v. Cassidy, 79 N. Y. 602, the property was given to the executors to be divided by them among such Roman Catholic charities, institutions, schools or churches in. the city of New York as a majority of the executors should designate. The court there held that as it appeared that there were incorporated institutions, of the kind described in the will, in the city of New York, capable of taking, the beneficiary was defined in the will itself, or capable of being ascertained, and, therefore, the bequest was valid. Subsequent cases, in passing upon this case, say that such is the effect of the case, but it should not be extended any further than the facts in that case would warrant. I do not see, therefore, that this case assists the defendant.

The defendant, the American Congregational Union (its name having been changed so that it is now the Congregational Church " Building Society), it is conceded by the pleadings and established by the proof, was incorporated under the act “ For the incorporation of benevolent and charitable, and scientific and missionary societies, being chapter 319 of the Laws of 1848.” By the sixth section of that act, corporations formed thereunder could not take a valid devise or bequest made in any will which should not have been made and executed at least two months before the death of the testator. Consequently, the bequest to this corporation is void, and the property it would ,take goes to the next of kin.

The defendant the American Home Missionary Society, now known as the Congregational Home Missionary Society, was incorporated under and by virtue of an act of the legislature of this state, being chapter 21 of the Laws of 1871; and by the second section thereof it was provided that the corporation should be capable “ of taking, holding by purchase, gift, grant, devise or bequest, subject to the provisions of law relating to devises and bequests by last will and testament, real and personal property, of granting or otherwise disposing of the same for said purpose.” The declared object of this corporation was “ for the purpose of assisting feeble congregations, and of sending the gospel, and the means of Christian education, to the destitute within the United States.” The right, therefore, to take by devise or, bequest, was made subject to the provisions of § 6 of the act of 1848, above referred to, and the bequest, not having been made within two months of the testator’s death, is invalid for that reason.

The defendant the American Missionary Association was incorporated, under chapter 858 of the Laws of 1862, for the purpose •of “conducting missionary and educational operations, and diffusing a knowledge of the Holy Scriptures in the United States and in other countries.” By the fifth section of this act, devises and bequests not made to the corporation at least two months before •the death of the testator were not valid. But by chapter 52 of ■the Laws of 1886 this § 5 was repealed, so that the two-months limitation does not apply to this corporation; and therefore the bequest to it in the thirteenth clause is valid, so that it will take one-third of the whole of the residuary fund. It is claimed by the counsel for this corporation that, if the other corporations cannot take, the whole fund disposed of by the thirteenth clause should go to the American Missionary Association, as the testator evidently intended to devote this residue to charitable uses; that the effect of the provision was to make, a class of the three societies; and that it is well settled that upon a failure of one or more of a class to take, the residue goes to the one entitled to take or the survivor. I find no warrant for this contention in the will. On the contrary, by the thirteenth clause, the residue is bequeathed to these societies by name, “to, be equally divided between them, share and share alike; to be used by said three societies, and applied to the charitable use and purposes of said societies, respectively."

Some question has been made, upon the argument, about the j>ower of the court to determine in this action the status and rights of the various parties to the action, as to the property in dispute; the claim being.that this is an action for the construction of the will, and not to determine who are entitled to take under it that part of the property, at least, which is to go to the heirs of law or next of kin. There is much force in this question, but, as before said, the plaintiffs have asked that the court determine in this action the status of the plaintiffs and of Lillie Simmons in relation to this property ; and Lillie, in her answer, also asks the determination of her status; and the trial proceeded by the seeming acquiescence of all parties that this should be done, and proof was given on the subject I will therefore consider it.

The finding will show, substantially, that the plaintiffs represent the interests of the blood relatives—so to speak—of the deceased. The important question now to determine is as to whether Lillie Simmons was the adopted child of the deceased, and the effect of such adoption.

By chapter 244 of the Laws of 1849 a society was incorporated by the name of the American Female Guardian Society, and it was declared by the second section that'the object and business of the society should be, “by the publishing and diffusion of books, papers and tracts, and by other moral and religious means, to prevent vice and moral degradation, and to establish and maintain houses of industry and homes for the relief of friendless, destitute or unprotected females, and for friendless or unprotected children,”—its business to be conducted by a' board of managers. By the fourth section the corporation had the right to hold property for the uses of the society, and receive by gift or devise, in the same manner, and subject to the same restriction, as religious ■corporations, and to possess the rights of corporations according to the provisions of title 8, c. 18, pt 1, of the Revised Statutes, so far as applicable; and by the sixth section it was provided that, “ in all cases where a child shall have been surrendered by its natural or other legal guardians to the care and management of the society,” etc., “ it shall be lawful for the board of managers, at their discretion, to place such child by adoption or at service in some suitable employment, and with some prqper person or persons, conformably to the laws of this state in regard to the binding out of indigent children, provided that in all such cases the terms of the indenture shall be approved by the commissioners of the alms house or of the surrogate of the city and county of New York, which, approval shall be signified on such indenture by the signature of such commissioners or surrogate, but in every such case the requisite provision shall be inserted in the indenture or contract of binding to secure the child so bound such treatment, education or instruction as shall be suitable and useful to its situation and circumstances in life.” It is difficult to conceive a more praiseworthy object than the purpose for which this corporation was created,—to rescue the little waifs of society, mainly females, who had been abandoned by their natural guardians, and thrown upon the world without protection or a home, from “vice and moral degradation.” This statute, in view of its high and beneficial purposes, should receive a liberal construction, in order to fully carry out those purposes; and it appears from this sixth section that one of two courses was open to these societies, with reference to these children,—either have them adopted, or bind them out to service. If they were to be bound to service simply, the fd’rm of binding, and the nature of the contract of service that should be-entered into between the society and the person receiv ing the child, should be “ conformably to the laws of this state in regard to binding out of indigent children.’’ If it was adoption, simply, the statute leaves the inference that it should be by some suitable instrument providing for the adoption of the child, as a child, into the family of the person adopting, or the society could, by the same instrument, provide for both adoption and apprenticeship, and thus secure to the child the benefits of both ; so 'that-when the terms of apprenticeship ended, at the age of 18 years, the relation of parent and child created by the adoption would still exist with all its benefits and consequences. Any other construction of this statute would be too narrow. If adoption was not to have the efféet here stated, the provisions as to adoption which would be inserted in connection with the contract of apprenticeship would be meaningless, which is not to be assumed, as it is the purpose of the law to give effect to all the terms of a contract," when they can be reconciled with reason, with each other, and with the purposes of the contract itself. With these observations, I will now consider the character and effect of an instrument of adoption and apprenticeship which was entered into on the 13th day of December, 1861, “between the Female Guardian Society, of the first part, and Edward Simmons, of Lockport, Niagara county, and state of New York, of the second part” (the said society being still incorporated, and in the exercise of its statutory powers). The first word in the instrument, and at the top of the first paragraph, and as a caption, is “Adoption” ; and after the date of the instrument, and parties, it states: “Whereas, Mary Jackson Wilson, a female child, who was of the age of two years the first day of. December last, has been duly surrendered by its natural or other legal guardian to the care and management of the said society; and whereas, the said Edward Simmons has applied to the manager of the said society to put out and place the said child with him by adoption, and as an apprentice, until such child shall arrive at the age of 18 years: Now, this indenture witnesseth, that the parties of the first part, acting by their board of managers, and in pursuance and by authority of an act of the legislature of the state of New York entitled ‘An act to incorporate the American Female Guardian Society,’ passed the sixth day of April, 1849, and with the approbation of the surrogate of the city and county of New York, have, placed,-bound out, and by these presents do put, place and bind out, the said Mary Jackson Wilson, as an apprentice, unto the party of the second part, to dwell with and serve him from the day of the date of these presents until the said apprentice shall attain the full age of eighteen years.”

Then followed the usual provisions as to’ the apprentice’s duty, and that of the master, as required by law, as to the binding out of indigent children, and it aleo contained this significant provision: “Although the present instrument binds the above-named child strictly as an apprentice, it is nevertheless the true intention of the parties of the first part to place, and the party of the second part to receive, said apprentice as an adopted child, to reside in the family of the party of the second part, to be maintained, clothed, educated and, treated, as far as practicable, and with like care and kindness, as if she were in fact the child of the party of the second part.”

So the real purpose of the instrument was to adopt the child. Thus the child was lifted from the apprentice at service to the dignity of a member of the family, and, while her servitude continued, she was to have the care, solicitude, and protection of a child in the family, and after the servitude ended, at the age of 18, she was still a child by adoption, and entitled to all the privileges of a child; and therefore the relationship between the parties did not end, as contended by the learned counsel for the plaintiffs, when she reached the age of 18. - This instrument of adoption and apprenticeship was executed in duplicate by the parties thereto, and approved by the surrogate of the city and county of New York. The child was taken to the home of the testator, and immediately took the name which she now bears, of Lillie Simmons, and the relation, as a matter of fact, of parent and child, existed ever after between the deceased and Lillie. The word “adoption” or “adopt,” as used in this instrument, is a broad term, and of great significance. Webster’s Dictionary, as well as the Imperial Dictionary, defines adoption to be “the act of adopting, or the state of being adopted; the taking and treating of a stranger as one’s own child.” The Encyclopedia Britanniea defines it to be “the act by which the relations of fraternity and affiliation are recognized as legally existing between persons not so related by nature.” And Worcester defines the word “adopt” “to receive and treat as a son or daughter one who is the child of another; to affiliate; to take, select, and assume as one’s own.” And adoption was practiced from the remotest antiquity, and was established to console those who had no children of their own. Bouv. Law Diet. Prior to the enactment of chapter 830 of the Laws of 1873, as amended by chapter 703 of the Laws of 1887, adopted children could not inherit or take as next of kin from the persons adopting them, in this state. In Borne, where the civil law prevailed, and to some extent in the Grecian states, the right to inherit was given to children who had been adopted. But in order to protect the heirs and next of kin of the person adopting, whose interests were to be affected by the adoption, and in all countries and states where the right of inheritance has been conceded to adopted children, some form of adoption, of a public character, under sanction of law, or by consent of the authorities, has been required. As far as I have been able to ascertain, the right to inherit has ’never been given to any child or person whose adoption was simply by parol. The right of inheritance was not given to adopted children by the English law. The instincts of feudalism and the theory of primogeniture rejected it. Hor was it permitted in the earliest histories of the states of our Union. But now, in many states, including our own, special provisions have been made by law for adoption, and for the right of inheritance in the person adopted ; and this policy is now deemed a wise one in most enlightened countries and states, as it completes and solidifies that relation created by the adoption of a stranger to the blood into the family. It is the misfortune of many married persons to be childless, and the custom is quite general for such persons to adopt children. Happy results often flow from such adoption, and it should be the policy of the law to make that relation, when once assumed, as strong as possible.

It is well known that at the time of the passage of the act of 1873 there had been many adoptions of children in this state under various statutes, such as the one under which Lillie was adopted, and by various charitable, religious corporations or orphan asylums, or other persons having charge of children needing homes and protection.' These adoptions had been through instruments executed between the parties1 disposing of and persons adopting the children, and the indorsement or consent of some public official, like a surrogate, supreme court judge, county judge, or commissioner, had been required. These acts were revised and consolidated by chapter 438, Laws 1884; and see § 7 thereof. Sometimes these instruments assuming to create adoption had been defective, and had not conformed absolutely to the provisions of the law under which they were executed. But the parties interested had relied and acted upon them, and it was important that they should be sustained; and the legislature at length concluded to legalize them, and to prescribe a uniform method of adoption for the future, and proceeded to do so by this act of 1873, and marked out a course of procedure to govern such future adoptions. And it was provided in the tenth section of the act of 1873 that a person, when adopted, should take the name of the person adopting, and the two should thenceforth sustain towards each other the legal relation of parent and child, and have all the rights, and be subject to all the duties, of that relation, excepting the right of inheritance. But by chapter 703 of the laws of 1887, which amended the tenth section by expunging the words “excepting the right of inheritance," and inserting after the word “relation,” in the fourth line of the section, these words: “Including the right of inheritance, and .the heirs and next of kin of the child so adopted shall be the same as if the child was a legitimate child of the person so adopting."

The concluding section of the act of 1873, § 13, provided that: “Nothing herein contained shall prevent proof of the adoption of any child heretofore made according to any method practiced in this state from being received in evidence, nor such adoption from having the effect of an adoption hereunder, but no child shall hereafter be adopted except under the provisions of this act, nor shall any child that has been adopted be deprived of the rights of adoption except upon a proceeding for that purpose with the like sanction arid consent as is required for an act of adoption under the eighth section hereof, and any agreement and consent in respect to such adoption or abrogation thereof hereafter to be made shall be in writing, signed by such county .judge or a judge of the supreme court, and the same or a duplicate thereof shall, be filed with the clerk of the county and recorded. * * * But nothing in this act contained in regard to such adopted child inheriting from the persan adopting shall apply to any devise or trust now made or already created, nor shall this act in any manner change, alter or interfere with such will, devise, or said trust or trusts, and as to any such will, devise or trust, said adopted child shall not be deemed an heir so as to alter estates or trusts or devises in wills already made or trusts already created.”

This statement is too plain for cavil or comment.' It, so to speak, adopted all former adoptions, pursuant to any method practiced in this state. It brought these adoptions under and within the purview of this statute. It gave all the persons who had thus been adopted, after the amendment of 1887, the right to inherit and take, as next of kin, the property of the intestate who had adopted them; and the section was"careful to say that persons adopted theretofore should not be deprived of their adoption except by a proceeding for that purpose, with the like sanction and consent that were made necessary for adoption under that act itself. And it is entirely clear that in providing a method for adoption, the recording of the adoption papers, etc., and in optaining the consent necessary for a valid adoption, provided in that act, it only related to future adoptions. ' It is true that the act of 1887 uses the word “inheritance.” as applied to adopted children, which, in its strict meaning, refers only to real estate; but. the legislature evidently used this word in its broad sense, and as commonly accepted,—as a right to both real and personal property of which the parent died seized or owning. This is evident from the words following the word “inheritance,”—“and the heirs and next of kin of the child so adopted shall be the same as if the said child was a legitimate child of the person so adopting.” It could not have been the intention of the legislature to clothe the children of the adopted child with any right additional, as to the property of the person adopting, than- the person adopted himself enjoyed. "

The learned counsel for the plaintiff cited, as in conflict with the views here expressed, the case of Hill v. Nye, 17 Hun, 457. That case arose after the passage of the act of 1873, and was decided in 1879, and was consequently before the passage of the amendment of 1887, conferring the right of inheritance. In that . case one Cheeny Hill and his wife had an infant child. Oheeny went to state’s prison for a long term of years, and his wife gave the child (a boy) to one Kelsey. There was no adoption under any statute, or under any form of writing, but it was simply a parol gift of the child. The boy took the name of Kelsey, lived in his family as a child, married, and had a son. That son had some personal property, and "died at the age of seventeen, his father and mother having died before him. The property had to be distributed, therefore, under the statute of distributions. The question was, whether the paternal grandfather (Hill) was entitled to share in the distribution, or whether he was excluded by the adoption of his son by the said Kelsey. The court, at general term, rightly held that Hill was entitled to share in the distribution with the relatives of the deceased on his mother’s side, and this parol adoption did not bar Hill from taking. Ho one would reasonably contend that such an adoption would deprive Hill of the property, and the court could have decided it in no other way, and that was all there was before it. The observations of the learned judge as to the effect of the thirteenth section of the act above quoted, with all due respect, were, therefore, not necessary to the determination of the case; and the trial court is not required to follow them in this instance, and under the circumstances of this case, so widely different from that, and after the amendment of the statute conferring inheritable qualities upon adopted children- The judge, at page 461 (Hill v. Nye, supra), quotes that portion of the thirteenth section which is as follows: “Nothing herein contained shall prevent proof of the adoption of any child heretofore made according to any method practiced in this state from being received in evidence, nor such adoption from having the effect of an adoption hereunder; ” and, after saying that the only effect of the provision as to evidence of former adoption was that it did not take away the privilege of proving such adoption1' as theretofore existed, he says: “ The second provision quoted simply declares, in effect, that, where such antecedent adoption may have been proved, or be found to exist, it may have full force and effect given to it, notwithstanding it took place prior to the passage of the statute; that nothing contained in the statute shall prevent such antecedent adoption from having the effect of an adoption hereunder,—that is, this statute shall not prevent any such effect being given to it. But this stops far short of declaring that such antecedent adoption, when proved, shall have the like effect as an adoption consummated in the mode prescribed by the statute."

Again the judge says: “We have been unable to find any provision in the act of 1873 which indicates an intent to interfere with the statutes of distribution in respect to cases of adoption, like the one before us. When a case shall arise under the statute of 1873, it will present numerous interesting questions, as the statute is somewhat indefinite and obscure. * * * The words ‘ excepting the right of inheritance ’ are apt and appropriate words to be used with an intent to except from the new departure such inheritance of real estate as would pass under the laws regulating descent.”

The judge, therefore, seems to concede that the case before him did not arise under the statute of 1873, and consequently any attempt to construe it was unnecessary, and therefore obiter, but he lays stress on the fact that the right of inheritance was excepted: Is it not fair to assume that had the case before us, with the statute as amended, been before the judge at that time, he would have reached very different conclusions. The title of the act of 1873 is important in aid of its construction, especially so when, as the learned judge says, “the statute is somewhat indefinite and obscure.” In such cases, resort may always be had to the title of the act, in order to ascertain its purpose and object, arid that title is,, “ An act to legalize the adoption of minor children by adult persons.’1 This is in harmony with the thirteenth section, and the general policy of the law. If the former adoptions were not to be placed upon the same footings with the adoptions that should thereafter occur pursuant to the act of 1873, what was there to legalize? Why was it provided that those adoptions should not he disturbed, except by a special proceeding for that purpose ? The judge says, in effect, that though the clause stated that any child theretofore adopted should not be deprived of the effect of ■an adoption hereunder, the statute of 1873, yet it should not have the like effect of an adoption hereundpr. Then it is to have some effect,—just what, we are not told,—and it is a question that must be determined in this action. It is true that § 13 is awkwardly drawn, and is possibly open to the criticism or distinction, upon a bare consideration of its words, which the learned judge makes. But we must take the whole statute together — its objects, the remedies sought by it, and the condition of things upon which it operated—in construing it; and, in my mind, no doubt remains that the intention of the legislature was to legalize these former objections, and place them on a level with the adoptions that should thereafter occur, and not subject the parties to a new adoption under that statute, in order to confer upon them the rights which it granted ¡ and, when the right to take as heirs and next of kin was conferred by the amendment of 1887, it covered all cases of adoption alike, that had been recognized by the act of 1873. It needs no argument to show that if the adopted child was clothed by statute with the right to inherit, and to take as next of kin, he takes, under the statutes, of descent and distribution, the same as a legitimate child of the intestate. The result which comes from the conclusions above reached is that Lillie Simmons was the legally adopted child of the deceased, and takes the undevised and unbequeathed property of Edward J. Simmons, to the exclusion of the plaintiffs and is his sole heir at law and next of kin. There are no vested rights to interfere with her taking this property, as her adoption was legalized, and she was entitled to inherit, long before the death of Simmons, and therefore before any rights to his property had vested in his relatives.

The complaint asks an adjudication as to the right of Lillie to devise or bequeath by will the sum of $7,000, or the securities in which the same may be invested, mentioned in the fourth provision of the will, in case she should not marry, or have a child born to her. It was conceded upon the argument that she would have this power, by all parties, and I have therefore not considered it; and the conclusions above reached render it unnecessary to do so. Eo relief can be given the plaintiffs in this action, as they take nothing by it, but the questions are important, and proper to be brought before the court for adjucation, and the plaintiffs were justified in doing so. They should therefore recover costs, to be paid out of the fund, the property of the deceased. The defendant the American Missionary Association should also recover costs. The defendant the Society of the First Free Congregational Church of Lockport should have costs, as its defense was made in good faith, and for a meritorious qbject. The defendant the executor Burrows should recover costs, and also the defendant Lillie M. Simmons. All costs to be paid out of the funds of the property of the deceased.


source: Caselaw Access Project

author: Sedgwick, C. J.

license: Public Domain

text:
    Emma Beyer, by Guardian ad litem, etc., Resp’t, v. Thomas B. Clark, App’lt.

      (New York Superior Court, General Term,

      Filed May 7, 1894.)

    Appeal—Exceptions.
    The general term of the superior court may, in its discretion, grant & new trial, when counsel, by oversight, has not taken proper exceptions, and yet it is manifest that the justice of the case should protect the client.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on. the minutes.

      John Notman, for app’lt; Charles Sleekier, for resp’t.

       Mr. Notman was not counsel or attorney at the trial.

   Sedgwick, C. J.

A feature of this case is that there were no-exceptions taken upon the trial. A motion for a new trial was made, because the verdict was contrary to the evidence, and against the weight of evidence, and contrary to,Jaw. There are cases in this court which hold that, if during the trial the appellant has not asked a ruling or direction of the court in respect of matters which may be the ground of a motion for a new trial, then he is deemed to have waived such matters, and the motion for a new trial should be denied. But an appellant is then not without a'~ remedy. The general term has the power to consider the case without regard to any exceptions having been taken, and, if justice calls for a new trial, will grant one. It may in its discretion grant one when, from mistake or oversight, something has happened which has led to a wrong result. The cases in which this can be done are very rare. It can be done when counsel by oversight, has not taken proper exceptions, and yet it is manifest that the justice of the case should protect the client. Of course, usually, if there has been -negligence in the case, the consequences must fall upon the one that has been guilty of it.

The action was for damages from the negligence of defendant. The plaintiff was 16 years of age. The defendant had hired her, and she had been1 in his employment for more than two years, as a corset maker. In the fifth floor of defendant’s building was the end of a shaft coming through the floor. It came through a horizontal hanger on the floor, and the top of the hanger was about-6 inches from the floor. The hanger was bolted to two beams, 6 inches apart. The beams were 26 inches long, 6 inches broad, and four inches high. These beams were bolted to the floor. The shaft at its top was 25 inches from the floor, but the hanger was 9 inches in height, so that the top was exposed in the air 16 inches. The most of these details come from the defendant as a witness in his own behalf. He was not contradicted in any respect, and his testimony on this subject is to be considered as true. The shaft was about 57 feet from the front of the building, and about 30-feet from the rear, and about 87 feet from the head of the only staircase in the room. The plaintiff was the only witness in her behalf. I examined her testimony to find if the plaintiff gave any evidence that she was without negligence when she was caught by the shaft. She testified that, on the morning of the occurrence, she was washing the windows on the fifth floor. „ The floor had. nothing upon it, and during four hours, while working there, she did not see the shaft. At 12 o’clock she went downstairs, and came back. As she went upstairs, she did not know at that time-that the shaft was there. On cross-examination, she said, in answer to a juror; “Q. Could you see it when you got to the head of the stairs? A. Yes; you could see it. Q. You could see it clearly from the head of the stairs? A. Yes, sir.”

To counsel she said that the shaft was in plain sight from the head of the staircase, and a little to the right. She continued; “ And as I went, I was a little ways from the shaft. I did not know that the shaft was there, and the back of my dress caught on the shaft, and pulled me round the shaft”

She was two feet and a half away from the shaft when her dress caught on the shaft. The wind was blowing from one window to another.

“ Q. There was a draught there; the windows front and rear were both open; is that right? A. Yes, sir. H. When you noticed your dress caught there on the shaft, was that the first time you had noticed the shaft there? A. Yes, sir. The shaft was revolving when the dress was caught. It was one inch and a half in diameter, and about two feet high. Q. That was the first time you had seen this shaft? A. Yes, sir. I never knew of the existence of this shaft there until my dress was caught in it.”

The consequences were that one arm was torn from her body, and she was in other ways -seriously hurt.

I am of opinion that the testimony was incredible, and that it should have been so found to be by the jury; and in particular that it was not true that she never knew of the existence of the shaft until my dress was caught in it.” The evidence on this-point, to my mind, was intentionally shaped by her to avoid meeting the obligation of care that she would have to meet, if she, on approaching the shaft, had knowledge that it was there. Also, her testimony as to the way in which, as she said, her dress was caught in the shaft, without explanations and particulars due to the case, is incredible. She was two feet and a half from the shaft. There was a draught of air between the windows. The back of her dress was taken by the wind, and caught on the top of the shaft. The shaft was without projections. There was no explanation of what part of her dress was blown aside and up. Under general conditions, such an occurrence does not happen, excepting peculiar conditions also exist. There were no explanations. I think the judgment should be reversed, and the verdict set aside, and a new trial ordered; but, upon payment of the costs and disbursements of the term at which the trial took place,, without costs of appeal to either party.


text:
    Melvin E. Boas, App’lt, v. Thatcher Car and Construction Company, Resp’t.
    (New York Superior Court, General Term,

      Filed May 7, 1894.)

    Contract—Modification.
    Where the purchaser of goods to he manufactured requests the seller, after the time fixed for the delivery, to do his utmost to complete the goods, the contract is modified as to the time of performance.
    The complaint was dismissed upon the trial and plaintiff's exceptions ordered to be heat'd in the first instance at general term.

      Ambrose Q. Todd, for pl’íf; Titus c& Dowling, for deft.
   Sedgwick, C. J.

The action was upon the written contract of the parties. It was made May 5, 1898. The plaintiff agreed to make and deliver to the defendant certain goods, “ and to complete them within three weeks’ time.” The defendant agreed to pay for them a stipplated price, and there is no dispute here as to the amount. On the trial the learned judge dismissed the' complaint under plaintiff’s exception, and ordered the exceptions taken hy plaintiff to be heard in first instance at the general term. The counsel for the parties here argue that the complaint was dismissed solely upon the ground that it appeared that the goods were not delivered within three weeks, and that it does not appear that the defendant had waived the provision as to the time of delivery. The time named in the contract—that is, May 26th—elapsed without delivery.. On June 9th, the defendant wrote by its officer, “ I am much surprised to hear that your people have not got any of the address books ready yet,” .and “ By giving this your personal attention, and doing your utmost to push the books to completion, you will very much oblige,” etc. This modifying the contract, of course, as to the time of performance, waived the obligation of the plaintiff as to the time first stipulated. " The jury might have found that the plaintiff agreed to the- modification as to time. The modified contract was obligatory upon the parties from that time. As to whether the plaintiff complied with the new contract by doing his utmost, if it were necessary to show that, would be a question for the jury. The jury might have found, if the testimony left it in doubt, that on June 10th the defendant to the plaintiff orally-to stop work on those memorandum books until they received further orders. The plaintiff refused to accede to the proposition. If these positions are correct, the plaintiff, as might have been found by the jury, offered for delivery to the defendant the goods in a condition provided by the contract, and was entitled to receive the price by the contract. I am of opinion that at the least the plaintiff had a right to go to the jury upon the issues of fact.

Plaintiff’s exceptions are sustained, and a new trial is ordered, with costs to abide the event.


author: Freedman, J.

text:
    Frank Flandreau, Pl’ff, v. Philip Elsworth, Def't.

      (New York Superior Court, General Term,

      Filed May 7, 1894.)

    Trial—Verdict subject to opinion of court.
    A direction of a verdict, subject to the opinion of the court at general term, is improper where there are exceptions on either side to the admission or rejection of evidence.
    Motion for judgment on the verdict, directed in favor of plaintiff subject to the opinion of the court at general term.

      Mooney & Shipman, for pl’ff; Turner, McClure & Ralston for def’t
   Freedman, J.

At the trial a verdict was directed in favor of the plaintiff, subject to the opinion of the court at general term. Such a direction is proper only where, upon the trial, an uncontroverted state of facts is presented, involving only questions of law, and there are no exceptions on either side to the reception or rejection of evidence. If there are exceptions, and the unsuccessful party desires to move upon them for an new trial, at the general term in the first instance, he must apply for and obtain from the trial judge an order that such 'motion upon said exceptions be heard in the first instance at general term, and that the entry of judgment be suspended until the decision of the general term. A confounding of the two remedies was always held to be a mistrial, and ground for a new trial. It was so before the Code of Civil Procedure, Mason v. Breslin, 32 N. Y. Super. Ct. 386, and the said Code has not changed the practice, Westervelt v. Westervelt, 46 N. Y. Super. Ct. 298. The two cases cited contain such a full discussion of this subject that a bare reference to them is sufficient for present purposes.

The case before us contains exceptions by both parties to the admission of evidence, and exceptions by the defendant to the denials of two separate motions for a dismissal of the complaint, to the refusal to direct a verdict for the defendant, and to the direction of a verdict in plaintiff’s favor. Under these circumstances, the direction of a verdict subject to. the opinion of the court at general term was a mistrial. The verdict should be set aside, and a new trial ordered, with costs to the party finally prevailing in the action, unless the parties have the record corrected by striking from the case all the exceptions. If such correction he made, the cause may be noticed upon the record as corrected for argument at the next general term.


text:
    Hall Steam Power Company, Resp’t, v. Campbell Printing Press and Manufacturing Company, App’lt.

      (New York Superior Court, General Term,

      Filed May 7, 1894)

    Landlord and tenant—Sub-lessee.
    A tenant is liable for rent where his sub-lessee holds over after the expiration of the original lease.

      Appeal from a judgment entered on a verdict directed by the court in favor of the plaintiff, and from an order denying a motion for a new trial.

      Charles De Hart Brower, for app’lt; S. Keeler, for resp’t.
   Freedman, J.

The action was brought by the plaintiff, as landlord, to recover damages from the defendant, as tenant, for an alleged wrongful withholding from plaintiff of the demised premises after the expiration of the term. Upon the trial it appeared that the withholding consisted in the fact that a third party, who-may be justly deemed to have been a subtenant, remained in possession. The weight of authority seems to be, and the majority of the text writers agree, that, if the tenant has let the whole or any part of the premises to a subtenant who is in possession at the time of the determination of the term, he must get. him out, for otherwise he will not be in a situation to render that complete possession to which the landlord is entitled, and that, if he omit to do so, the landlord has his election to sue for rent or for damages. In the case at bar the complaint, as a whole, is for the recovery of damages, but it also contains all the facts necessary to be alleged to sustain a recovery as for rent. The plaintiff, upon the trial, was, therefore, in a position to waive the tort, and to recover as upon contract. The learned trial judge directed a verdict for one month’s rent only, with interest. If the action had been determined as one for damages, the result, upon the facts disclosed, would have been a verdict for a larger amount.

The judgment and order should be affirmed, with costs.


text:
    Augusta H. Hanna, App’lt, v. Connecticut Mutual Life Insurance Company, Resp’t.

      (New York Superior Court, General Term,

      Filed April, 1894.)

    Insurance—Life—Condition—Proof of death.
    The affidavit of the attending physician of the deceased, if one of the papers constituting proof of death, must he taken to be true against the beneficiary, unless there is an explanation of a sufficient kind.
    The complaint was dismissed, and plaintiff’s exceptions ordered to be heard in the first instance at general term.

      Alex. Thain, for pl’ff; John W. Brown, for def’t.
   Sedgwick, C. J.

The action was upon a policy insuring the life of plaintiff’s husband. The plaintiff was a witness in her own behalf. On her cross-examination she said that she had seen before a paper shown to her’by counsel; that it was delivered to the defendant; that it was delivered for the purpose of proving the death of insured; that her answer applied to the whole paper, just as it was down. The policy provided that, if the insured “ shall become so far intemperate as to impair his health, this policy shall becoipe and be null and void.” Among the papers referred to was an affidavit which said that the remote cause of death was alcoholism; that the health of the deceased first began. to be affected six months before his death; that the immediate cause of death was alcoholism and extreme prostration. She made oath that the answers made by her “ are true and full to the best of my belief.” Of course, this contained an admission ■ by her that intemperance had affected the health of the deceased, and would' be conclusive upon her unless she could explain it to the satisfaction of the jury. Assuming (not deciding) that there was a question as to the nature of the admission already alluded to, I think nothing can be said as to her admission of another kind. It was contained in an affidavit—one of the papers constituting the proof of death—made by the attending physician of deceased. He swore that the remote cause of death was alcoholism; that the immediate cause of death was alcoholism and extreme prostration ; that the deceased used spiritous liquors to the extent, and with the effect, that it caused death. The affidavit was handed to the company as giving the facts truly, and as against her it must be taken to be true, unless there is an explanation of a sufficient kind. Ho explanation was made, and on the trial there was an effort to show that the cause of death was not alcoholism. The policy was avoided by intemperance that had injured the health of assured. It is therefore immaterial that the cause of death was partly extreme prostration. The learned judge was correct in dismissing the complaint. Plaintiff’s exceptions overruled, and judgment upon order dismissing complaint directed for the defendant.


author: Duglio, J.

text:
    August Klipstein, Resp’t, v. New York Elevated Railway Company et al., App’lts.

      (New York Superior Court, General Term,

      Filed May 7, 1894.)

    'Trial—Jury—Elevated railroad.
    In an action against an elevated railroad for an injunction and damages, a refusal of a jury trial of the question of past damages, though they had heen assigned to plaintiff, is not error.
    Appeal from an order denying a trial by jury.

      Davies & Rapallo, for app’lts; John H. Parsons, for resp’t.
   Duglio, J.

The only question on this appeal is whether it was ■error to refuse a jury trial of the question of past damages, these damages having been obtained by the plaintiff through assignment. The principles stated in the cases of Shepard v. Man. Railway Co., 117 N. Y. 442 ; 27 St. Rep. 705, and Hunter v. Same, 57 St. Rep. 400, when applied to the question, necessarily lead to an affirmance.

Judgment affirmed, with costs.

V


text:
    William E. Nichols, Resp’t, v. Henry H. Balch, App’lt.

      (New York Superior Court, General Term,

      Filed May 7, 1894.)

    Bailment—Care .
    Where a person takes out a horse for trial and returns it in an injured state, he must show that the injury was either without bis fault or unavoidable.

      Appeal from a judgment in favor of plaintiff.

      Frederick IV. Sherman, for app’lt; Edward F. Dwight, for resp’t.
   Sedgwick, C. J.

The action was for damages from the negligence of defendant. The plaintiff was the owner of the horse, kept by him at Dickel’s stables, in Seventh avenue, near Fifty-Ninth street. There was a talk between plaintiff and defendant concerning the possible sale of the horse. The defendant said: ‘T am in need of a horse for my use in troop A ; and, if the horse suits me, I will either buy or rent it.” The plaintiff thereupon delivered the horse to defendant, to be tried and tested by him. The horse was returned to the stable with the larger bone of a leg, below the knee, broken. It became necessary, in a short time to kill him. The action was for the value of the horse, and expenses. The referee found for the plaintiff.

The defendant, when a witness on the stand, testified that, on riding the horse, he was excited, naturally, af first,—particularly, going under the elevated roads ; that it took him some time to get him under them ; that he caused him a good deal of trouble at almost every bicycle he met; that they met a good many of them up to Claremont;' that if they came too near he would rear, and he reared frequently; that between the bicycles the witness would quiet him by caressing him, and then, when he met a bicycle, he would rear again ; that he kept that up “ more all the way up than he did coming back that, at four or five miles from starting, he jumped him over a fence two or three feet high ; that the horse did not strike or injure himself any way, so far as the witness recollected; that he rode to Van Cortlandt park, turned, and came back through the Central park; that when the horse was about two-thirds of the way home he began to do nicely: that about one mile from the stables the witness preceived that the horse was lame, and lie dismounted and led him to the stable. On cross-examination the witness testified, in answer to the questions : Q. When you saw the horse getting frightened at the bicycles, why did you not take him off into some side street? A. That is not the way I do when I ride a horse. Q.. No matter what he did, you would still keep on the ride? A. I would either conquer him, or he would me. Q. Even at the expense of hurting the horse? A. Yes. Q. Ruining him? A. Yes. Q. Do you think you conquered the horse? A. Yes.

He testified, also, that the ride was about sixteen or seventeen miles long, and that at Van Cortlandt park he put on a curb bit, in case the horse should run away. The witness did not go to see the horse for two days, and did not communicate with the plaintiff until the same time. He said it was not necessary for a troop horse to be able to jump, but very desirable.

Ths referee was supported, by testimony in finding that the horse had been ridden many times in the streets, in the park, and in the ring of the stables, and had not manifested the unsteadiness and fractiousness shown on the ride taken by the defendant. There was evidence that the horse had been spirited, kind, and docile. It had been used out of the stable two or three days before the accident There were witnesses who testified that a horse might suffer wounds and fracture in the hands of a careful driver, who might not know or perceive such occurrences at the time, or for some time afterwards. The evidence was subject to sifting by the referee, in order to know its substance. The referee might competently find that such a thing occurred so very rarely that it was not probable that it occurred in this particular case, or, on the other hand, that the defendant subjected the horse to circumstances which lie should have known were likely to lead to an accident, at one point or another, which might turn out to have been unknown to him at the time. A veterinary surgeon testified that a fracture might be caused by a horse rearing and plunging upon a hard pavement, if the ‘founding ” -were heavy, and that the causes of fracture were violent efforts, jump, slip, and sudden muscular contraction. The plaintiff had raised, broken, and ridden horses all his life. The referee was justified in finding that, before the horse was taken out by the defendant, he was a spirited, docile, and kind horse. lie was not vicious. The counsel argue that the defendant, in using the horse, was bound to use ordinary care, and such care and attention as an ordinarily prudent man gives to his own property under the circumstances. An unpaid agent is hound, however, to use such skill as he is shown to possess, and is guilty of culpable negligence if he does not. Wilson v. Brett, 11 Mees. & W. 113, cited in Coggs v. Bernard, 1 Smith, Lead. Cas., 356, and elsewhere in the same leading case. At page 421 of the same volume, it is said that if a hired article is returned in a damaged state, and the hirer will give no explanation or account of the injury, there is an implication of negligence, and the burden of disproving it is on him. Logan v. Matthews, 6 Pa. St. 417. The referee was right in deciding that the defendant should account for the accident that caused the injury, and that it was without fault on his part, or that he should comprehensively prove that he used such ordinary care that the proper inference would be that the injury was unavoidable. When, prima facie, the injury did not probably occur when due ordinary care was taken, the burden of proof was upon the defendant to show, if possible, that he had taken the proper care. It was claimed that it appeared that the nature of tire injury showed that it might occur if care was taken in the management of the horse. This presented a question of fact. The evidence did not compel the referee to find that this particular kind of fracture might occur, in the usual course of things, without any want of care, and the fracture not to be known to the rider. The manner in which the defendant gave his evidence, the shape or form of the testimony, were things which the referee might consider. For instance, the defendant was asked, Q. So, far as you know, did the horse injure himself in any way? ” His answer was, “Hot as I recollect it.” Collins v. Bennett, 46 N. Y. 490; Fox v. Pruden, 3 Daly, 187. The defendant did not prove how or where the injury to the horse occurred. He did not prove that lie used such reasonable care that, the injury must have occurred in spite of that. The evidence on these subjects may have been conflicting, and the inferences from the testimony may have been diverse. There is nothing in the case that shows that the findings, of fact were erroneous, as matter of law. The referee might properly find that in the first part of the ride such excessive fractiousness was shown, and was continued, that it was not prudent to extend the trial that was allowed by the owner for the purpose of defendant’s ascertaining the character of the horse. It was not within the intention or purpose of either of the gentlemen that the trial should be of whether the defendant -could conquer the horse or not. Up to a certain time, it would be the case that it was doubtful as to what would be the future conduct of the horse; but the referee could find that, beyond that, it .might or should have appeared that to continue, and to take the horse further, in his excited and unruly state, was to increase the •danger to the horse beyond ordinary prudence. With the knowledge of the chances of accidental, and at the same time unknown, hurt to the horse, common prudence might have required that the horse should have been ridden home, and not be subjected to the dangers of a long course. On the whole the referee might have -competently .found that the defendant did not use the ordinary prudence of an owner-in riding and managing the horse, and that, "by the preponderance of the evidence, this want of prudence occasioned the injury to the horse.

Judgment affirmed, with costs.

All concur.


text:
    John C. Pegram et al., as Trustees, etc., App’lts and Resp’ts, v. New York Elevated Railway et al., Resp’ts and App’lts.

      (New York Superior Court, General Term,

      Filed May 7, 1894.)

    1. Damages—Elevated bailway—Conveyance.
    Where the owner oí an abutting lot, pending an action against an ele-, rated railway for an injunction and damage^, conveys the premises, the court may retain jurisdiction and award any relief to which he may, on trial, show himself entitled.
    "2. Same.
    But, in case he does not own the fee of the street on which his lot abuts, he is not entitled to an injunction, though he reserved in his deed all claims for damages in consequence of the construction and maintenance of such road.
    Appeal from a judgment granting in part and denying in part the relief demanded.

      Roger Foster, for pl’ffs; Davis, Short & Townsend, for def’ts.
   Freedman, J.

The judgment appealed from awards to the plaintiffs damages to the rental value of their premises, caused by the maintenance and operation of defendants’ elevated railroad in ■and through Pearl street for the period of six years prior to the commencement of the action, and until the 11th day of July, 1889, but disallows plaintiffs’ claim for damages from July 11, 1889, to the filing of the decision, and plaintiffs’ claim to injunctive relief, or to the recovery of fee damage in place thereof. The plaintiffs appeal from so much óf the judgment as denies their prayer for injunctive relief or the recovery of fee damage in place thereof, and for damages subsequent to July 11, 1889, and the defendants appeal from so much of the judgment as grants any relief to the plaintiffs.

The action was commenced about December 18, 1888, and thereafter, viz., July 11, 1889, the plaintiffs conveyed the premises in suit to Louis Shortemeir for the consideration of $38,000, reserving to themselves, however, in the deed executed by them and the said Louis Shortemeier, “ all damages and claims for damages now or hereafter caused said property, or the present or future owners thereof, * * * on account of the construction, .and the present, past and future maintenance and operation, of the elevated railroad in Pearl street,” etc. The court having obtained full jurisdiction over the cause of action as originally instituted, and at a time when the plaintiffs were clearly entitled to. equitable relief, it had the right to retain jurisdiction for the purpose of awarding to the plaintiffs any relief which at the trial they showed themselves entitled to, notwithstanding the conveyance executed by them during the pendency of the suit. Moreover, the defendants having failed to plead, by supplemental answer, the fact of such conveyance, and having further waived any right they might have had to object to the exercise of the equitable jurisdiction of the court by reason ■of the fact that in the court of appeals they consented to a reversal of the order of Judge Truax striking the case from the equity calendar, they are not in a position to question plaintiffs’ right to have the action determined on the equity side of the court. For the reasons stated, there was sufficient jurisdiction to award the damages which have been! awarded. On a review of the whole case, no error appears to have been committed, to the prejudice of the defendants, in the course of the ascertainment of such damages. The appeal taken by the defendants is therefore without merit.

The appeal of the plaintiffs presents a serious and difficult ■question. The plaintiffs did not own the fee of the street, and, on conveying the premises, they reserved no land to which the easements sought to be reserved could attach. In this respect their case differs materially from the case of McGean v. Met. El. Railway Co., 133 N. Y. 11; 44 St. Rep. 75, in which the judgment in favor of the plaintiff was sustained on the theory that the fee of one-half of the street had been reserved, together with the easements. It may seem unjust that the plaintiffs, after having sold their property for a less price, on account of the maintenance and operation of the elevated railroad, than they would have otherwise obtained, and having, upon such sale, expressly reserved the right to recover their, damages in this respect, should not be allowed to recover such damages in some way. They could have recovered such fee damage in this action if they had not conveyed the land, and the language of the reservation is so comprehensive that under it the defendants can be fully protected against any further claim on the part of the vendee or his grantees. But ■plaintiffs’ right to recover this fee damage under the reservation in question is quite doubtful, in view of the decisions of the court of appeals to the -effect that the easements of light, air, and access, when considered as detached from the land to which they are appurtenant, are of but' nominal value; that nominal damage is not sufficient to justify the court to grant injunctive relief; that fee damage cannot be awarded in a case in which no right to injunctive relief exists, and that injunctive relief can only be granted to prevent multiplicity of suits which might arise out of-continuing trespasses; that the fee damage cannot be recovered, once for all, in a common-law action, because the wrongful acts of the defendants constitute continuing trespasses, and it cannot be presumed that as such they will be continued for any definite length of time; and that the easements of the abutting owner invaded by an elevated railroad are appurtenant to his premises, and in the nature of things indissolubly annexed thereto. In Kernochan v. N. Y. El. R. R. Co., 128 N. Y. 559; 41 St. Rep. 110, it was expressly said that such easements are incapable of a distinct and separate ownership, that the owner of a lot cannot reserve them upon a sale, and that they must, of necessity, pass as appurtenant to the premises. Under these circumstances, the learned trial judge thought best to make special findings as to the fee damage and the rental damage from ,the time" of the conveyance to the filing of his decision, and then to decline to give to the plaintiffs any relief on account thereof, and he disposed of the case accordingly. We deem it expedient and wise to concur in this disposition of the case. The question involved is a new and far-reaching one, and cannot be determined in favor of the plaintiffs without-a departure from some of the principles laid down by the court of appeals as above stated. The departure can be made only by the court of appeals, and it is of the highest importance that a final determination of this new point should be had as speedily as possible.

The judgment should be affirmed on both appeals, but without costs.

All concur.


author: Sedgwick, O. J.

text:
    Paulina Ryshpan, Resp’t, v. Nathan M. Goldberg et al., App’lts.

      (New York Superior Court, General Term,

      Filed May 7, 1894.)

    Reformation—Mortgage—Parties.
    Reformation of a mortgage, after its assignment, cannot be decreed, unless the assignee is made a defendant.
    Appeal from a judgment in favor of the plaintiff.

      Edward N. G. Johnston, for app’lts; Isidor Hirschfield, for resp’t.
   Sedgwick, O. J.

The action was for the reformation of a bond and mortgage by changing the date for their payment. The plaintiff had judgment against both defendants, who now appeal from it. The plaintiff was the mortgagor. The defendant Nathan Goldberg was the mortgagee. He assigned the bond and mortfage to the defendant Manuel Goldberg. Among other defenses, fanuel Goldberg set up “that he is not the owner or possessor of the said bond and mortgage, or of either of them, and that one Mary Keheler is the owner thereof.” The judge found that this answer was true in point of fact. Mary Keheler was not made a party to the action. The plaintiff had no equitable cause of action against the defendants. The defendants had no interest in the bond and mortgage. They were not in their possession. The court could not compel them to produce the same. A judgment against them would have no efficacy. Correspondingly, the plaintiff had no substantial interest in procuring judgment against the defendants, nor had the conduct of the latter been wrongful in any way against the plaintiff, if that consideration were relevant. The judgment should be reversed.

Judgment reversed, and a trial ordered, with costs to appellants to abide the event.


text:
    Sarah Young, as Administratrix, etc., App’lt, v. Staten Island Rapid Transit Company et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed May 7, 1894.)

    Negligence—Pboof—Collision.
    A steamboat is not liable for a collision, in the absence of proof of negligence in not stopping in time to avoid it, where it, having the right of way, signalled an approaching tug, and, upon the latter’s not attempting to leave her a free course, stopped, but not in time to prevent the tug from colliding with her.
    The complaint was dismissed on the trial, and plaintiff’s exceptions were ordered to be heard in the first instance at general term.

      Fullerton & Scharps, for pl’ff; Tracy, Boardman & Platt, for def’ts.
   Sedgwick, C. J.

The action was under the statute for demages for the death of the intestate, that, as alleged by the complainant, bad been caused by the negligence of the servants of the defendants. On the trial the complaint was dismissed. The exceptions were ordered to be heard in the first instance at general term. , The collision occurred in the water in the harbor of New York. The defendant gave testimony that its steamboat was going down the river in a southwesterly direction. The tugboat, of which the intestate was a cook and was aboard at the time, appeared as she had just rounded the Battery, and was going in a northwesterly direction. Both had green apd red lights in the proper places, as required by the rules of the harbor. On seeing the lights of the tugboat, the steamboat whistled successively three times. She was a high steamboat,-with many lights. The tug did not see her or hear her, and did not attempt to leave her a free course. The defendant claims that it is evident that the tug was.in the wrong under the rules of navigation. 13 Stat 60, April' 29, 1864: “If two ships under steam are crossing, so as to involve risk of collision, the ship which has the other on her own starboard side, shall keep out of the way of the other.”

The tugboat had the steamboat on her starboard side. The defendants claim that they are not liable, because of the tug’s violation of the statute. The rule to be applied to a case in which there is a collision of the kind referred to is amply stated in Hoffman v. Union Ferry Co., 68 N. Y. 390. “The question is one of negligence on the-part of those in charge of the respective vessels, and the omission of either or both to conform to legislative enactments is but one of the circumstances to be considered in ascertaining the proximate cause of the injury, and if it appears that the injury was caused solely by the negligence or want of proper care and caution in the management of either of the vessels, and that the disregard of the statutory regulation did not contribute to the injury, directly or indirectly, the bare omission to comply with the statute will not bar an action by the injured vessel, if otherwise free from fault, again'st the one by whose neglect the injury was caused.”

The facts were that the course of the steamboat wag about souths westerly, and that of the tugboat was about northwesterly. While afar off, the steamboat, sighting the tug, gave the customary whistles. The tugboat did not answer. The steamboat went on until she came near the tugboat. If the collision happened then, it might be argued that it .was caused by the tugboat’s neglect of the rules for the navigation of the harbor. But, when near the tugboat, the steamboat stopped. At that point she was bound to use ordinary care, prudence, and skill to prevent a collision with the tug. The question then is, did the plaintiff prove that the steamboat neglected that duty? The captain of the steamboat was called as a witness by the plaintiff, and testified: “ I stopped and backed. I was, I suppose, 100 to 200 feet broad off from the tug yheri I began to stop my boat. I stopped the engines, and backed the boat. Stopped her still.” »

The testimony of the other witnesses on the point did not contradict or modify this testimony. The pilot of the tugboat testified that the steamboat had to move to strike the boat. This was upon the theory that the tug did not herself move on to contact with the boat. In fact, it appeared that after going at her usual speed, as she approached the steamboat in a sidling direction, she went at full speed. The captain of the tugboat, a witness for the plaintjff, testified: “ Q. Was she going at the time ? A. Ho, I guess she was stopped. I guess she must have been moving. Her engine had stopped, but she had some way on her. I will not swear that she was moving at all by the ground. She must have had some way on. If she had not, I don’t suppose she would have hit us. We were moving.”

Much of this does not speak of fact, but of inferences. The defendant did not call witnesses.

On the plaintiff’s case, I am of opinion that, after stopping and backing, the steamboat was not moving immediately before the collision. If this be not correct, then another fact that appeared in plaintiff's case must be considered. If the steamboat had been a few feet further away from the -tug, no collision would have taken place. Now, there was not proof that the use of ordinary diligence in selecting the point of stopping the engines of the steamboat would have resulted in the steamboat’s coming to rest short of the few feet that have been attested. There may have been no want of ordinary judgment. It was not proved that, under the circumstances, the pilot of the steamboat did not use the ordinary skill. One of these circumstances was that the tug was moving at the usual rate. This might have caused, without negligence, a mistake of a few feet. It must be kept in mind that the fact of the collision, by and of itself, does not prove that defendant was negligent.

The result being that the plaintiff did not show negligence on the part of the defendant, it is unnecessary to examine the other question in the case, as to whether the tugboat was negligent, and, if it was, as to whether thp,t would prevent a cause of action in the plaintiff because he was one of the crew. Plaintiff’s exceptions overruled, and judgment ordered for the defendant, with costs. All concur.


author: Per Curiam.

text:
    Henry Zlotovsky, by Guardian ad litem, etc., App’lts, v. Twenty-third Street Railway Company, Resp’t.

      (New York Superior Court, General Term,

      Filed May 7, 1894.)

    Negligence—Contributory—Child.
    Where a child sui juris is guilty of negligence which contributed to his injury, his complaint in an action to recover therefor is properly dismissed.
    Appeal from a judgment entered on the dismissal of the complaint, and from an order denying a motion for a new trial.

      M Alimayer, for app’lt; Robinson, Biddle & Ward, for resp’t.
   Per Curiam.

The action was brought to recover damages for injuries received in being run down by one of defendant’s cars. At the time of the injury the plaintiff was about fourteen years and ten months of age, and a messenger boy in the employ of the American District Telegraph Company. He was clearly sui juris. His complaint was dismissed at the trial because it appeared affirmatively that he had been guilty of negligence which contributed to the injury. The learned trial judge, on making this ruling, stated his reasons at length for holding as he did, and they were justified by the state of the evidence. It is not necessary to restate them here. The complaint was therefore properly dismissed. The judgment and order should be affirmed, costs.


author: White, J.

text:
    City of Buffalo, App’lt, v. Peter Smith et al., Resp’ts.

      (Buffalo Superior Court. General Term,

      Filed May 3, 1894.)

    Municipal corporation—Ordinance—Burden.
    In an action by a city for violation of an ordinance prohibiting concerts in a place licensed to sell liquors, without payment of fee for such privilege, the city must prove that the fee was not paid. '

      Appeal from a judgment dismissing the complaint.

      George M. Browne, for app’lt; William Armstrong, for resp’ts.
   White, J.

The defendants are the proprietors of a saloon at ¡No. 492 Michigan street, in this city, licensed to sell ale, beer and liquors at retail. By the ordinance in question it is, among other things, provided that no person shall carry on a place operated under a license for the sale of ale, beer, and liquors at retail in which concerts or entertainments consisting of singing and music only are allowed, until they shall have paid to the city the sum of $50 a year as a fee for the privilege of giving such concerts or entertainments. The defendants have a sitting-room which adjoins their bar-room, and in this sitting room there is a piano. The offense charged against the defendants is that on a certain evening in August last, between 9 and 10 o’clock, the defendant Decker played a tune upon that piano, and that two ladies and one gentleman sat with the defendants in the sitting room and listened to the music. The dismissal of the complaint by the municipal court was right, for two reasons: First. It was incumbent upon the city to prove that the concerts or entertainments in theirsaloon, assuming that the performance of Decker constituted a concert or entertainment, within the meaning of the ordinance, before it could ask for a conviction at the hands of the court, and no evidence tending to prove that fact was offered. ¡No presumption existed in favor of the city that the fee had not been paid, or that the defendants were violating a penal statute or ordinance. The burden of proving that the defendants had been guilty of a wrongful act was on the city. Blutz v. Rohrbach, 116 N. Y. 450; 27 St. Rep. 484. Second. The performance by the defendant Decker was not a concert or entertainment, within the meaning of the ordinance. The two words “ concert ” and “ entertainment,” as used in the ordinance, are, as we think, intended to describe the same thing, namely, a public performance of music in which several singers or instrumentalists or both participate; or at any rate a public performance of music, intended to secure patrons for the saloon. A song, or performance upon a musical instrument by the proprietor of a saloon, not intended to draw or secure an audience from the public, is not a violation of any law ; nor can it be said that the peace and good order of society requires the suppression of the musical instinct in the particular class of individuals who may be engaged in the business of selling ale, beer, and liquors at retail. For aught that appears from the record in this case, the musical performance complained of by the city may have been private and devotional, and intended only for the immediate families of the defendants.

The judgment appealed from should be affirmed, with costs.

All concur


author: Per Curiam

text:
    John Dye, Resp’t, v. Delaware, Lackawanna and Western Railroad Company, App’lt.

      (Buffalo Superior Court, General Term,

      Filed May 3, 1894.)

    Appeal—Reversal—Effect of.
    The court of appeals, in not reversing a case on the merits, must be understood as holding the evidence sufficient to authorize a recovery.
    Appeal from a judgment in favor of plaintiff.

      Rogers, Locke & Milburn, for app’lt; Smith & Weaver, for resp’t.
   Per Curiam

This action is for negligence of the defendant. The plaintiff was injured while coupling cars on the defendant’s road. The cause has once been before the court of appeals on an appeal by the defendant from a judgment rendered on the verdict of a jury in favor of the plaintiff, 130 N. Y. 671; 41 St. Rep. 690, and was there reversed upon the sole ground that error was committed in the admission of evidence upon the trial, and not upon the merits. As the case now stands, it is precisely as it was before the court of appeals, except the error complained of there is not in the case. As to the exceptions taken on the trial to the admission of evidence and to the charge, no point is made by the defendant’s counsel in his brief that any error was committed, nor is it suggested that the judgment should be reversed on that account, but it is insisted that the plaintiff is not entitled to recover upon the evidence. We think the court of appeals, in not reversing the case on the merits, must be understood as holding the evidence sufficient to authorize a recovery, and, as the main facts in the case áre the same here as when it was before the court of appeals, the judgment and order appealed from should be affirmed, with costs.