text:
    Eugene Smith, as Executor of, etc., of Richard Patrick, Deceased, Resp’t, v. Frederika Rentz, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    1. New trial—Surprise.
    New trial, on the ground of surprise, cannot he granted; the only surprise consists in the fact that the evidence should not have been held sufficient.
    2. Same—Newly discovered evidence.
    New trial, on ground of newly discovered evidence, will not be granted where counsel knew before the trial the facts upon which he bases his motion.
    3. Same—Affidavit.
    Nor will a new trial be granted where the testimony, upon which the motion is based, could, with reasonable care, have been obtained and presented on the trial.
    Appeal by defendant from an order setting aside the report of a referee and granting a new trial.

      Leopold Leo, for app’lt; H. B. Closson, for resp’t.
   Parker, J.

The action was for money paid by the plaintiff’s testator to the defendant’s use. The complaint alleged that Mr. Patrick had been for a number of years prior to his death the banker and general business agent of the defendant; that during this time she deposited moneys with him, and he, at her request, paid moneys to her and for her account, particularly her tax bills, bills of tradesmen and others incurred in the maintenance of her household; and that when he died, the total of the sums thus expended exceeded the sums received from her by $3,774.75. The answer put in issue the averments of the complaint The action was first tried before a referee, whose finding in favor of the plaintiff was mainly based on the statement of account appearing in the ledgers of plaintiff’s testator. The judgment was subsequently reversed by the court of appeals, on the ground that the admission of testator's books in evidence was error. 131 N. Y., 169 ; 42 St. Rep., 879. A new trial was had before another referee, who disallowed certain items claimed by the plaintiff, aggregating about $1,100. In his opinion, he assigned the following reason for his determination in such respect: “ The only witness who testified in support of them is John H. Patrick, and it is plain that he does not speak from personal knowledge, but that his testimony rests upon entries in the decedent’s books, which are not in evidence.”

If the referee was in error, plaintiff had an adequate remedy by appeal. Instead, he moved at special term for an order setting aside the report of the referee and for a new trial. The attorney for the moving party, in his affidavit, on which in part his motion was based, made the following statement: “ Upon receiving the referee’s report and opinion, I was utterly dumbfounded to find that, though finding in my favor on every other issue submitted to him, he had disallowed some $1,100 of taxes on the defendant’s property paid by the testator, on the following grounds, as stated in his opinion : (Here affiant quotes from the opinion of the referee as we have above, and continues): I had known from Mr. John H. Patrick, ever since the commencement of the action in 1888, that he, in point of fact, had personal knowledge of these payments, for the simple reason that in most cases he himself had drawn the check that paid them, and in every case had made the payment himself, either taking the check to the office himself, or himself sending it there by mail or messenger; and I knew that he had used and needed to use, the memoranda made by himself at the time, only to refresh his recollection after the lapse of eight or ten years as to the precise figures of the payments, whether a given check was for $210 or $211, for instance.”

The general rule is that parties to legal proceedings are required to use attention and diligence in the proper preparation of their causes for trial; and if either fails to do that, and consequently is defeated in whole or in part, when he might otherwise have succeeded, the fault is his own, for which the courts can ordinarily supply no remedy. An exception to the rule is where the conduct of the opposing counsel is such as to mislead counsel. Illustrations of the exception may be found in Chamberlain v. Lindsay, 1 Hun, 231, and Bank v. Adams, 666. In each of the foregoing cases, in response,to inquiry by counsel, his opponent made such answers as would naturally have deceived the inquirer. That was not the case here. Plaintiff made no inquiries of the defendant touching the items which the referee found he failed to establish by evidence; and defendant did not suggest that the proof was sufficient, or that the items were not to be seriously contested. Nor does plaintiff show that defendant did any act which was prejudicial to him. On the contrary, it distinctly appears from his affidavits that he was in possession of the facts which he could have proved and did not, probably because he though the evidence introduced was sufficient to entitle the plaintiff to recover the items. The situation is one to which a remark in Forster v. Easton, Sup., 2 N. Y., Supp., 772; 19 St. Rep. 447, is applicable:

“ The claim of surprise at bar, said the court, would seem to have been occasioned rather by the final decision than by anything in the proceedings on the trial.”

Plaintiff was not entitled to a new trial on the ground of newly-discovered evidence. According to the affidavit of his counsel, it appears that he knew before the trial that his witness had personal knowledge of the facts which led him to move for a new trial in order that he might prove them. ■ The additional claim was made' that certain checks of testator bearing on the subject had been discussed; but he does not say that he made any effort to find them before the trial, or that he could not readily have found them had he deemed it of importance to put them m evidence. They were in his client’s possession all the time, and the mere statement that they were discovered after the trial was not sufficient to grant the plaintiff a new trial. The inference fairly deducible from this statement, considered in connection with the rest of the affidavit, is that the real discovery made after the trial was that the checks were important as evidence. It is the rule that a new trial will not be granted on the ground of newly-discovered evidence, where the testimony upon which the motion is based, with reasonable care, could have been obtained and presented at the trial. Dillingham v. Flack, (Sup.), 17 N. Y. Supp., 867; 43 St. Rep., 810. The rule is a wholesome one, and should be observed. Not to do so is to encourage careless preparation for, and unskillful presentation on the trial, resulting in useless annoyance and additional expense to both suitors. As the order was improperly granted, the judgment resulting from the new trial was unauthorized. The judgment should be reversed, with costs. The order appealed from should be reversed, with ten dollars costs, and the motion for a new trial denied, with ten dollars costs.

Yah Brunt, P. J., and O’Brien, J., concur.


source: Caselaw Access Project

author: Follett, J.

license: Public Domain

text:
    Ephraim Drucker, Resp’t, v. Metropolitan Elevated Railway Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    1. Elevated Railway—Damages.

      A refusal to find a request, in an action by an abutting owner against an elevated railway, that the easements appurtenant to the lot taken for railway uses have only a nominal value, though technically erroneous, is. harmless, where it appears from the findings of the referee that he did not award damages for the supposed value of the easements in themselves.
    2. Evidence—Elevated bailway.
    In an action by an abutting owner against an elevated railway, testimony as to what real estate men told witness as to values of land is incompetent.
    3. Same.
    Where evidence, clearly hearsay and incompetent, is first called out by ■ a party on cross-examination, he cannot complain that his adversary is-permitted to elicit the particulars from such witness.
    Appeal by defendant from a judgment in favor of the plaintiff, entered on the report of a referee.

      Davies, Short & Townsend {R. L. Maynard, of counsel), for app'Its; Foster & Adeley {Roger Foster, of counsel), for resp’t.
   Follett, J.

Since April 28, 1887, the plaintiff has been the owner in fee of a lot fifty feet square, situate on the northeast comer of South Fifth avenue and Grand street, but he does not own the fee of any part of either street. ■ On this lot is a briclc building, the first floor of which is occupied by stores and saloons,. and the upper floors mainly as abiding places for persons occupying rooms. The defendants’ elevated road extends through South Fifth avenue in front of the plaintiff’s premises, and at the corner of the avenue and Grand street the defendants maintain a station for passengers. This action was begun June 11, 1890, to recover damages for the diminished rental value of the property since the plaintiff became its owner, caused by the operation- of the road, and for an injunction restraining its future operation. The liability of the defendants for the damages .caused, if any, is not denied; but it is alleged that by the construction and operation of the road, with a station at that place, the value of the property has increased, and also its rental value. The referee found that the rental value from April 28, 1887, to February 25, 1893, the date of his report, was diminished by $1,536.86, or at the rate of about $22 per month. He also held that the plaintiff was entitled to an injunction restraining the operation of the road unless the defendants paid to the plaintiff $4,500 for the decreased value of the property.

The main point relied on for a reversal of the judgment is that the damages awarded, both rental and fee, are excessive. After reading the record, we are of the opinion that this position is untenable, and that the evidence is sufficient to sustain the report, in this respect. The referee was asked by the defendants, but refused, to find : “ (12) These said easements appurtenant to the plaintiff’s land, taken for the said railway uses, aside from any damages to said land, from the said taking, have, in themselves, only a nominal value.”

This was a technical error, but it is apparent that the defendants were not harmed thereby. The referee found: “ (9.) That, by the injuries done and committed by the defendants as aforesaid, the rental value of the plaintiff's said premises has been damaged, over and above any benefit resulting from the construction, maintenance and operation of the defendants’ railroad and station, to the amount of two hundred and sixty-five dollars ($265) per year from April 28, 1887, to the date of this report, or in the total of one thousand five hundred and thirty-six and 36-100 dollars, ($1,536.86). (10.) The value of the easements of light, air, and access of the plaintiff in South Fifth avenue, appurtenant to to the premises above described, taken, appropriated, and used by the defendants in the maintenance and operation of said elevated railroad and station, and the damage to the fee value of plaintiff’s said property in consequence of such taking, appropriating, and use, is the sum of four thousand five hundred dollars ($4,500) over and above any benefits resulting to said premises from the construction, maintainance, and operation of said railroad and station.” “ (22.) The existence and operation of the defendants’ railroad in South Fifth avenue, together with the station at South Fifth avenue and Grand street, has rendered the premises in suit far more accessible than they otherwise would be." He held as a conclusion of law: “ (3.) Plaintiff is not entitled to recover damages in this action, except to the extent, if any, by which the disadvantages of the defendants’ railroad have exceeded the advantages thereof to said premises." By the three findings quoted, which are quite consistent with the other facts found, and the conclusion of law, it is apparent that the damages awarded were consequential, only, not for any supposed value of the easements, in and by themselves, aud that the benefits resulting to the property by the construction and operation of the road and its station were considered and taken into account in assessing the damages.

Victor Levi, a real estate agent, sworn in behalf of the plaintiff as an expert in real estate and rental value, testified on his cross-examination :

“ About 1870 to 1872 or ’73, there was a considerable of a boom in South Fifth avenne property. There was talk about that time among real estate men, of South Fifth avenue becoming a second Broadway."

On the redirect examination the following occurred:

“ Q. Please state all that was said in your hearing in regard to South Fifth avenue becoming a second Broadway, as testified by you in your cross-examination ? (Objected to as incompetent, immaterial and irrelevant, calling for hearsay evidence, and improper. Objection overruled. Exception' by defendants.) A. Well, the different hat and cap men were coming into South Fifth avenue, putting up buildings, and they were immediately occupied; and owners and speculators sáid and told me at the time that they expected that the lots on South Fifth avenue would be as high as Broadway would be, on account of its being a continuous street, running through from Chambers street up through the city, and in consequence of its breadth.”

It is difficult to see why the opinion of real-estate men called out by the defendants in the first instance wás important, but, if the general statements were relevant, the particulars were not irrelevant. It is urged that the ruling above set forth was error. The evidence was clearly hearsay and incompetent, but it was first called out by the defendants, and they cannot complain- that the plaintiff was permitted to give the particulars. The other exceptions to the rulings upon the trial require no comment. The judgment should be affirmed, with costs.

Van Brunt, P. J., concurs in result; Parker, J., concurs.


author: Van Brunt, P. J.

text:
    Ludwig Baumann, Resp’t, v. Elizabeth Moseley, as Administratrix of Joseph B. Adamson, Deceased, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    1. Contract—Entire.
    The contract, where goods are ordered upon different days and delivered upon different days, is not an entire one.
    3. Sale—Statute op Frauds.
    The acceptance and receipt of part of the goods by the purchaser under an oral contract of sale takes the case out of the Statute of Frauds.
    3. Same—Rescission.
    The taking possession and removal by vendor of a portion of the goods sold, after death of vendee, do not operate to rescind the contract.

      Appeal by defendant from a judgment entered by order of the court, in favor of the plaintiff, on the report of referee upon the reference of a disputed claim against the estate of Joseph B. Adamson, deceased, and from an order confirming the same.

      Henry L. Brant, for app’lt_: Shepard & Prentiss ( W. H. Shepard, of counsel), for resp’t.
   Van Brunt, P. J.

This was a special proceeding upon a disputed claim against the estate of Joseph B. Adamson, deceased, referred pursuant to the statute. The plaintiff is a furniture dealer in this city, and in the months of April and May, 1888, claimed to have sold and delivered to Joseph B. Adamson, the defendant’s intestate, a considerable quantity of goods. Before all had been delivered, Adamson died. After his death the plaintiff seems to have continued to deliver the goods, on the day of his death and two following days. Some days after the delivery of all the goods and the decease of Adamson, the plaintiff obtained possession of the apartment at which this furniture had been delivered, and removed therefrom certain of the goods. The referee in his report found that the plaintiff had converted the goods which he had thus removed, and allowed the claim only for the balance; and from the judgment thereupon entered this appeal is taken.

It is urged that the plaintiff’s alleged contract with the defendant’s intestate for the sale and delivery of the goods in question was an entire contract, which" the plaintiff had never completed ; and, if this contention were supported by the evidence, it would undoubtedly be a good answer to the claim now presented. But, upon an examination of the evidence, we fail to find any proof that the contract was an entire one. On the contrary, it seems that these goods were ordered upon different days, and delivered upon different days, and that the goods which were not delivered were not ordered by the deceased at all, but were ordered on the 2d of May, by the woman with whom he was living in this apartment, and who had been with him at the time the orders for the other goods were given. The only portion of the goods ordered upon any one day, and not actually delivered, was a mat, which was taken to the premises and brought back again by the messenger. As for the goods which were ordered on the 2d of May, if they had been delivered after his death at these premises, it is exceedingly doubtful whether any recovery could have been had for them, because there is no proof that they were ordered by Adamson or with his consent. There is therefore no ground for the claim that the contract was an entire contract.

It is also urged that the plaintiff’s alleged contract is void, under the statute of frauds; that the value or price of the goods was more that fifty dollars, and, there being never a complete delivery and acceptance of all the goods, and nothing paid on account, and no agreement, note, or memorandum in writing subscribed by the deceased or his agent, the statute applies. But, in considering the elements necessary to take a transaction of this kind out of the statute of frauds, the learned counsel has omitted one important factor. The statute reads : “ Every contract for the sale of any goods, chattels or things in action for the price of fifty dollars or over shall be void * * "x" (2) unless the buyer shall accept and receive part of such goods, or the evidence or some of them of such things in action.” How, in the case at bar, the greater part of the things sold had been delivered and accepted by Adam-son before his death, which clearly took the case out of the statute of frauds.

The point is further raised that the plaintiff elected to treat the contract as rescinded; that he made no efforts to enforce the contract, no demand of payment, no option was given to the intestate’s representative, and that neither the defendant nor her intestate was ever put in default in any way. It appeared that a demand of payment was made when the plaintiff presented his claim against the estate, and that this was the proper way for the plaintiff to begin proceedings for the enforcement of his contract after the death of Adamson. The taking possession of the goods, and the removal of such as were removed by the plaintiff after the death of Adam-son, was undoubtedly a trespass. But he had no power to rescind the contract, and when he was charged for the full purchase price of those goods, he received some just punishment for his temerity.

The points presented for our consideration do not seem to have been well taken, and the judgment and order appealed from should be affirmed, with costs.

Follett and Parker, JJ., concur.


author: Parker, J.

text:
    In the Matter of the Will of Martha K. Peaslee, Deceased.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    1. Will—Revocation of fbobate.
    A legatee, who has received payments on account oí his legacy, cannot maintain a proceeding to revoke probate of the will without refunding such payments.
    3. Same—Jurisdiction.
    The surrogate has jurisdiction, under § 3647 of the Code, to determine whether the petitioner is within the statute.
    Appeal from an order of the surrogate's court denying application for the revocation of the probate of a will,

      Arnoux, Bitch & Woodford (William H. Arnoux and John B. MacArthur, of counsel), for app’lt; Bobert Hunter Me Qrath, Jr., and Daniel Q. Bollins,-tor resp’ts.
   Parker, J.

By a decree of the surrogate’s court of Hew York, dated January 25, 1892, there was admitted to probate an instrument adjudged to be the last will and testament ef Martha K. Peaslee. It contained a bequest to Frances M. Peaslee, a daughter of the testatrix, on account of which the executors made payments to her on the dates and in the amounts following: January 28, 1892, $2,500; May 24, 1892, $4,500, in all, $7,000. Subsequently, and within the time allowed by law, Frances M. Peaslee filed a petition in the surrogate’s court of New York, praying for a revocation of the probate of such will, Citations were thereupon issued. The executors, appearing in response thereto, answered that they had made the payments above referred to; that the petitioner had not refunded, nor offered- to refund, the same; and demanded a dismissal of the proceeding.

It is a well settled, proposition in law as well as in equity that he who accepts and retains a benefit under an instrument, whether deed, will, or other writing, is held to have adopted the whole, and to have renounced every right inconsistent with it. The rule has found expression in many actions, and with widely differing facts. A few of them only will be referred to. In Chipman v. Montgomery, 63 N. Y., 234, which was an action in the supreme court to obtain a judicial construction of a will, and for an accounting, Judge Allen, speaking for the court, said: “ Two of the plaintiffs have received, in whole or in part, the- legacies given them by the will, and, having accepted the benefit of the provision made for them, cannot be heard in opposition to other parts of the instrument, except by proof of circumstances showing that they had not intelligently elected to take under the will, rather than in opposition to it, and a return of all that ‘has been received by them.’ ” ' And he quoted with approval Lord Redesdale’s decision in Birmingham v. Kirwan, 2 Schoales & L., 444, that this rnle of election is applicable to every -species of instrument, whether deed or will, and to be a rule of law as well as equity. The rule is also asserted in Havens v. Sackett, 15 N. Y., 365.

In Mills v. Hoffman, 92 N. Y., 181, which was an appeal from a decree of the surrogate’s court compelling an administrator to account, the objection overruled by that court was that the petitioner was barred, because of an entry of judgment, in which she was a party defendant, although an infant, and the subsequent distribution of the estate in pursuance of the judgment, by which the moneys came into the hands of her guardian, and upon her majority to her. After this latter event, the judgment was vacated and set aside as to her, on the ground that the appointment of a guardian ad litem to represent her had been irregular, and the court of appeals held that she was estopped from controverting in the surrogate’s court the judgment under which she had received benefits. In re Soule's Will (Surr.), 3 N. Y. Supp., 259; 11 St. Rep., 695, the right of a legatee who had received moneys under a will to claim revocation of probate without making full restitution to the executors was denied. Numerous cases have arisen under wills where this principle has been applied. Hamblett v. Hamblett, 6 N. H., 333 ; Van Duyne v. Van Duyne, 14 N. J. Eq. 49 ; Weeks v. Patten, 18 Me., 42 ; Smith v. Guild, 34 Me., 443; Hyde v. Baldwin, 17 Pick., 303; Smith v. Smith, 14 Gray, 532; Bell v. Armstrong, 1 Addams’ Ecc., 365; Braham v. Burchell, 3 Addams’ Ecc., 243.

The learned counsel for the appellant, while citing no authorities asserting a contrary proposition, has carefully analyzed and elaborately discussed nearly all the cases we have cited, in order to make it appear that they are distinguishable from the case at bar. In their facts they are different from this case, and they differ from each other,but they all tend to make good the assertion which may be found running through the books, that he who receives money or property or a benefit of any kind under an instrument, whatever its character, or his relation to the maker of it, cannot question the instrument, in whole or in part. But the appellant urges that the reason for the rule does not apply in this case, and, therefore, the rule should not obtain. Here he says no injury can result to the executors, or any one else, because the petitioner is permitted to contest the will while retaining the $7,000' which she received from the executors, because, if the will be set aside, she, as one of the next of kin, will be entitled to receive a larger sum of money than $7,000, and, therefore, the executors can be amply protected by the surrogate. It may be true that, if the contest should proceed, it would so turn out; but of that we are not assured. It does not appear that, should the petitioner be successful in her contest, as a result her mother’s intestacy will be established. There may be other and prior wills in existence, the validity of one of which may be established, with the possible result that the petitioner will not receive thereunder a legacy sufficient in amount to make good the advancement to her by these executors. Certainly, the contrary cannot be safely assumed. The fact, that the petitioner received this money, and expended it before becoming aware of the facts which encourage her to enter upon a contest of the will, may, perhaps, be unfortunate for her. If misfortune it be, it arises, of course, from the necessities which induced her to expend the money. Y^here a person asks that a rule be not applied, on the ground that the reason upon which it is founded is not present, the burden rests upon him to establish clearly the facts which he relies on to support his contention. The petitioner took the money and used it, and until she puts the parties in a position where, whatever the result may be, no one can be the .loser because of the payments originally made to her, she is not in a situation to attack the will.

But the appellant urges that, granting the existence of the principle contended for, and its applicability to the petitioner’s situation, still the surrogate’s court, not being a court of equity, was without authority to determine the question. Section 2674 of the Code, which provides who may petition for the revocation of a will, confers, we think, upon the surrogate's court, the authority to pass on the proposition presented here. It does not provide that any one of the next of kin may, within one year, petition for a revocation of the probate, in which event the proceedings described in that and the following sections shall be had. On the contrary, it provides that “a person interested in the estate of the decedent may * * * petition. This clearly means that the person making the application must have a substantial interest in the result at the time he files his petition. The fact that he is one of the next of kin is not sufficient, if, by assignment or otherwise, he has disabled himself from sharing in the estate should the will be revoked. The aim of the statute is not to encourage vexatious contests, but to secure to a party who, but for the will, would receive a larger share of the estate than bequeathed to him by it, a year in which to ascertain all the facts surrounding its execution, and to determine whether to assume the responsibility of making a contest. In order to avail himself of the privilege thus afforded, he must be in such a position that he is “a person interested in the estate.’1 That such is the purpose of the statute seems to be apparent from the mere reading of the provision; but, if doubt remains, it must certainly give way after a comparison of the section with the provisions of the Revised Statutes which it stands in the place of, 3 Rev. St.. (6th Ed.) p. 61, §§ 27-29. Those sections provide that “any of the next of kin to the testator may, at any time within one year after such probate, contest the same.” It will be observed there was no restriction placed upon the next of kin whatever. According to its terms, one of the next of kin, although he might have disposed of his interest in the estate, or by other acts placed himself in such a position that he could not share therein, might still carry on a contest, which would greatly annoy, and perhaps result in considerable injustice to, others. The change in the statute was intended, doubtless, to do away with the opportunity thus afforded for mischievous contests. Its beneficial features were retained, the right to make application for a revocation of the will being limited to those only having a present interest in the estate; necessarily, therefore, the statute confers upon the surrogate the right to determine, before preceding with a contest, whether the person presenting the petition is “ a person interested in the estate of the decedent.3’' If from the facts before him it appears, as it did in this case, that under well-settled rules of law the petitioner is es- . topped from claiming in hostility to the will, then it necessarily follows that he must determine that the petitioner cannot be allowed to proceed further in the direction of revocation because of a want of interest in the estate of the decedent.

The order should be affirmed, with costs and printing disbursements.


text:
    In the Matter of the Estate of Partick J. Keenan, Deceased.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    Evidence—Presumption.
    To fortify the presumption of payment from great lapse of time, testimony that the debtor has been in good, and the creditor in poor, circumstances, during such time is admissible.
    Appeal by the administratrix from an order directing her to pay a creditor’s claim against her intestate’s estate.

      D. A. SpelUsy, for app’lt; W Stainton, for resp’t.
   Van Brunt, P. J.

It appears that on the 16th of April, 1878, the petitioner, John Looram, obtained a judgment against Patrick J. Keenan, since deceased, in the marine court of the city of New York, for $378.81, a transcript of which judgment was duly docketed and filed in the office of the clerk of the city and county of New York upon the same day, and an execution issued thereon. The said Keenan having died in 1891, letters of administration were duly granted upon his estate to the appellant, Esther Keenan. The respondent having presented his petition for the payment of his claim to the surrogate’s court, and a citation having been issued by said court directing the administratrix to show cause why the claim should not be paid, the administratrix interposed an answer, and the surrogate’s court referred the question to a referee to take proofs with respect to the payment of the whole or any part of the judgment upon which the claim was based, and to report the same with all convenient speed, with his opinion thereon. •

The referee having reported that the claim had not been paid, the surrogate’s court made an order confirming the report qf the referee, and adopting his findings of fact and conclusions of law, and ordering and adjudging the administratrix to pay the respondent the amount of said claim. An application having been made for a rehearing, and denied, the administratrix appeals to this court.

The judgment in question, at the time of the death of Keenan, had been docketed for nearly twenty years; and it was attempted to be proved upon the part of the administatrix that during all this period of time the alleged judgment debtor had been in good circumstances, and the judgment creditor had been in poor, circumstances, as bearing upon the question of a presumption of payment. This evidence was excluded by the referee, (which exclusion was duly excepted to,) upon the ground that the court cannot indulge in such presumption, relying upon the case of Daby v. Ericsson, 45 N. Y., 786, asan authority for this proposition. This case undoubtedly seems to . sustain the ruling of the referee, but later cases have established a different rule, notably that of Bean v. Tonnele, 94 N. Y., 381. In that case th'e court say:

“ The presumption of payment from a great lapse of time is founded upon the rational ground that a person naturally desires to possess and enjoy liis own, and that an unexplained neglect to enforce an alleged right for a long period casts suspicion on the existence of the right itself. This presumption may be fortified or rebutted by circumstances. The fact that a plaintiff during the period when he might have enforced his demand by suit, if he had one, was in indigent circumstances, and needed the use of his means, is, we think, a circumstance tending to fortify the presumption that the demand has been paid or otherwise satisfied.”

This principle laid down in the case cited hds been approved in several later cases, and seems to be the one now prevailing in this state. It was therefore error to reject the evidence and to refuse to consider the presumption.

The decree should be reversed, and the proceedings remitted to the surrogate’s court for a new trial, with costs to the appellant to abide the event.


author: Tan Brunt, P. J.

text:
    Beverhout Thompson, App’lt, v. Annie Stanley, as Adm’rx of etc., of David A. Stanley, Deceased et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

      i. Coefobations—Action.
    In an action by a party as stockholder, in behalf of a corporation, for its property misappropriated by its president, no presumption arises, from the fact that he had been, at the time, a stockholder, where it appears that he had transferred his stock, that,he was still a stockholder, because he alleges in the complaint that such transfer was obtained without consideration, or by false representations.

      % Same—Evidence.
    A person does not show himself to be a stockholder in a corporation by introducing a certificate of stock, issued to another, where there is no proof going to establish a transfer to him of such stock by a person having the ownership thereof.
    Appeal by plaintiff from a judgment dismissing the complaint.

      L. Karge, for app’lt; Dill, Chandler & Seymour {.F Seymour of counsel), "for resp’ts.
   Tan Brunt, P. J.

This action is brought by the plaintiff, claiming to be a stockholder of the defendant corporation, on its behalf, to recover from defendant Stanley, as administratrix, the proceeds of certain assets of the defendant corporation alleged to have been fraudulently misappropriated by her intestate while president of said corporation. In his complaint, the plaintiff alleged that in or about the year 1882 he subscribed for and purchased 138 shares of the capital stock of said corporation, and a certificate thereof was duly issued to the plaintiff, who became the owner thereof, and that the deceased, David A. Stanley, who “ then owned or controlled the greater part of said corporation, was acting as its president and manager, and controlling its affairs, represented to plaintiff that said corporation had determined to close up its business, and divide its assets among the stockholders entitled thereto, and, in order to facilitate the same, requested plaintiff to give to him, said Stanley, the control of plaintiff’s stock, stating that it would hasten and facilitate the closing up of the affairs of the corporation, and the realization by plaintiff of the share of its assets to which plaintiff was entitled, and promised and agreed if plaintiff would do so, to wind up the affairs of said corp ¡ration, sell its property, convert its assets into money, and that plaintiff should receive the proportion to which" he was entitled.” The complaint further alleges that the plaintiff, being “ignorant as to the management and affairs of said corporation, and relying on the statements made by said Stanley, deceased, as aforesaid, did, in or about the month of February, 1886, execute to said Stanley an assignment of said one hundred and thirty-eight (138) shares of stock of said corporation, belonging to plaintiff as aforesaid; that plaintiff did not at that time, or has he ever, received any consideration whatever for said assignment of said stock, nor has said Stanley ever accounted to plaintiff, or paid him anything whatever for his stock or interest in said corporation and its property.”

The complaint then alleges the ownership by defendant corporation of certain valuable property, the appropriation of same to his own use by Stanley, the mismanagement of the affairs of the corporation, its cessation of business, and that since 1886 it had transacted no corporate business. It further alleges the death of Stanley, and the appointment of the defendant Annie Stanley as administratrix, and prays that she, as administratrix as aforesaid, be directed to account for the money, property, and rights of said corporation received by said Stanley, deceased, or in any. manner retained by him, and that said “ corporation defendant be required to account for any property, money, or interest, if- any, belonging to it, or in its control; that plaintiff be decreed entitled •to, and to be paid, the amount he may be found entitled to receive from said defendants, or either of them, and that the plaintiff may have such other or further relief as may be just and proper.” The defendant Annie Stanley, by her answer, substantially denied all the allegations of the complaint, and alleged ownership in said Stanley, deceased, of said 138 shares of stock. Upon the trial, after the plaintiff had attempted to prove that he was a stockholder of said corporation, and after he had stated to the court that he had no further evidence to give upon that point, the court stopped the trial, and dismissed the complaint, upon the ground that the plaintiff had not shown himself to be a stockholder, and from the judgment thereupon entered this appeal is taken.

We see no errror whatever in the rulings made by the court below. The complaint showed that the 138 shares of stock which the appellant claimed to own had been transferred to Stanley; the allegation being that such transfer had been induced by false representations of Stanley, and without consideration. No evidence whatever was attempted to be offered to support this allegation. All that the plaintiff did prove was, by the production of a certificate of stock from the papers of the corporation, and marked “Canceled,” that 138 shares had been issued to him; that he had signed a blank power of attorney upon the back of said certificate; and that said certificate had found its way into the hands of the company again, and had been canceled. It is true that the plaintiff was asked whether he ever received any consideration from anybody for the transfer of that certificate. But this question was objected to upon the ground that its answer might involve testimony as to a transaction between the witness and the deceased, and was properly excluded upon that ground. And this was the only attempt, iq any way, to prove the allegations in the complaint as to the circumstances under which the transfer was made. Clearly, because the plaintiff had been a stockholder at one time, and it appeared that he had transferred his stock, no presumption arises that he is still a stockholder, because he alleged in the complaint that such transfer was obtained without consideration, or by false representations. It was necessary that theplaintiff should at least prove these facts, in order to entitle him to any' standing whatever in court, even if that would suffice.

Upon the trial, the plaintiff attempted further to establish his position as a stockholder by exhibiting a certificate for fi ve shares of stock, which certificate showed that one Henry J. Ewing, of New York city, was entitled to five shares of'stock in said company. Upon the back of this certificate was indorsed a blank assignment and transfer purporting to be signed by Caroline A. Ewing, administratrix of the estate of Henry J. Ewing. The receipt of this certificate was objected to upon the ground that the execution of the assignment upon the back of this certificate was not proven, in that the right of Caroline A. Ewing to make any transfer was not proven, and also, even if such right existed, there was no proof in regard to her execution of the assignment and transfer; and the evidence was excluded, and properly so, because there was no proof going to show any transfer of this stock by any person having the ownership thereof.

There seems to have been, therefore, no error committed by the learned court, in dismissing the complaint upon the plaintiff’s failure to prove his right to maintain the action. The judgment should be affirmed, with costs.

Follett and Parker, JJ., concur.


author: Dykman, J.

text:
    Herman Vogel, App’lt, v. Edward H. Schlueter, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    Costs—Appeal.
    The provision of § 3070 of the Code, which determines the right to costs upon an offer in the , appellate court, has application also when the plaintiff appellant was defeated in the lower court, and obtains a more favorable judgment upon the appeal.
    Appeal from an order setting aside taxation of costs.

      Herman Vogel, app’lt, in person; Frank O’Brien, for resp’t.
   Dykman, J.

This action was commenced in a court of a justice ■of the peace for the recovery of damages for the wrongful conversion of personal property belonging to the plaintiff.

Upon the trial before a jury a verdict was rendered in favor of the defendant, and from the judgment entered upon that verdict the plaintiff appealed to the county court of Kings county where there was a new trial before a jury and the plaintiff recovered a verdict for $12.83.

Neither party made any offer to allow judgment after the appeal to the county court, which was taken July 17, 1891.

Upon this state of facts the plaintiff claimed full costs, which were allowed to him by the clerk.

Subsequently an application was made to the county judge of Kings county to set aside the taxation of such costs, and the motion was granted. From that order the plaintiff has appealed to this court.

The question is under the control of this statutory provision • “ If an offer is not made and the verdict, report or decision upon the appeal is more favorable to the appellant by the sum of ten dollars, than the verdict or decision in the court below * * * the appellant is entitled to recover costs upon the appeal.” Code of Civil Procedure, § 3070.

This case fits the statute and the statute meets the case and controls it, and under its provisions the appellant was entitled to full costs.

The plaintiff was unjustly defeated in the lower court when he liad a just claim, and he was compelled to appeal or suffer the loss of his claim and pay costs besides.

Upon the appeal he recovered a judgment more favorable to him by more than ten dollars.

While it may be true in strictness of language that the words “more favorable to the appellant,” imply that the judgment in the lower court was in his favor, we yet think the provision has application also when he was defeated in the lower court, and obtains a more favorable judgment upon the appeal. Such was the view of the court in the case of Vanderwerlcen v. Brown, 38 Hun, 234, and we concur in that view.

The order from which the appeal is taken should be reversed with ten dollars and disbursements, and the taxation of' costs by the clerk in favor of the appellant should be affirmed.


author: Barnard, P. J.

text:
    August Jacobi, Resp’t, v. The Order of Germania, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    1. Evidence—Docdmbntabt.
    An examined copy of a church record, if in the nature of a public record, is admissible in evidence to establish the age of the insured, in an action on a policy or certificate.
    2. Same.
    The register of baptism does not prove when a child was born, only that he was born before the baptism.
    3. Same.
    Section 956 of the Code does not refer to church records.
    Appeal from a judgment entered upon a verdict in favor of the plaintiff, and from an order denying a motion for a new trial.

      Ayres & Walker, for app’t; Charles J. Patterson, for resp’t.
   Barnard, P. J.

On the 25th of Movember, 1889, August Jacobi, Jr., a son of the plaintiff, applied to the defendant to become a member of the order with an intent to make a provision for his father in case of his, the son’s death. Mo one by the bylaws of the order could be admitted as such member who was, at the time of admission, over fifty years of age. The application stated his age to have been forty-seven on the 18th of February, 1889, and that he was born the 18th of February, 1842. He obtained therein a contract by which in consideration of certain payments yearly $1,000 would be paid by the defendant to the plaintiff in case of his, the appellant’s death. The defendant avers in its answer that the appellant was born on the 18th of February, 1835, and was consequently over fifty years of age at his admission as a member of the order and that in consequence of this misrepresentation the policy is void. The proof upon the trial was very conflicting. The father of the plaintiff testified that the deceased son was born in 1842. A brother and sister of the deceased testified to the same fact. The wife of deceased and her mother testified that he was born in 1838 and that he was married under that age. The defendant offered in evidence a certificate of the marriage of the plaintiff in 1885 and a certificate of the birth and baptism of the deceased on the 4th of March, 1838, and in this certificate he is stated to have been born on the 18th of February, 1839. These certificates were proven to have been written in the official records of the phurch books ot Katzhutte, principality of Schwaizburgh, Eudolphstadt.

This record is kept by direction of the supervision of schools and churches, and was kept by the pastor of the parish, and have been kept from time immemorial At the date of the records a Mr. Kuhne was pastor and the records are in his handwriting. The books were delivered by him to the successor as pastor of the parish, the Eev. M. Huke, who testifies to the truth of the record and to the copies^from it. The certificates of baptism of the children of the plaintiff, including the deceased son, were made by the pastors Ortloff and Toupell, and are without change or erasure, and are admitted to be true copies, and admissible if the original record be legal evidence. We think the certificates should have been received. If a record is of a public nature, such as this of a church, an examined copy of the entries relied on without production of the original, is admissible. Jackson v. King, 5 Cow., 237; Lewis v. Marshall, 5 Peters, 470.

The register proves the fact of marriage and the date as recorded. The register of baptism does not prove when the child was born, except that he was born before the baptism. Maxwell v. Chapman, 8 Barb., 579; Kennedy v. Doyle, 10 Allen, 181; Whittacher v. McLoughlin, 115 Mass., 167.

Section .956 of the Code has no bearing upon the question. The section probably does not refer to church records, but section 962 Code preserves evidence admissible at common law. Such evidence was admissible at common law. 1 Greenleaf Ev., 484; Lynch v. Clark, 3 Salk, 54 ; Bradford v. Bradford, 51 N.Y., 670, was decided upon a question of legitimacy. The registers certified too much.

Fisher v. The Mayor referred to the entry of a private person, and the question decided bears no analogy to a church record.

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


text:
    The People, Resp’t, v. Daniel L. Mahoney, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    1. Trial—Jurors.
    A juror who, on challenge, testifies in substance that he will not give the proper effect to the testimony of an accomplice or informer, where such witness will he sworn on the part of the people, is not indifferent between the parties.

      S. Same—Opening.
    The district attorney may state, in his, opening, a history of the surroundings.
    Appeal from a judgment of conviction for the crime of arson in the third degree.

      George Gallagher and W. J. Powers, for app’lt; Thomas W. Fitzgerald, for resp’t.
   Barnard, P. J.

The appeal papers show that the defendant and one Morrison were jointly indicted for arson in the third degree in Richmond county. That Mahoney demanded a separate trial, and upon such trial he was convicted of that offense by the j ury. Morrison was called as a witness by the People. The defendant challenged a juror, Sheldon, who testified that he had formed an opinion which was so strong that it would take evidence to remove it, and he spoke very hesitatingly whether he would give any credence to an accomplice even if he was, corroborated. He would require strong. evidence of corroboration. A challenge was made also to a James O’Brien. This juror testified that his prejudice was so strong against, informers that he also spoke quite hesitatingly as to whether he would believe if corroborated by other witnesses. The challenged jurors were not indifferent between the people and the prisoners. The law permits the testimony of an informer. Corroboration is required. These jurors, by their examination, satisfied the trial court that even if fully corroborated they would not give the proper effect to the testimony of the people. The district attorney, in opening, stated that the fire in question was the last of four, all burning at the same time in the town of Castleton. This was not improper. It was a history of the surroundings. It was part of the people’s case that the prisoners set fire to all the buildings, so on fire at the same time, on the night of December 2, 1892. The accomplice so testified. There was sufficient corroboration of the testimony of the accomplice. Eliza Young places both prisoners and accomplice at the fire. She tried to put out the fire. The two accused prisoners did nothing and were impudent to the witness. Morrison testifies to the fact of Mrs. Young being at the fire as soon as it was started. Thefe is abundant other corroboration to the effect that the two accused prisoners were seen together on the night in question and in the neighborhood of the fires.

The conviction and judgment should be affirmed.


text:
    Abraham B. Merserau et al., Resp’ts, v. Annette Villari, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    1. Order—Liability.
    The obligation of an acceptor of an order drawn by a contractor upon the last payment under a building contract, is contingent upon the contractor's earning such payment.

      S. Same.
    If no money becomes due under the contract upon such installment, the payment of the order does not become obligatory.
    3, Same.
    But the acceptor cannot set up his own default to render the order inoperative.
    Appeal from a judgment entered upon a verdict, and from an order denying a motion for a new trial upon the minutes of the court.

      Robert W. Todd, for app’lt; W. J. Powers, for resp’ts.
   Dykman, J.

This is an appeal from a judgment entered upon a verdict of a jury and also from an order denying a motion for a new trial upon the minutes of the court.

The action was based upon a written instrument in these words:

“ Port Richmond, April 18, 1892.

“Annetta Pillari will please pay to Mersereau Bros, three hundred and forty-nine 54-100 dollars out of last payment, to become due to me on my contract with you for the erection of a house on Bay street, Clifton, Staten Island.

“ Denis Keeley & Sons.”

Written across the face of the paper were these words: “Accepted, Annetta Villari.”

It appears from the case that the defendant made a contract with Keeley & Son for the erection by them for her of a house for which she agreed to pay them $1,600 in four installments of $400 each.

The plaintiffs furnished materials to the contractors for the construction of the building, and they gave him the order therefor as we have already stated.

The action was defended upon the ground of the failure of the contractors to perform their agreement and so that last payment never became due them.

It is to be stated at the outset that the contract, the order and acceptance must be construed together, and considered in connection with each other.

Every acceptance of a draft or order constitutes an agreement to comply with the request contained in the instrument. It is an undertaking to pay according to the assent when due.

By the acceptance of the order the defendant became liable to pay the order out of the last payment to become due Keeley & Son, under their contract with the defendant for the erection of the house.

The obligation of the defendant was not therefore absolute, but was dependent upon the contingency of the earning of the last payment by the contractors.

If,therefore,without the fault of the defendant, no money became due under the contract upon the last installment, the payment of the order did not become obligatory.

But the defendant cannot set up her own default to render the order inoperative, she could not wrongfully prevent the creation of the fund, and then set up its failure as a defense to an action on the draft Gallagher v. Nichols, 60 N. Y., 438; Risley v. Smith, 64 id., 576; Home Bank v. Drumgoole, 109 id., 65; 14 St. Rep., 40.

It was claimed upon the trial that the contractors were wrongfully prevented from completing their contract by the defendant and there was some testimony to support that contention.

The trial judge therefore charged the jury in accordance with his ruling upon the motion for a non-suit, that the real question narrows itself right down to this:—Whose fault was it that Mr. Keeley did not finish this house? If it was his own fault, Mr. Merserau, who really is a disinterested party in this transaction and has nothing to do with the relations of these other parties except his interest in getting his money, must lose his money as against this defendant. Of course he has a claim against Mr. Keeley notwithstanding that. But if Mr. Keeley was not in fault, and Mrs. Yillari wrongfully prevented him from finishing the house, then Mr. Mersereau is entitled to recover this amount of money.

There was no exception to this charge, but the question is raised by the denial of the motion to dismiss the complaint.

The jury found a verdict for the plaintiffs for the amount of their claim, and so must be presumed to have found that the defendant wrongfully prevented the contractor from finishing the house.

Under the authorities to which we have referred the verdict is in accordance with well established rules of law and the judgment and order should be affirmed with costs.


text:
    In the Matter of the Petition of Commissioners of Highways of Islip for Flagmen at Sayville.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    Railroads—Street crossings.
    Obstruction of the view of trains approaching the street crossing is sufficient to warrant the county court in directing the company to keep a flagman at such place.
    Appeal from an order directing the company to keep a flagman at the point where the railroad crosses Railroad avenue in the village of Sayville.

      William J. Kelly, for app’It; Timothy M. Griffing, for resp’fc
   Barnard, P. J.

The petition of the commissioners of highways of the town of Islip, asks that flagman be stationed by the Long Island Railroad Company at various points in the town of Islip, where the tracks of the railroad crosses the highway of the town on grade, under § 33 of the general railroad law. The court ordered a flagman at the point where the railroad crosses Railroad avenue in the village of Sayville. The court also made an order that the railroad company keep a flagman at the junction of the railroad tracks and the highway called Second avenue.in Bay Shore; and that the company erect and maintain a signal bell at the intersection of the railroad track with Fifth avenue in Bay Shore village. The appeal is from both these orders. The proof shows that at the crossing of Railroad avenue, Sayville, a traveler going north can hear the railroad, train but a short distance coming from. the west. One cannot see the train coming from the west. One cannot see the train coming from the east until you get close to the crossing. A person who knows the locality can look between houses if he knows just where to look, otherwise not. You cannot see to the east on the railroad track by reason of curve in the road. In the summer, besides the buildings which construct the view, there are trees which almost wholly destroy all view of the railroad trains approaching from the west.

The proof abundantly sustained the order as to Railroad avenue, Sayville, and the order should be affirmed with costs and disbursements.


text:
    In the Matter of Stationary Flagman at Patchoque Street Crossing.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    Railboads—Street crossings.
    A county court, under § 33 oí the general railroad act, has power to order an electric bell signal at a village street crossing, if the case is a proper one.
    Appeal from an order deciding that an electric bell was needed at Main street crossing in Patchoque.

      William J. Kelly, for app’lt; Timothy M. Griffing, for resp’t
   Barnard, P. J.

The Long Island Railroad crosses three of the streets of Patchoque on grade. The commissioners of highways of the town of Brookhaven, which includes the village, have applied to the county judge of Suffolk for a flagman at each crossing for the public safety. The proceedings were had before the county judge upon the- issue made by the railroad company that flagmen were not necessary at the crossings in question. The court decided that an electric bell was needed at the Main street crossing in Patchoque. The appeal is from this order. Section 33 of the general railroad act authorizes a county court to make an order to station a flagman at points where railroads pass over a highway on grade, or that gates be erected and maintained at such points, or the court may make such other order respecting the same as may be deemed proper. The section is broad enough to order the electric bell signal, if the case is a proper one. The evidence shows a justifiable case for the exercise of this power by the court. Main street is crossed by the railroad at grade at an acute angle. It is with great difficulty one can see the train approaching from the east by.the traveler going east. The trains going east are still more dangerous. You cannot hear the signal when given, and there is proof that the station signals are not always given. The acute angle at which the railroad crosses the street makes it difficult to see a train going the same direction as the highway traveler coming from the same direction. The traveler has to look behind him, and then the point of vision is very short and varying in distance. Three hundred feet from the crossing the point of vision is but a hundred feet to the west, while at a point of a little over four hundred feet from the crossing there is a very full view both east and west. The street is a crowded street. The proof shows that persons of extreme prudence and caution "may escape accident, but the public apprehension of the danger of the crossing rests on solid grounds.

The company ought, therefore, to comply with the order of the county court, and the order is affirmed, with costs and disbursements.


text:
    In the Matter of the Petition of COMMISSIONERS OF HIGHWAYS of Islip.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    1. Railroads—Street crossings. •
    Obstruction of the view of trains approaching the street crossing is sufficient to iustifv the county court in directing the company to keep a flagman at such crossing.
    2. Same.
    The right to such order is not defeated by the fact that the company is directed to give signals at railroad crossings of highways on grade.
    Appeal from an order that the Long Island Railroad Company station a flagman at the intersection of its road with Second avenue, Bay Shore, and that they erect and maintain a signal electric bell at the intersection of the road with Fifth avenue in this village.

      William J. Kelly, for app'lt; Timothy M. Qriffing, for resp’t.
   Barnard, P. J.

The county court of Suffolk county made an order upon the application of the commissioners of highways of Islip,-Suffolk county, that the Long Island Railroad station a flagman at the intersection of the road with Second avenue, Bay Shore, and that they erect and maintain a signal electric bell a# the intersection of the railroad with Fifth avenue in this village. The proof shows that as to the Fifth avenue crossing, the first sight of the railroad train coming from the west by a highway traveller coming from the north is about eighty or ninety feet from the track. North of the track there are maple trees. There are buildings on Fifth avenue on three of the corners made by the railroad intersection with the avenue. There is a curve in the railroad track. The track is sunken some two feet. There is a high board fence near the crossing. One witness testifies that the prevailing condition at the crossing “ obstructs the view entirely.” The trains, in summer, pass at a high rate of speed, and about three hundred vehicles a day cross the track at this point. There is no proof returned as to the crossing at Second avenue; The right to the order in both cases is assailed upon the ground that .the railroad company is ordered to give signals at railroad crossings of highways on grade. Such a view cannot be upheld. By section 33 the legislature intended to provide for further security to the public traveller upon highways as against railroad crossings then on grade, in cases of peculiar danger. The section providing for signals in all cases was a general rule in all case; but, in peculiar cases of danger, additional security should be afforded by the railroad. This was to be secured by application by those whose duty it was to keep the highways safe and upon notice to the railroad. If the appellant’s view is right, section 33 is nugatory.

The order should be affirmed, with costs and disbursements on each appeal.


text:
    Edward Martin, Resp’t, v. New York Life Insurance Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    1. Contract—Termination.
    A notice in writing to an employe that his contract will determine at a a certain date, and his assent thereto releases both parties from the obligation of an existing entire contract.
    3. Same—Reinstatement.
    A subsequent notice that the employe did not mean to release the employer from the payment of the salary for the remainder of the year, and an ofEer to perform after the agreed date of termination do not reinstate the original relation of the parties.
    Appeal from a judgment in favor of the plaintiff.
    Hornblower, Byrne & Taylor, for app’lt; Rudd, Hunt & Wilder, for resp’t.
   Barnard, P. J.

The cause of action of the plaintiff is based upon an averment that he was employed by the defendant for the period of one year from the 1st of January, 1892, and that the defendant, without legal excuse or cause, discharged him from the performance of the services. The defendant denies the contract for the year stated, and avers that the employment was terminated, by mutual consent, on the 30th of April, 1892, and that the services, up to that time, were fully paid and satisfied.

The proof shows that the plaintiff, in 1881, was employed to take charge of the real estate of the defendant “ at the rate of five thousand a year.” The employment commenced on July 1,1881, Before January, 1883, the plaintiff asked an increase of salary. This was agreed to, and a salary in excess of the rate of $5,000 a year was begun in February, 1888, and dated from January 1, 1883. This salary was $6,500. From the 1st of January, 1884, it was increased to the “rate of $10,000.” Such salary was continued, at that rate, up to the 30th of April, 1892, when the employment terminated. The salary was paid monthly. When the increase of salary was made up to $10,000 a year, the plaintiff asked for $15,000 from the 1st of January, 1884, and the reply was, we will give you $10,000 a year, without further mention of the time of the commencement of the term. There was no original hiring for a year; and the subsequent modification as to the rate of compensation, did not make a yearly contract from the date of the raising of the salary.

The case further shows that on the 13th of April, 1892, the defendant sent a letter to the plaintiff, in these words :

u April 13, 1892.

“ Edward Martin, Esq., Slfi Broadway, City.

“ Dear Sir : Acting in conjunction with the finance committee, in the determination to reduce the expenses of this company, I have to notify you that your services will not be needed after April 30th, inst.

“ Respectfully yours,

“ John A. McCall, President.”

On the next day, April 14, 1892, the plaintiff replied as follows:

“¡New York City, April 14, 1892.

“ John A. McCall, Esq., President New York Life Insurance Oo.

“ Dear Sir : Your favor of the 13th inst. received. 1 accept your ultimatum. I regret that you have shunned me, but, I presume, your motives were good. With my best wishes for the prosperity of the ¡New York Life, and that your management may be crowned with success, I remain, respectfully,

“Edward Martin.”

The effect of these letters was to release both parties from the obligation of an existing entire contract, if one aid exist. The plaintiff was bound to serve and the defendant to pay for the services. The agreements were mutual and the letters left each party free, after the 30th of April, 1892, from all performance under the contract. The subsequent letter that the plaintiff did not mean to release the defendant from the payment of the salary for the remainder of 1892, and the offer to perform after April, 30, 1892, did not reinstate the original conditions of the parties. Such a reinstatement must be established by a mutual agreement

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


text:
    James Bigler, Resp’t, v. Joseph W. Duryee, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    1. Deposition—Examination of pasties before trial.
    Orders for the examination of parties before trial may be allowed with liberality and executed comprehensively,
    2. Same.
    They cannot be issued for the purpose of exploration or discovery.
    3. Same.
    Before such order can properly be made after issue joined, it must appear that the party’s testimony is material for the prosecution or defense of such action. '
    4. Same.
    The application must be honest, meritorious and free from ulterior designs.

      Norwood & Coggeshall, for app’lt; E. A. Brewster (Engene E. Hawkins, of counsel), for resp’t.
   Dykman, J.

This is an appeal from an order denying a motion made by the defendant to vacate an order for his examination as a party before trial after issue joined.

Although the affidavit upon which the order for the examination was based is not named as one of the papers upon which the action to vacate would be made, yet the insufficiency of that affidavit is now set up as the reason why the motion to vacate should be granted.

Examination of parties before trial have come to be common now and very useful, and according to the expression of the court of appeals in tne case of Herbage v. City of Utica, 109 N. Y., 82 ; 14 St. Rep., 845, they may be allowed with liberality and executed comprehensively.

Reasonable rules have been prescribed by the Code and the court rule, which must receive compliance upon applications for these orders. They cannot issue for the purposes of exploration or discovery. Under our system of practice there is no means provided for the acquisition of knowledge respecting the testimony to be encountered upon the trial of an action.

Before an order can properly be made for the examination of a party before'trial after issue joined, it must appear that his testimony is material and necessary for the prosecution or defense of such action. In a case like this, it must be made to appear by affidavit that special circumstances exist which render it proper that the party should be examined.

The application must be honest and meritorious and free from ulterior designs.

The affidavit upon which this order was granted states that the testimony of the defendant is material and necessary for the plaintiff and for the prosecution by him of this action.

Then the facts and circumstances which render the examination necessary are fully stated and they are entirely satisfactory. The affidavit is not only a full compliance with the requirements of the Code and the rule, but the facts stated satisfy us that the examination of the defendant is necessary to secure the due administration of justice, and that the testimony will be necessary upon the trial of the action.

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


text:
    Mary Hennessy, Resp’t, v. Brooklyn City Railroad Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    1. Railroads—Street.
    A railroad company has a paramount, but not an exclusive right, to its tracks.
    S. Same.
    While a person has a right to drive upon such tracks, he is bound to be vigilant in discovering an approaching train and quick to leave them at such time.
    3. Same—Imputed.
    A passenger in a wagon, struck by a train, is responsible only for his-own neglect, and the negligence of the driver cannot be imputed to him.
    Appeal from a judgment entered upon a verdict, and from an order denying a motion for a new trial.

      Morris & Whitehouse, for app’lt; James C. Church, for resp’t.
   Barnard, P. J.

The defendant has a double track on the surface of Third avenue, Brooklyn. The tracks are laid about the middle of the highway and are made like the horse railroads, but are propelled by steam dummies. On the 25tli of December, 1891, the plaintiff with her husband and children were driving in a wagon upon this avenue from Gravesend. When they reached Third avenue they drove upon, and continued driving upon it towards Bay Ridge. They drove upon the right hand track according to the custom of travel upon this avenue, until they reached Seventy-sixth street. They saw a train approaching. At this point the right hand side of the highway was obstructed and they turned to the left across the defendant’s track. No train was visible and no bell or whistle was heard. There is a hill which obstructs the sight of an approaching train upon the left hand track at this point. Only a very short distance can be seen. As soon as they attempted to cross to their left the headlight of the train suddenly became visible. The plaintiffs turned to the right again; but before they could free themselves from the track, they were hit by the train and the plaintiff was injured. The proof of the defendant’s negligence was clear. The defendant had a paramount right to these tracks, but not an exclusive right. Fleckenstein v. Dry Dock R. R. Co., 105 N. Y., 655 ; 8 St. Rep., 32.

The plaintiff had a right to drive upon the tracks subject to a careful regard to the rights of the railroad company. The defendant drove its cars on a dark night with some fog, at a high-rate of speed, without warning by bell or whistle. The rule which requires notice at a place where a highway is crossed upon grade by a railroad, should have been observed. There is no negligence which can be imputed to the owner of the wagon, plaintiff’s husband. Having a right to drive upon the railroad track, he was bound to be vigilant to discover an approaching train and quick to leave it when he did discover it. The approaching train behind him must be avoided, and he could not go to the right by reason of obstructions being placed there. He got in this position by reason of a failure by defendant to give notice of its fast approaching train in an opposite direction. As soon as he discovered his danger he at once attempted to avoid it, but was barely too late. If the driver had been hurt there is no'such a case as would justify taking the question of his contributory negligence from the the jury. So the wife a mere passenger with him in the wagon, is responsible for her own neglect and cannot be defeated by the negligence of the driver. Hoag v. N. Y. Central, etc., R. R. Co., 111 N. Y., 199; 19 St. Rep., 80; Brickell v. N. Y. Central, etc., R. R. Co., 130 N. Y., 290; 30 St. Rep., 932.

The judgment and order denying new trial should be affirmed with coste,


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    John M. Canda et al., App’lts, v. Erwin G. Gollner et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    S UPPLEMENTABY PROCEEDINGS—CONTEMPT.
    A general assignment is a violation of the injunction usually inserted in a supplementary order.
    Appeal from an order deciding that defendants were not guilty of contempt.

      J. Woolsey Shepard, for app’lts ; Alfred 11. Page, for resp’ts.
   Barnard, P. J.

The plaintiffs recovered a judgment against Irvin G. Gollner and Ada F. M. Gollner in September, 1892, for $329.38. In October, 1892, an order supplementary to execution was obtained for the examination of the defendants in respect to their property. This order contained the usual words by which all transfers or other dispositions of the property of defendants, except exempt property, was forbidden. After the order was served the defendants severally executed and delivered an assignment of all their property, without preference, under the general insolvent assignment law. The plaintiffs made an application to punish the defendants for a contempt, based upon a disobedience of the supplementary order. This was denied, and this appeal presents the question whether a general assignment was a violation of the injunction contained in the supplementary order. It cannot he claimed but that the defendant violated the express words of the order forbidding the transfer. This violation was made by his voluntary act. The plaintiffs were injured by this act; they had taken steps by which they could have had the first lien on the estate, real and personal, of the judgment debtor. McCorkle v. Herrman, 117 N. Y., 297; 27 St. Rep., 333; Code, § 2469.

The old chancery practice is abrogated. If it was not, the rule would not protect the party making an assignment, except such as was necessary to obtain a discharge under the insolvent laws of the state. A voluntary assignment has no such effect An assignment to obtain a discharge from the debts of a petitioner, under our insolvent laws, is made by the order of the court, and the rule of the court of chancery was aimed at the impropriety of punishing a person for an act done under legal sanction, even when the proceeding was instituted by the debtor’s own petition.

The rule reverses the right to even enjoin such an assignment, specially in an injunction. The Code, however, must govern without regard to the chancery rule.

The order should therefore be reversed, with costs and disbursements, and the defendant be adjudged guilty of a contempt of the order, with ten dollars costs.


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    Thomas Farmer, App’lt, v. The National Life Association of Hartford, Conn., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    1. Deposition—Examination op party before trial.
    Where the information essential to enable the defendant to draw an answer, which can be intelligently and honestly verified, is in the possession of the plaintiff, and the defendant has no means for the acquisition of such knowledge except by an examination of the plaintiff, an order for the examination of the latter is properly granted.
    2. Same—Crimination.
    The fact that the answers to questions propounded to him may criminate him, is no defense to the application, or ground for the vacation of the order, but such objection may be raised ana the point determined when the questions are propounded.
    Appeal from an order denying a motion to vacate an order for the examination of the plaintiff to enable the defendant to frame its answer.

      Judge & Durada {James P. Judge, of counsel), for app’lt; Roger Foster, for resp’t.
   Dykman, J.

This is an appeal from an order denying a motion made by the plaintiff to vacate an order for his examination before trial to enable the defendant to frame its answer. The affidavit upon which the order for the examination was obtained states among other things that the action is upon a policy of life insurance for the recovery of $3,000 upon a policy, made by the defendant to one Thomas J. Brady upon his life, which it is alleged was assigned by Brady to the plaintiff in this action. The defense to the action is, that, at the time of the issuance of the policy, it was the intention of the assured and of the plaintiff also that such insurance should be taken out for the benefit of the latter only. That the plaintiff was the person who paid the premium upon the policy of insurance, and that he had then and had thereafter no insurable interest in the life of Brady, that Brady never applied for a policy, and that it was obtained by fraud, that another man who falsely represented Brady was examined by the defendant’s medical examiner before the policy was issued, and that it was so issued upon an application therein referred to which contained warranties and representations respecting the health and occupation of Brady, which warranties and representations were intentionally false, and that the policy never had a lawful inception, and was null and void.

It is further alleged that the examination of the plaintiff is material and necessary for the defendant to enable it to draw an answer and make its defense to the action. The affidavit is sufficient to justify the issuance of the order for the examination of plaintiff. The information essential to enable the defendant to draw an answer which can be intelligently and honestly verified is in the possession of the plaintiff, and the defendant has no means for the acquisition of such knowledge except by an examination of the plaintiff. The vacation of the order was sought principally upon the ground that upon the examination of the plaintiff he might be required to give answers which would subject him to a criminal prosecution, but that objection is premature. The plaintiff must submit to the examination , and if it appears then that answers to questions propounded to him may criminate him, that will be the time to raise the objection and have the point determined, but it is not apparent that the matters upon which it is sought to examine the plaintiff involve any criminality, it is merely sought to ascertain the insurable interest of the plaintiff in the life of Brady and whether it was the intention of the plaintiff that the policy should be issued to Brady and assigned to him.

Our conclusion, therefore, is that the refusal to vacate the order for the examination of the plaintiff was justifiable, and should be affirmed, with $10 costs and disbursements.


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    The People, Resp’ts, v. William Nooney, App'lt.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    Cbiminal law—Recognizance.
    The fact that the defendant in a criminal bond, some time after forfeiture and judgment thereon, was sentenced, in another court, to imprisonment, is no ground in favor of the surety, for a remission of the forfeited recognizance.
    Appeal from an order denying a motion to set aside a judgment rendered on a forfeited recognizance.

      John W. Lyon, for Thomas F„ Farrell, surety, app’lt; M EL Birschberg, for resp’t.
   Barnard, P. J.

The papers show that in April, 1890, the defendant, William Mooney, was indicted in Orange county for an assault in the second degree. The defendant gave a bond with Thomas F. Farrell, as his surety, for his appearance at the trial. The indictment was regularly before the court of sessions of Orange county, in May, 1890, for trial, and the defendant did not appear. The bond was forfeited, and judgment recovered upon it by the People, on the 7th of January, 1891. Mo case is made for a remission of the forfeiture. The only reason given is that, in January, 1891, or soon after, the defendant Mooney, pleaded guilty to a charge of larceny in the first degree in Mew York, and was sentenced to a long period of imprisonment. At the time of the default, no reason existed why the defendant did not appear for trial. If it had then been impossible for the defendant to appear, a good case would be made for a remission of the forfeited recognizance. This cause of action was complete, and judgment recovered upon it before, by the criminal act of the defendant, he became a convict, and was sentenced to the state prison. The bond should, therefore, be paid.

Order affirmed with costs.


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    Harry R. Elliott et al., Resp’t., v. The New York Endowment Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    Contract—Subscbiftion.
    Where, in an action against a company for goods sold to, and labor performed for, the company, a counterclaim is interposed by reason of a subscription on the part of the plaintiffs to such company’s stock, that contract to subscribe can be enfored only to its terms.
    Appeal from a judgment entered upon a verdict made by the direction of the court upon a trial at the circuit.
    Cantor, Linson & Van &haiclc, for app’lt; John Andrews, for resp’t.
   Dykman, J.

This is an appeal from a judgment entered upon a verdict made by direction of the court upon a trial at the circuit.

The complaint of the plaintiffs stated : First. That they were co-partners in business. Second. That the defendant is a domestic corporation. Third. That between the first day of January and the first day of September, 1892, the plaintiffs sold and delivered to the defendants goods, consisting of stationary, and did printing and lithographing work of the value of $1,665.75. Fourth. That the defendants had paid $900 on account of the claim, leaving a balance of $764.75, for which the plaintiffs demanded judgment. The answer of the defendant stated: First. That it had no knowledge or information of the facts stated in paragraphs 1, 3 and 4 of the complaint. Then set up a counterclaim against plaintiffs upon an allegation that they had subscribed the sum of $1,000, to the stock of the defendant, and paid the sum of $100 on account thereof, and demanded judgment in its favor. There was a reply in which the plaintiffs denied that they subscribed the sum of $1,000 for the stock of the defendant, or that they ever received any notice of assessment, but admitted that the defendant requested the plaintiffs to take a $1,000 worth of stock of the defendant upon the following terms : That the plaintiff should pay ten per cent of the amount of stock in cash and the balance of said stock to be paid for by a deduction of fifteen per cent, from the amount to be paid by the defendant to plaintiff each month for goods to be sold and delivered, work and labor to be performed by the plaintiffs, that they paid $100, and that the defendant failed to perform its agreement.

Afterward the defendant withdrew its denial to the third paragraph of the complaint, which alleged the performance of the work and the sale of the property. Upon the trial a witness was called by the plaintiffs who proved the amount of interest due upon the demand,and upon cross-examination was handed a paper, the signature to which was proved by him to be one of the plaintiffs. Thereupon the plaintiff rested, and the counsel for the defendant asked leave of the court to amend his answer. Counsel for the plaintiff objected to -the amendment because the application should have been made to the special term for the defense related to matters which have arisen since the commencement of the action, because in that case it would be necessary to serve a supplemental pleading setting up such new matter. Thereupon the judge denied the motion to amend. The counsel for the defendant then read the deposition of a witness taken upon commission, which showed among other things a letter from the plaintiffs as follows:

“ In reference to our conversation of this p. m. we find the best we are able to do will be to subscribe now for $1,000 of stock with the privilege of $2,000, ten per cent down and the balance to be paid as follows: Fifteen per cent, to be deducted from our account with you each month and credited toward the payment of balance. Trusting this will be satisfactory to you, we are,

'Yours truly,

“H. E. Elliott & Co.”

At the close of the testimony the counsel for the plaintiff requested the court to direct a verdict in their favor, and the court stated : “FTo doubt it is true that stock can be paid for so as to make it fully paid stock by any arrangement to pay for it in this way, but it seems to me equally plain that in a litigation between a company and the plaintiff who has sold and delivered goods to the company, and performed labor for the company, where a counterclaim is interposed by reason of a subscription on the part of the plaintiffs to that company’s stock that contract to subscribe can be enforced only according to its terms. Now the contract subscribed here was made in writing, that is to say, under the rules of evidence as I understand them and feel bound to apply them in this case, in order to get at what the real transaction between the company and these plaintiffs was, we must look at the letter they wrote, and at the subscription written as I must assume, at this stage of the case in the absence of any further evidence, with the authority of these plaintiffs.

Taking the letter and the subscription together it amounts simply to this, that they agreed to subscribe for this stock and to pay all. that they did not pay at once by deducting fifteen per cent, from their monthly accounts. If you, the defendant, had proved here, what the monthly accounts were, and had asked a deduction of fifteen per cent, from each of these monthly accounts on the part -of your counterclaim as a set off or deduction, I think you would be entitled to have it, but in the absence of any proof as to what the monthly accounts were, and what the fifteen per cent, was, I think the plaintiffs are entitled to a verdict for the entire amount claimed, and I direct a verdict accordingly for $830.62, to which there was an exception.

We concur in the views so stated, and ffind no difficulty in confirming the judgment, with costs.


author: Dykmapt, J.

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    In the Matter of the Application of Edmund Van Derzee.

      (Supreme Court, General Term, S cond Department,

      Filed December 1, 1893.)

    Limitation—Guardian’s accounting.
    The relation existing between guardian and ward, after the latter becomea twenty-one years of age, is that of debtor and creditor, and the six years’ statute of limitations is applicable to the guardian’s subsequent accounting.
    Appeal from a decree of the surrogate dismissing the application of appellant to compel the respondents to file an account of their decedent as general guardian of the appellant.

      Hobert F. Andrews, for app’lt; De Groot, Rawson & Stafford, for resp’t
   Dykmapt, J.

This is an appeal from a decree of the surrogate of the county of Eichmond, dismissing the application of the appellant to compel the respondents to file an account of the proceedings of their decedent as general guardian of the appellant. The appellant Vanderzee presented a petition to the surrogate of Eichmond county in which he stated among other things that he was thirty-four years of age ; that on the 13th day of January, 1864, letters of guardianship were granted by the surrogate of Eichmond county to John H. Yan Cleef in said county, appointing him general guardian of the person and estate of the petitioner.

That John H. Yan Cleef died on the 22nd day of January, 1892, at Port Eichmond, in said county, without having made any settlement of his accounts as such general guardian of the petitioner, that Yan Cleef left a last will and testament which was admitted to probate by the surrogate of Eichmond county, and on the 18th day of March, 1892, letters testamentary were granted thereon to Melville E. Wygant, John Croak and Lewis Kloss. Then the petitioner prays that a citation may be .issued to such executors requiring them to show cause why they should not, as executors of the last will and testament of Yan Cleef, render a judicial settlement and account of his proceedings as general guar.dion of the petitioner.

The executors answered the petition denying the allegation in the petition, that the guardian Yan Cleef died without having rendered and settled his accounts as such general guardian, and alleging on the contrary two several accountings by him, one on the 15th day of January, 1869, and the last on the 14th day of June, 1875, in which he fully accounted for all the matters concerning his guardianship. They then stated that the petitioner ought not to maintain this proceeding because more than ten years have elapsed after the petitioner became of full age, and before the death of Yan Cleef, and because more than twenty-nine years have elapsed since the original appointment of the guardian..

When the matter came before the surrogate he made a decree denying the application of the petitioner, and it is. to be gathered from the language of the decree that his decision was based upon the statute of limitations, or in other words, that he decided that the right to the relief was barred by the ten years statute, inasmuch as more than that time had elapsed since the petitioner became twenty-one years of age. From the date stated in the petition it is to be gathered that Yan Derzee became of full age on the 15th day of June, 1879, when he could have maintained the action against Van Cleef as guardian for the settlement of his accounts or for the money in his hands if any remained at that time.

That being so, the relations existing between the petitioner and his guardian from that time was that of debtor and creditor, and the six years would apply because such an action would be based upon an implied contract to pay over money belonging to the plaintiff.

Our conclusion is that the' surrogate properly applied the statute of limitations to the proceeding, and his decree should be affirmed, with costs.


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    In the Matter of the Estate of William W. Merriam, Deceased.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    1. Tax—Collateral iitheritaitce.
    A legacy to the government of the United States is subject to the collateral inheritance tax.
    2. Same—Nature.
    Such tax is not upon the property bequeathed but upon the right of succession.
    Appeal by the United States from an order denying its motion to set aside and vacate an order assessing the cash value of the personal property of testator at the time of his decease, and fixing the transfer tax thereon.

      Jesse Johnson, for the United States; James H. Tuihill and George F. Stackpole, for executor; Timothy M. Griffing, for county treasurer.
   Dykman, J.

This is an appeal from an order of the sutrogate’s court of Suffolk county, which affirmed the order dated May 22, 1893, assessing the cash value of the personal property of the testator at the time of his decease at $79,284.60, and fixing the tax upon the transfer thereof to the United States government at the sum of $3,964.23. The United States appeals from, an order dated September 5, 1893, denying the motion made by the United States of America to set aside and vacate the order of May 22, 1893.

William W. Merriam, a resident of the town of Brookhaven, in Suffolk county, died on the 30th day of January, 1889, leaving a last will and testament, which was admitted to probate by the surrogate of Suffolk county, and letters testamentary thereon were issued to Clifford B. Ackerly as sole executor.

The testator devised and bequeathed all his estate, both real and person, to the United States government. Upon the petition of the executor, the surrogate of the county appointed an appraiser to assess and fix the cash value of the property of the testator at the time of his death. The appraiser reported the net cash value of the property at the figures mentioned above, and on May 22, 1893, the surrogate on motion made an order confirming said report, and assessed the value of the testator’s property at the same amount as reported by the appraiser, and fixing the tax upon the transfer at the figures above named.

As the real estate of the testator did not pass to the "United States under the will, by reason of the invalidity of a devise of real estate to the United States government, that is not involved in this present controversy. In the Matter of Fox, 52 N. Y., 537.

We are required to decide in this case whether a legacy to the government of the United States is subject to the imposition commonly denominated the collateral inheritance tax. The determination of this point seems to be dependent upon the question whether the tax is a tax upon property or upon the right of succession.

The appellants insist that the charge is a tax upon property, and planting this upon the fundamental principle of law, that governmental property is ever exempt from taxation, insist that a legacy to the United States government cannot be diminished by the deduction of its succession tax. Contrariwise, the respondent contends that the tax is a tax upon the right of succession under a will or by devolution in case of intestacy, or in other words, a tax upon the privilege of acquiring property by will cr inheritance and is an impost upon the devolution of the estate. If the contention of the appellant is sustained, then the appeal must prevail, for government property is always exempt from taxation. The language of the statute is this: Section 1. “ Taxable transfers. A tax shall be and is hereby imposed upon the transfer of any property, real or personal.” * * * Laws of 1892, chapter 391, § 1.

And according to the literal reading the tax is imposed, not levied upon the transfer, and not upon the property. It is similar to an impost or duty or tax laid by government upon property imported into the country or to the old income tax.. In the case of duties upon goods the property appraised and its value constitutes the basis of the impost as it does under this law, and the same is true of income tax or an excise tax. The property is the subject of the appraisal, but the subject of the tax is the privilege in all the cases.

In the case of Wallace v. Meyers, 38 Fed. Rep., 184, in the United States circuit, it was decided, that, where the property of the decedent includes United States bonds, the tax may be assessed upon the basis of their value, and the tax is not imposed upon the bonds, but is merely a tax upon the privilege of acquiring property by inheritance; and, in that case, it was said, in the opinion of the court, such tax,” “ Is.no more one upon the bonds than an income tax is one upon the property out of which the income is derived, or an excise tax is one upon the articles manufactured or sold. The bonds are the subject of the appraisal but the privilege is the subject of the .tax.” The terms of the act of congress of June 30, 1864, 13 U. S. St., 285.” Taxes, legacies and successions are quite similar to those of the present taxes in respect to the valuation of assessment; the subject matter of the assessment in that act was held by the supreme court, Scholey v. Rew, 22 Wall., 331, to be the devolufcion to the estate of a right to become beneficially entitled to it, and the act was considered as taxing a privilege and not a property

In Virginia, the highest court in the state has construed a similar statute as imposing the tax, not upon the property, but upon the privilege of acquiring it by will or under the intestate laws. Eyre v. Jacob, 14 Grat., 422 ; Miller v. Com., 27 id., 110.

The precise question now presented was considered by the Supreme Oourt at Pennsylvania in Strode v. Com., 52 Pa. St. 181, and the court treated the statute not as taxing property, but as regulating the transmission of the property of decedents, and upon that view, held that government securities were properly included in the valuation of the inheritance upon which the tax was assessed.

So it was also held in the Matter of the Estate of Swift, 137 N. Y., 77; 50 St. Rep., 81, that the tax imposed by the collateral inheritance tax law is not a property tax, but a tax upon the right of succession under a will or devolution in case of intestacy.

In the Matter of the Estate of J. W. Cullen, reported in the combined official series of New York state reports, and session laws for October 14, 1893, it was decided in the surrogate’s court of the city of New York that a bequest to the government of the United States was liable to taxation under the laws relating to taxable transfers of property, and the opinion in that case is quite satisfactory upon this subject.

In view of that language of the statute, and the construction it has received, we feel bound to decide that the tax in question is not upon the property bequeathed but upon the right of succession, and that the orders from which the appeals are taken should be affirmed with costs.