text:
    Matter of the judicial settlement of the accounts of David Hawley as testamentary guardian and trustee.

      (Court of Appeals,

      Filed February 1, 1887.)
    1. TRUSTS — TESTAMENTARY TRUSTEES — HOW CREATED.
    To constitute a testamentary trustee, it is necessary that some express trust be created by tbe will. Merely calling an executor or guardian a trustee does not make him such. Every executor and every guardian is, in a general sense, a trustee ; but not in tbe sense in which that term is used in courts of equity and in the statutes.
    2. Surrogates* court — Jurisdiction must be shown — Powers.
    A surrogates’ court is a creation of the statute, of inferior and limited jurisdiction. Those claiming under the decree of a surrogate must show affirmatively his authority to make it, and the facts which give him jurisdiction. In respect to accountings by testamentary trustees or guardians, a surrogate takes no incidental powers or constructive authority by implication which is not expressly given by statute.
    3. Same — Settlement of guardian’s account — When it has jurisdiction.
    An attempted judicial settlement by a surrogate of the accounts of a guardian appointed by the surrogate, or a testamentary guardian made either before or since the adoption of the Code of Civil ^Procedure, but while the guardianship continued is void for want of jurisdiction (following Diaper v. Anderson, 37 Barb. 168, statutes collated and discussed.)

    4. Guardian — Fraud — How proved — Evidence.
    The intentional withholding from the surrogate by the guardian of the information that he had received commissions on the principal on a previous accounting would be fraud to obtain their allowance the second time by concealing the fact that he had previously received them. Questions ■ put to him on his examination before the surrogate although not calling for facts, which would have positively proved such a fraud, yet tended in that direction, were proper and should have been allowed.
    5. Same — Commissioners — WnEN fixed.
    Whether the guardian is entitled to charge commissions, as guardian on the principal, notwithstanding that he received them as executor mot decided. Whatever commissions are properly alowable, should be determined on the final accounting aceeeding to the law existing at that time.
    Appeal from an order of the supreme court, general term, second department, affirming an order of the Westchester county surrogate’s court, allowing commissions to a guardian and trustee on his final accounting.

      Chas. E. Tracy, for appl’t; James C. Carter, for resp’t.

       Reversing 36 Hun, 258.

   Rapallo, J.

Isaac M. Singer died July 23, 1875, leaving a will dated July 16, 1870, whereby, after making certain legacies, he divided all his residuary estate, real and personal, into sixty equal parts, and devised and bequeathed six of said parts, being one-tenth of his estate, to his son, Adam Mortimer Singer, for his sole and separate use and benefit.

Adam Mortimer Singer was at the date of the decease of the testator an infant of the age of about twelve years. The testator directed that should he continue to hold, at the time of his decease, the stock of the Singer Manufacturing Company, such stock should, in no event, be sold but should be divided by his executors as near as might be in the proportions indicated in the will. He appointed David Hawley and Charles M. Kellar executors, and appointed his executors guardians and trustees of the estates of such of his legatees as should be under the age of twenty-one years at the time of his decease, to continue such guardians and trustees until said legatees should respectively arrive at that age. The will, however, contained no trust, but all the property devised and bequeathed was given directly to the legatees named.

The will was admitted to probate by the surrogate of Westchester county on the 10th of January, 1876. The principal item of the property left by the testator was forty-one thousand eight hundred and one shares of the capital stock of the Singer Manufacturing Company, the value of which was appraised at 1175 per share, amounting in the whole to $7,315,000, of which the share of Adam M. Singer was $731,500.

David Hawley qualified as executor, and as such rendered his account to the surrogate of Westchester county on the 12th of January, 1877, and petitioned for a final settlement of his account as executor. Citations were duly issued and a decree was made by the surrogate on the 31st of October, 1877, finally settling such account. The executor was charged with $9, 651,-•521.85 of assets, including the forty-one thousand eighthundred and one shares of the stock of the Singer Manufacturing Company, amounting to $7,315,000. He was credited with $1,546,-636.54 for expenses and payments, leaving in his hands the sum of $8,104,885.31. Out of this balance he was allowed $96,255 for commissions for receiving and paying out the whole principal. The several distributive shares of the legatees were ascertained and he was directed to retain and hold in his hands as testamentary guardian and trustee of Adam M. Singer, and to be accounted for by him as such testamentary guardian and trustee, his share of the cash assets remaining in his hands, and also one tenth of the stock of the Singer Manufacturing Company left by the testator, until said Adam M. Singer should become of age.

In December, 1878, said Hawley presented to the surrogate of Westchester county his account as testamentary guardian and trustee of Adam M. Singer, in which he charged himself with the stock and money found to be in his hands by the decree entered by the surrogate on his account as executor, and also all the dividends and interest subsequently received, and he applied to said surrogate for a final settlement of such account. A citation was issued to Adam M. Singer, who was then still an infant, and residing in Europe, and a special guardian was appointed for him for the purpose of taking care of his interest in that proceeding. A decree was afterward entered by the surrogate on the 30th of December, 1878, purporting to finally settle and allow said account; and the guardian was by said decree again allowed full commissions for receiving and paying out the whole principal received by .him for said infant, which was found to be $1,040,600, the commissions amounting to $10,581. The decree purported to finally discharge said Hawley from all accountability, except for the 41,800 shares of stock and the United States bonds then held by him. In December, 1880, the said Adam M. Singer being still an infant, said Hawley applied again to the surrogate for a judicial settlement of his accounts, as testamentary guardian and trustee, from the date of the last accounting, and the passing of the same by the surrogate, in December, 1878. He presented his account, which commenced by charging himself with the balance due from him December 30,1878, being $1,211,344.44. This account did not, on its face, disclose the fact that he had already received commissions, first as executor, and again as testamentary guardian, on the principal of his ward’s estate. A guardian ad litem was appointed for him by the surrogate on this last accounting, and it is stated in one of the affidavits of Mr. Hawley that the guardian who represented him on the second accounting was a different person from the one who represented him on tbe former accounting. On this last accounting a decree was made, on the tenth of January, 1881, judicially settling his accounts up to that time. By this decree Mr. Hawley was again allowed full commissions for receiving and paying out the whole principal of his ward’s estate, including the stock of the Singer Manufacturing Company, which commissions amounted to the sum of $12,288.

Adam M. Singer having become of age on the twenty-fifth of July, 1884, Mr. Hawley, in October of that year, presented a petition to the surrogate for a judicial settlement of his accounts as testamentary guardian and trustee, and asked to be discharged from all liability as such. On the hearing of this petition, Mr. Singer appeared by counsel, and objections were filed to the accounts rendered by Mr. Hawley. The account, as in the last proceeding, began by charging Mr. Hawley with the balance found in his hands by the decree of January 10, 1881; and it was objected on the part of .Mr. Singer that the balance was less than was properly chargeable by Mr. Hawley; that he had, without warrant of law, retained commissions upon the 41,800 shares of the -Singer Manufacturing Company’s stock; that he had also retained commissions upon the principal for which he had accounted on the accounting of December 30, 1878, and likewise upon the principal for which he had. accounted on the tenth of January, 1881; and that the balances had been improperly brought down by reason of such acts.

On the hearing of these objections before the surrogate, the decrees upon the former accountings were relied upon by Mr. Hawley as conclusive on the question of his right to the commissions charged therein ; and thereupon an amendment of the objections was asked for and granted, by which amendment the contestant claimed that the cash balance brought down was produced by means of deductions from moneys belonging to the estate, for commisskms allowed to the guardian and trustee by the court on the two former accountings, and that said two decrees were without the jurisdiction of the surrogate to grant, so far as the matter of commissions was concerned, and were obtained by misrepresentations on the part of said guardian and trustee, and those representing him, and that the matter of the commissions, as allowed by said decrees, was never, in fact, judicially investigated or determined by the surrogate. Under these objections, the contestant asked Mr. Hawley whether he did not draught the decree; whether there was any contest by the special guardian on the first accounting in respect to the amount of commissions; whether there was, in fact, any argument or taking of evidence in regard to that matter. The same question was asked in regard to the second accounting, and whether the. fact was made known to the surrogate upon the second accounting, when the matter of the computation of commissions was on band, tbat Mr. Hawley bad already received full commissions upon the same principal fund for wbieb be at tbat time asked for another allowance of full commissions. These questions were severally objected to on the part of Mr.' Hawley, on the ground tbat they were immaterial, irrelevant, and incompetent, and all the objections were sustained, and exception taken. The decrees of December 30th and January 10th being offered in evidence, Mr. Hawley was further asked whether, on either one of the occasions when the decrees were entered, any statement or representation was made to the court in regard to the contents of the will of the testator respecting the shares of stock of the Singer Manufacturing Company. This question was objected to and excluded. The surrogate then proceeded to finally settle the accounts of the guardian, taking as the basis of the accounting the balance found due upon the settlement of January 10, 1881. He allowed to the guardian no commissions on the principal of the estate, but only on such increase as had come into his hands subsequent to the last accounting of January 10,1881, which commissions amounted to about §3,000 ; and he delivered an opinion, reported in 3 Dem. 591, in which he conclusively showed that Mr. Hawley was not entitled to charge, as, guardian or trustee, commission on the principal of his ward’s estate more than once, — a proposition too plain for discussion.

The surrogate, in excluding the testimony offered by the contestant for the purpose of impeaching the former decrees, expressed the opinion that it was an endeavor to do indirectly what the contestant had attempted to do directly: referring to an application which the contestant had made to open the decrees of December 30, 1878, and January 10, 1881, which he had denied on the ground of want of power, and which was afterwards passed upon by this court under the following circumstances : While the accounting of 1884 was in progress, the contestant presented a petition to the surrogate praying that the decrees of December 30,1878, and January 10, 1881, might be set aside. That petition set forth the former accountings of Mr. Hawley as testamentary guardian, and alleged that the allowances of commissions made were erroneous, but made no charge of fraud or misrepresentation in procuring the decrees. It simply claimed that the allowances of Commissions were erroneous, irregular, without warrant of law, and beyond the jurisdiction of the surrogate to grant. The surrogate denied the petition to vacate these decrees, on the ground, as stated in his opinion, that the case was not within section 2481 of the Code, as the proceedings were instituted before the Code of Civil Procedure went into effect; and that he had no power to grant a rehearing for errors of law, there being no charge of fraud. This orderw as reversed by the general term of the supreme court, on appeal, the ground taken by the general term being that the decrees of the surrogate were void, for want of jurisdiction. When the case came before this court, it adopted the view of the surrogate, that the only mode of review of the errors of law was by appeal; and that, there being no fraud or clerical error charged, the application was not authorized by section 2481 of the Code of Civil Procedure. The judgment of the general term was therefore reversed, this court holding that the decrees should not have been vacated upon mere allegations in a collateral proceeding that some of the determinations of the surrogate were erroneous as matter of law, without any proof, or even a suggestion in the petition, that any fraud or clerical error had been committed, or -the existence of evidence newly discovered, or any other cause rendering such an order proper under section 2481 of the Code of Civil Procedure. With regard to the objection that the decrees were void for want of jurisdiction, this court said in its opinion that, if the views suggested in that respect by the general term were correct, it was quite unnecessary to vacate the decrees for that reason, as they would not constitute a bar to any subsequent investigation .of the guardian’s accounts, but would be void. The question whether the decrees can now be assailed, when set up as a bar to the objections made by the contestant to the double commissions retained by the guardian, is therefore unaffected by our decision in the previous case, and it is open to the contestant to attack the decrees, thus set up against him, either on the ground of fraud or want of jurisdiction. The charge of fraud in the objections, as amended, is not specific and is very general, but the exclusion of the evidence does not seem to have been placed upon the ground of any want of formality in the objections, and it is questionable whether it was necessary to make specific objections to the decrees for the purpose of avoiding them by proof of fraud, when they were set up against him. Mandeville v. Reynolds, 68 N. Y. 528, 543.

It is very evident from the subsequent action of the surrogate upon the subject that, had the facts been called to his attention, he would not have allowed the commissions on the principal which were allowed for the second time in the accounting of January 10, 1881, for he disallowed them in the final accounting of 1884, although if they were properly allowed in 1881, it would have been proper to again repeat them in 1884, and the same reasons for which they were disallowed in 1884 existed against their allowance in 1881. The guardian knew that he had received these commissions on the accounting of December 30, 1878, and if he knew that he was not entitled to receive them again on the accounting of January 10, 1881, and intentionally withheld from the surrogate the information that he had received them on the previous accounting, no one can doubt that it would have been a fraud to obtain their allowance the second- time by concealing tbe fact that he had previously received them. The questions put to him on his examination before the surrogate in 1884, although not ’calling for facts which would have positively proved such a fraud, yet tended in that direction, and. were, in my judgment, proper. It is, perhaps, possible to conceive that the guardian may have supposed himself entitled to commissions upon the principal every time he should render an intermediate account, which might be every year, and, therefore, was free from any actual fraudulent intent in claiming them in 1881. That was a question to be determined on.all the proofs after they were in, but was no ground for excluding the evidence. His insisting on retaining the commissions after he must have been advised by the subsequent proceedings, of the impropriety of thus duplicating and triplicating commissions on the principal, and his strenuous resistance even to an investigation of his right to them cannot meet with our commendation in a controversy between guardian and ward.

But it is not necessary to sustain the proposition that the decrees were properly attacked on the ground of fraud in obtaining them, for there is another and conclusive ground for alleging error in the decree now appealed from.

It seems to have been assumed throughout the proceeding that Mr. Hawley was a testamentary trustee, and that the provisions in regard to accountings by testamentary trustees were applicable to him.

We think the assumption unfounded. To constitute a testamentary trustee, it is necessary that some express trust be created by the will. Merely calling an executor or guardian a trustee does not make him such. Every executor and every guardian is, in a general sense, a trustee, for he deals with the property of others confided to his care. But he is not a trustee in the sense in which that term is used in courts of equity and in the statutes. Wood v. Brown, 34 N. Y. 337; Cleveland v. Whiton, 31 Barb. 544.

It is said by Story, (2 Eq. Jur., § 1330) that an attempt has been made to sustain the jurisdiction of the -court of chancery over guardians of infants “ by considering guardianship as in the nature of a trust, and that, therefore, the jurisdiction has, a broad and general foundation, since trusts are the peculiar objects of equity jurisdiction. But this has been thought an over-strained refinement, for although guardianship may properly be denominated a trust, in the common acceptation of the term, yet it is not so in the technical sens® in which the term is used by lawyers, or in the court of chancery.”

As before remarked, the will of the testator does not purport to create any trust whatever. Nothing is bequeathed to his executors upon any trust, but his bequests are made directly to the legatees named, in every instance. He directs his executors to divide his residuary estate, and fay over the several parts or portions as directed. He bequeaths to his son, .Adam M. Singer, six of the sixty parts hito which he directs his residuary estate to be divided, for his sole and separate use, benefit and behoof forever. He prohibits his executors from selling his stock in the Singer Manufacturing Company, but creates no trust in relation to it, and directs that it be divided by them in the necessary proportions directed, as nearly as may be, contribution being made, if necessary, for division. He then appoints his executors, guardians and trustees of the estates of such of the legatees as are under twenty-one years of age at the time of his death, to continue such guardians and trustees until such legatees shall respectively arrive at full age. As before observed, there being no trust declared in the will, the guardian became entitled to the property by virtue of his office of guardian, and the addition of the term “ trustee,” it not being connected with any trust, had no effect upon the character in which he took the infant’s share.

A surrogate’s court is a creation of the statute, of inferior and limited jurisdiction. Those claiming under the decree of a surrogate must show affirmatively his authority to make it, and the facts which give him jurisdiction. In respect to ac-countings by testamentary trustees „or guardians, a surrogate takes no incidental powers or constructive authority by implication, which is not expressly given by statute. Corwin v. Merritt, 3 Barb., 341; Wood v. Brown, 34 N.Y., 342; Craig v. Craig, 3 Barb., Ch. 76; Re Wadsworth, 2 id. 381; Re Andrews, 1 Johns. Ch. 99; Bulkley v. Van Wyck, 5 Paige, 536.

Under the Revised Statutes, surrogates had no jurisdiction to settle the accounts of testamentary trustees.

In the general enumeration of their powers in 2 Revised Statutes, 220 (§ 1, subd. 3) they are declared to have jurisdiction to control the conduct and settle the accounts of executors and administrators only. An executor, although a trustee in a general sense, is not a trustee within the meaning of the statute (Wood v. Brown, 34 N. Y., 337; Cleveland v. Whiton, 31 Barb., 544) and the general powers of the surrogate do not embrace jurisdiction over testamentary trustees. Savage v. Olmstead, 2 Redf. 483; Furniss v. Furniss, id. 497. To establish this jurisdiction particular statutes must be resorted to.

The first statute giving power to surrogates to settle the accounts of testamentary trustees was the act of 1850 (Laws of 1850, chap. 272) which amended 2 R. S. 220, § 1, subd. 3, so as to provide that any trustee appointed by any last will and testsv ment, or appointed by competent authority to execute any trust created by any last will and testament, or appointed by competent authority to execute any trust created by any last will and testament might from time to time render and finally settle his accounts before the surrogate of the county in which the will was proved.

This act was amended by chapter 115 of the Laws of 1866, by inserting a provision that on all such accountings by trustees, the surrogate should allow to the trustee or trustees the same commissions as were allowed by law to executors and administrators.

Thus far there was no provision authorizing the settlement of the accounts by testamentary guardians. The only guardians over whom surrogates had jurisdiction were guardians, appointed by the surrogate. Provision was made for account-ings by guardians thus appointed, by 2 Revised Statutes, 152, §§ 11, 12; and by Laws of 1837, chap. 460, §§ 54, 57, 58.

By section 57 guardians appointed by surrogates’ courts were required annually, after their appointment, to file in the office of the'surrogate who appointed them an inventory and account-under oath.

By section 58 the surrogate was required to file, and in the month of February in each year to examine, all such accounts, and vouchers as should have been filed for the preceding year. By section 60 the surrogate was empowered to require a further-account, or, if dissatisfied, to institute proceedings for the removal of the guardian. But there was no provision for the judicial settlement of-their annual accounts; and it was held in Diaper v. Anderson, 37 Barb., 168, that the statute did not contemplate a settlement of the annual accounts, but that they were merely intended to inform the court as to the manner in which the guardian was discharging his trust; and it was held in that case that there was no provision in the statutes for the judicial examination and settlement of a guardian’s accounts, during the continuance of the guardianship, and that there were only two cases in which the surrogate had jurisdiction to judicially settle the account of a guardian at the instance of the guardian: and those were where he was permitted to resign his trust, or was superseded, and a new guardian appointed, or where the infant had arrived at his majority. See 2 Rev. St. 152, §§ 11, 12, as amended by act of 1837. In Seaman v. Duryea, 11 N. Y. 324, the guardian had been superseded, and was required to pay the balance in his hands to his successor. See S. C. 10 Barb. 525.

By Laws 1867, ch. 782, jurisdiction was for the first time conferred on surrogates to settle the accounts of testamentary guardians. That act (section 1) gave jurisdiction to surrogates to compel testamentary trustees and guardians to render accounts of their proceedings in the same manner as executors and administrators, and guardians appointed by such surrogates, were then required to account. By chapter 482 of the Laws of 1871 this act was amended by authorizing tlie surrogates to require testamentary trustees and guardians to give security, and to remove them in the same manner as provided by law for requiring security from and removing executors, administrators, or guardians appointed by surrogates. The Code of 1880 has substantially re-enacted these provisions, and added some that are new, but has carefully distinguished between testamentary trustees, testamentary guardians, and guardians appointed by surrogates, and provided a distinct system as to accountings by each. Chapter 18, tit. 4, § 2472, declares the general jurisdiction of surrogates’ courts, in subdivisions, in the same form as the Ré-vised Statutes, (2 Rev. St. 220, § 1,) but with additions, and omitting subdivision 8, which related to the admeasurement of dower. Subdivision 7 gives jurisdiction over guardians of infants “ and hr the cases specially prescribed by law, to direct and control their conduct, and settle their accounts, and concludes with the provision that “ this jurisdiction must be exercised in the cases and in the manner prescribed by statute.” Title 4 of the same chapter, art. 2, provides for accountings by executors and administrators. Title 6 relates to testamentary trustees, and provides for the manner of their accounting. Title 7, art. 1, 2, treats of guardians appointed by surrogates, and ac-countings by them. Article 8 is entitled “ Guardians Appointed by Will or Deed” and contains provisions for accountings by them, which differ materially from the provisions for the accounting of testamentary trustees.

The same distinctions which which were made in the Revised Statutes, and the amendments thereto, between guardians and testamentary trustees, and between guardians appointed by surrogates and guardians appointed by will or deed, are preserved in the Code of Civil Procedure. By section 2853, where a guardian of an infant’s person or property has been appointed by will or deed, the infant, or any relative on his behalf, may apply to the surrogate of the proper county to require the guardian to give security; and by section 2855, on the like application, the surrogate may, at any time',_ in his discretion, compel such a guardian to render and file an inventory and account in the same form as those required to be filed annually by guardians appointed by the surrogate’s court as prescribed in article 2 of the same title, and the surrogate may also order such inventory and account to be filed in the month of January in each year thereafter. Sections 2842 to 2845 are applied to these intermediate or annual accounts of testamentary guardians, but there is no provision for issuing citations on such accountings, or for the judicial settlement of such intermediate accounts, or the allowance of commissions on such accountings. By section 2844, the surrogate is required, in the month of February in each year, to examine such accounts for the purposes specified in the Code; which are (section 2845) that if, on such examination, the interests of the infant appear to require it, the surrogate may order a further account, or may institute proceedings for the removal of the guardian. The provisions of the Code are the same, in substance, as those of the previous statutes, which were considered in the before-cited case of Diaper v. Anderson, 37 Barb., 168, and which were therein held to be intended merely to inform the court as to the manner in which the guardian was discharging his trust, and not to confer jurisdiction upon the surrogate to judicially settle the guardian’s accounts while' the guardianship continued. The provisions of the Code appear to be framed with the view of harmonizing with that decision, and extending the jurisdiction of surrogates to the accounts of testamentary guardians, subject to the same principles which under previous statutes governed their jurisdiction over the accounts of guardians appointed by surrogates. Section 2856 empowers the surrogate’s court to compel a judicial settlement of the account of a testamentary guardian in any case in which it may compel a judicial settlement of the account of a guardian appointed by it; and section 2857 gives to the decree, made upon the judicial settlement of' the account of a testamentary guardian, as prescribed in this article, (article 3, tit. 7, ch. 18,) the same force as a judgment of the supreme court.

The only provisions authorizing the judicial settlement by the surrogate of the accounts of a guardian, whether appointed by will or by the surrogate, are contained in sections 2847, 2848, and 2849 of article 2 of title 7, and the last above quoted section 2857 of article 3. Section 2847 prescribes that a petition for the judicial settlement of a guardian’s account may be presented to the surrogate in three cases only : (1) By the ward after he has attained his majority; (2) by the executor, etc., of a ward who has died; (3) by the guardian’s successor. Section 2848 prescribes that a petition for the judicial settlement of the accounts of a general guardian of an infant’s person may be presented in certain cases by the general guardian of the infant’s property ; and section 2849 provides that a general guardian may petition the surrogate’s court for a judicial settlement of his accounts, and a discharge from his liabilities, in any case where any other person is authorized by the' two next preceding sections to petition for a judicial settlement of such accounts. Section 2857 applies these sections to testamentary guardians; and it is thus plain that no jurisdiction is conferred upon the surrogate’s court to judicially settle the accounts of a testamentary guardian, either on his own application, or that of any other person, except in one of three cases mentioned in section 2847, viz. (1) When the ward has attained his majority ; (2) when he has died; (3) when the' guardian has been superseded by a successor.

The rule declared in Diaper v. Anderson, 37 Barb. 168, therefore, still prevails ; and an attempted judicial settlement by a surrogate of the accounts of a guardian appointed by the surrogate, or a testamentary guardian, made either before or since the adoption of the Code of Civil Procedure, but while the guardianship continued, is void for want of jurisdiction. See Bulkley v. Van Wyck, 5 Paige, 536, 538.

There is good reason for this distinction between testamentary “ guardian” and testamentary “ trustee.” A trust in a will may endure during the whole life of a beneficiary, and there may be reasons for judicially passing and settling the accounts of the trustees from time to time. But a guardianship necessarily terminates with the minority of the infant, and there is no reason for judicially settling the accounts of the guardian during the infancy of the ward, so as to conclude him. When the infant becomes of age, or the guardianship is otherwise terminated and a new guardian is appointed, or the infant dies, is the proper time for judicially settling the original guardian’s account.

The result is that the decrees of December 30, 1878, and January 10, 1881, had no force or effect as adjudications, and all objections to the commissions and other charges in these accounts are open to the contestant. Whatever commissions are properly allowable should be determined, on the final accounting, according to the law existing at that time ; and if in view of sections 2738, 2850, 2856 of the Code of Civil Procedure, and 5 N. Y. 430, and note to section 2738, a question which we do not now decide the guardian is entitled to charge commissions, as guardian, on the principle, notwithstanding that he received them as executor, we think they are allowable upon the stock of the Singer Manufacturing Company.

The judgment of the general term and the decree of the surrogate should be reversed, and the matter sent back to the surrogate for a rehearing, without costs to either party.

All concur.


source: Caselaw Access Project

author: Per Curtam.

license: Public Domain

text:
    Sarah J. Creshull, Appl’t, v. Catherine Mallen, Impld., etc., Resp’t.

      (Court of Appeals,

      Filed January 25, 1887.)
    Appeal — Record oh — Stipulation as to.
    Upon an appeal to the general term of the city court of Brooklyn from an order made at the special term of that court granting a motion made by the defendant for a new taxation of costs, a memorandum containing an extrac't from the judgment and the defendant’s costs as taxed by the clerk was endorsed by the attorneys for the parties “ approved and assented to as and for papers on appeal.” This order having been affirmed by the general term it was further appealed to the court of appeals. The papers referred to in the notice of appeal and in the special term order were not before the court of appeals. Held, the appellant being the same as in the court below the memorandum might he presumed to contain all considered by her counsel as material to present the question intended to he raised, and that showing nothing which alone or with the other matter in the appeal book made the appellant’s objection intelligible, the order appealed from should be affirmed,

      P. V. R. Stanton, for appl’t; Morris Pearsall, for resp’t.
   Per Curtam.

-On the twenty-first of July, 1886, the plaintiff gave notice to the clerk of the city court of Brooklyn, and to Messrs. Morris & Pearsall, attorneys for the defendant, that she appealed to the court of appeals from an order of the general term of the city court, winch affirmed an order of the special term of that court, granting a motion made by the defendant for a new taxation of costs. It was made, as the order recites, upon all the papers in the action, and directed that the defendant be allowed, in addition to her costs as taxed by the clerk, |30 for a trial fee, and $10-additional because the trial occupied more than two days. The plaintiff appealed to the general term, where the order was affirmed.

The papers referred to in the notice and in the special-term order as papers in the case are hot before us. It appears, however, as claimed by the appellant, that on the twenty-sixth of May, 1886, before the hearing of the appeal at general term, a brief memorandum, containing an extract from the judgment, and the defendant’s costs as taxed by the clerk, was indorsed by the attorneys for the respective parties in these words: “ Approved and assented to as and for papers on appeal.” The appellant here was the appellant in the court below. The memorandum may be presumed, therefore, to contain all that.in the opinion of her counsel was material to present the question intended to be raised. It shows nothing which,-standing by itself, or which with reference to any other matter on the appeal-book, makes the objection of the appellant- intelligible. We discover no reason why the order appealed from should not be affirmed.

Order affirmed, with costs of appeal in this court, to be paid by the appellant to the respondent’s attorneys.

All concur.


author: Earl, J.

text:
    George W. Weeks, as Ex’r, etc., of Jacob Weeks, dec’d, v. Jacob Weeks Cornwell et al.

      (Court of Appeals,

      Filed February 1, 1887.)
    1. Trust — What hot valid — R. S. 723 § 55 — When no estate vests in-trustee — §§ 56, 58, and 59.
    After the disposition of part of his property a testator gave, devised and bequeathed all the rest of his estate, real and personal, that he might own at the time of his death and not by previous provisions of his will bequeathed in fee or upon trust, to his executors “to use the same as in their judgment” they might deem to be for the best interest of his whole estate; and in order to raise money for that purpose empowered them to mortgage the said land and after the performance of certain duties imposed to divide and pay the remainder at any time within ten years to parties then designated. Held, that this was an attempt to create two trusts, one to mortgage real estate, and that this not being for the benefit of legatees or to satisfy a charge upon the land was invalid by R. S. 723, § 55. That by §§ 56, 58 and 59 whether the trust was valid or invalid it did not suspend the power of alienation, nor prevent the vesting of the estate in devisees thereafter designated.
    2. Devise — time op vesting op property under.
    A clause in the will of the testator was in part as follows: “ Upon the termination of the real estate trusts herein contained, where I have not hereinbefore disposed of the fee of my real estate I.do hereby give, devise and bequeath, etc. Held, that the “ trusts ” referred to related to real estate of which the testator had not disposed of the fee. And that the trust attempted to be created as to that being invalid the devise took effect at once at the death of the testator.
    3. Legatees — Whek term will not be taken in its strict legal MEANING.
    A devise was made to each and every of the legatees of the testator an exception being made in regard to two. There was but one legatee strictly speaking, and the persons so excluded from the benefits of the devise were devisees under a previous provision. Held, that the word “legatees” was not intended to have its strict legal significance as one who takes personalty under a will, but that it comprised certain 17 persons, life beneficiaries under other clauses of the will, and the one remaining of the class from which the exception was made.
    Appeal from an order of the general term, first department, denying a motion on behalf of plaintiffs and certain defendants for a new trial in an action for partition where interlocutory' judgment for partition was affirmed on a case and exceptions, pursuant to section 1001 Code of Civil Procedure.
    Jacob Weeks died in the city of New York on the 9th day of September, 1881, leaving a widow, a will, a large amount of real and personal property, and no descendants. His widow died on the 7th day of April, 1882, and both he and she were, at death, upwards of eighty years old. In his will, which was dated May 9, 1881, he gave to his wife absolutely a large amount of real and personal property, and he devised to her. during her life four lots and the buildings erected thereon situated upon Fifth avenue in the city of New York, valued at $675,000. He devised several lots of land to his executors upon trust to collect the rents thereof during the life of his adopted son, Jacob Weeks Cornwell, and, after expending therefrom such amounts as they deemed necessary to keep the premises in good order and repair and properly insured against loss and damage by fire, to pay the remainder of such rents, when collected, to Cornwell during his life; and at his death he devised the same lots with the buildings thereon to his wife, Virginia, Cornwell, and to his children, Ida Van Cott, Clarissa Lyon and Millard Filmore Cornwell, share and share alike, the issue of such as may have died to take the share to which his, her or their parent would, if living, have been entitled. In sixteen other clauses of the will she devised particular parcels of land to his executors, upon similar trusts for other beneficiaries. After the death of each life beneficiary the land mentioned in each clause was devised to the wife and heirs of such beneficiary, share and share alike, or, where there was no wife, to the heirs or issue of such beneficiary ; and several of the clauses contain a provision that the issue of such life beneficiaries as shall have died shall take the parent’s share. He also devised in fee a lot of land to William Y. Parschall, and in the twenty-second and twenty-third clauses he devised in fee a lot of land to each, Ann Davey and Hugh Collins, two of his servants. By the twenty-seventh clause he authorized and directed his executors to repair or rebuild the buildings upon any of the lots of land devised to them in trust if the buildings should be partially injured or wholly destroyed by fire during the continuance of the trust, and in order to raise money for that purpose he' empowered them to mortgage the parcel or parcels of land upon which the buildings should be situated and charge the payment of such mortgage upon such parcels of land respectively. By the twenty-ninth clause he authorized and directed his executors, in case he should die leaving any building or buildings upon any of the lots of ground devised in an unfinished state, or having executed any contract or contracts for the erection of any building thereon, to finish and complete such building, and for that purpose he empowered them to mortgage the parcel of land upon which such unfinished building might be situated, or to which such contract might relate, and charge the payment of the mortgage upon such parcels of land respectively. By the thirtieth clause he authorized and directed his executors, immediately upon proving his will, or as soon thereafter as possible, to pay all taxes, assessments, mortgages or incumbrances whatsoever against his property at the time of his death, out of his personal estate, and if the personal estate should be insufficient for that purpose,, then he directed that any deficiency that might exist should be paid out of the income of Ms entire estate, except the income from the property devised for life to his wife.
    By the thirty-first clause he authorized and . directed his executors to pay the annual taxes and all assessments upon the property devised to them in. trust out of the income thereof respectively, and directed his wife to pay the annual taxes and all assessments upon the property devised to her for life. He appointed his wife, Jacob Weeks Cornwell, Samuel Weeks, Jr., and George WasMngton Weeks, executors of his will. The twenty-fourth and twenty-fifth clauses of the will are as follows:
    “ -Twenty-fourth. All the rest, residue and remainder of my estate, real and personal, that I may own at the time of my death, and not hereinbefore bequeathed in fee or upon trust, I give, devise, and bequeath to my said executors upon trust, to use the same as in their judgment they deem to be for the best interest of my whole estate; and, in order to raise money for that purpose, I empower them to mortgage the piece or parcel of land being the residue and remainder of my estate, and not hereinbefore disposed of in fee or upon trust, and, after paying and keeping paid all taxes and assessments upon said property, and expending such amounts as they may deem necessary to keep the said premises in good order and repair, and properly insured against loss and damage by fire, to divide and pay the remainder, at any time within ten years, to each and every of my legatees hereinbefore named, except Ann Davey and Hugh Collins, in the proportion in which his, her, or their specified legacies hereinbefore named and bequeathed bear to each other; the heirs of such legatee as may have died to take the share to which said legatee would, if living, had been entitled.
    “ Twenty-fifth. Upon the termination of the real-estate trusts herein contained, where I have not hereinbefore disposed of the fee of my real estate, I do hereby give, devise, and bequeath the fee of said real-estate trust property to each and every of my legatees herein named, except Ann Davey and Hugh Collins, to be divided among such legatees in the proportion in which his, her, or their specific legacies hereinbefore named and bequeathed bear to each other. The heirs of such legatees as may have died to take the share to which said legatee would, if living, have heen entitled; meaning and intending by this to regard each of my legatees, except Ann Davey and Hugh Collins, a legal heir .to my estate, limited to the said trust property in the proportion named.”
    The real estate put in trust for the 17 life beneficiaries was of the value of more than $1,300,000. The testator owned at his death the same real estate which he owned at the date of his will, and it is conceded that the real estate referred to and disposed of in the twenty-fourth and twenty-fifth clauses consisted of the four houses and lots in Fifth avenue which were devised to his wife for life.
    This action was commenced by certain of the heirs against the legatees and devisees mentioned in the will, and other heirs of the testator, for the partition of the four houses and lots: the claim of the plaintiffs being that the disposition of them made by the will was illegal and void, and that they descended to the testator’s heirs, and were to be divided among them as if he had died intestate. The court at special term held that under the twenty-fifth clause the property was legally and effectually devised, and that the devisees in fee were the 17 persons mentioned as beneficiaries in the 17 trusts created by the will, together with Parsehall, who was a devisee of a parcel of land in fee; and by its judgment it ordered that the 4 houses and lots should be sold, and tbe proceeds thereof divided as to the 17 beneficiaries in proportion to the value of the specific ^real estate from which they were respectively entitled to the income, and as to Parschall in proportion to the value of the fee of the land given to him. From the judgment of the special term the plaintiffs, and some of the defendants, who were heirs of the testator,appealed to the general term, and from affirmance there to this court.

      E. Ellery Anderson, S. H. Thayer, A. H. Stoiber, F. E. Smith, William T. Gh-aff and B. W. Putney, for applt. Flamen B. Chandler, Abner C. Thomas, John C. Coffin, Martin J. Keogh and J. Montgomery Peters, respt’s.

       Affirming 39 Hun, 643.

   Earl, J.

The appeal imposes upon us the difficult duty of construing the twenty-fourth and twenty-fifth clauses of this will. These clauses were drawn with great unskillfulness and carelessness and thus their meaning is very obscure and uncertain. As they concern and attempt to dispose of a very large amount of property, they must have been the subject of some deliberation, and the testator evidently had some meaning which is embodied, however inaptly, in the language used. What that meaning is, it is for us to ascertain if we can. If it is unascertainable, the case is the same as if no attempt had been made to express any, and the language used can have no effect. If Several meanings may be attributed to the language, each supported by equally strong reasons and probabilities, no one of them can be accepted as that which the testator meant to express. Important rights cannot be based upon mere conjecture.

But in the construction of wills as in the determination of questions of fact, and other questions of law, it is not to be expected that absolute certainty can always be attained. Upon questions of fact it is sufficient that there is a balance of evidence or probabilities in favor of one side or the other of the dispute, and upon such balance courts will rely in deciding the weightiest issues.

So in the construction of written instruments, courts will serutinize the language used, and however confused, uncertain and involved it may be, will give it that construction which has in its favor the balance of reasons and probabilities, and will act upon that. The intent of a testator may sometimes be missed but such is the infirmity of language and human judgment that such a result is sometimes unavoidable, as said in 1 Jarman, Wills, 643. “ In the construction of wills, the most unbounded indulgence has been shown to the ignorance, unskillfulness and negligence of testators. No degree of technical informality or grammatical or orthographical error, nor the most perplexing confusion in the collection of words, will deter the judicial expositor from diligently entering upon the task of eliciting from the contents of the instrument the intention of its author, the faintest trace of which will be sought out from every part of the will, and the whole carefully weighed together.”

The testator did not intend to die intestate as to any of his real estate, and it is, therefore, our duty, if we can, to so construe this will as to effectuate that intention. And we must also observe the rule which requires courts, if possible, so to construe any disputed provision in a will as to uphold it and make it valid, and, thus enforce the maxim ut res magis valeat quam pereat.

The testator made such provision for his heirs as he desired, and by upholding these clauses in his will as the courts below have construed them, we think his intention will be most nearly observed.

The only real estate trust the testator attempted to create in the twenty-fourth clause is one to mortgage the real estate therein mentioned. He devised and bequeathed all the residue of his real and personal estate to his executors upon trust, to use the same as in their judgment they deemed to be for the best interest of his whole estate. The word “ use ” is wholly inappropriate to real estate. This was the disposition to take effect at his death, and he had previously in his will given to his wife a life estate in these houses and lots, and hence, she, during her life, was entitled to the rents and profits, and for that reason the testator could not have intended that his executors were to use the houses and lots by receiving the rents and profits thereof. In writing that word the draftsman must have had in mind mainly and most prominently the personal property. That was to be used for the benefit of his whole estate, and thus it is specified how the real estate was to be used, to wit, by raising money upon it by mortgage, and that was the only use that could be made of it consistently with the prior disposition-’of it to his wife for life. What the testator intended was, to give to his executors the right to use his personal and real estate, the former in the way of the best interest of his whole estate, the latter to raise money by mortgage for the benefit of Ms whole estate; and it was the personal property and the money thus realized upon the real estate, which, after paying and keeping-paid all taxes and assessments upon the houses and lots, and expending such amounts as the executors might deem necessary to keep the houses in repair and properly insured, which, at any time within 10 years they were to divide and pay to each and every of his legatees mentioned. It is clear that the words, “ to divide and pay the remainder,” halve no reference to the real estate. The word “ pay ” is not properly used to denote the distribution or division of real estate. The testator could not have intended to give his executors the power to divide and deliver the real estate to the legatees at any time within 10 years, and thus put it in their power to interfere with his wife’s life estate. Then, too, if those words relate to real estate, the twenty-fifth clause providing for the final disposition of the real estate was unnecessary. The twenty-fourth clause mates a final ■disposition of the personal propert, including the balance of the money realized by mortgaging the real estate, and the twenty-fifth clause makes a final disposition of the real estate.

Hence there was an attempt to create two trusts by the twenty-fourth clause. One was a trust to mortgage the real estate, and that was invalid because the mortgage was- not for the benefit of legatees, or for the purpose of satisfying any charge upon the land. Rev. St., 723, § 55. But, even if valid, it would have vested no estate in the trustees, as it is provided in section 56 that “ a devise of land to executors or other trustees, to be sold or mortgaged, when the trustees are not also empowered to receive the rents and profits, shall vest no estate in the trustees ; but the trust shall be valid as a power, and'the land shall descend to the heirs, or pass to the devisees of the testator, subject to the execution of the power.” Section 58 provides that “where an express trust shall be created for any purpose not enumerated in the preceding sections, no estate shall vest in the trustees, but the trust, if directing or authorizing the performance of any act which may be lawfully performed under a power shall be valid as a power iii trust;” and section 59 provides that “ in every case where the trust shall be valid as a power, the lands to which the trust relates shall remain in or descend to the person otherwise entitled, subject to the execution of the trust as a power.” Hence, whether the trust attempted to be created in the twenty-fourth clause was valid or invalid, it did not suspend the power of alienation, nor prevent the vesting of the estate in the devisees mentioned in the twenty-fifth clause.

It is not important to determine whether the attempted trust can "have effect as a power, because, if it can, it still in no way interferes with or affects the disposition of the real estate made in the twenty-fifth clause. It may, however, be stated that the power has not been executed, and no party to this action claims that it ought to be, or that it is so definite in its objects that it can be. There was also an attempt to create a trust in the personal property, as above mentioned, which might last for 10 years, and which was probably expected to terminate at the death of the widow within that time. It is not important to determine whether that is a valid trust, as it in no way concerns the real estate, and all the parties to this action have assumed it to be invalid. There was nothing, therefore, in the twenty-fourth clause which could in any way interfere with or defeat the full and entire operation of the twenty-fifth clause. That provides that “ upon the termination of the real-estate trusts herein contained, where I have not hereinbefore disposed of the fee of my real estate, I do hereby give, devise, and bequeath the fee of said real-estate trust property” to the legatees named.

It is claimed by the appellants that the words, “ real-estate trusts herein contained,” have reference to all the 18 real-estate trusts created or mentioned in the will, and hence that the real estate could not vest under that clause in the devisees mentioned until the termination of all those trusts, and so the clause is invalid for various reasons. But we think these words refer to the real-estate trusts mentioned in the preceding clause. It is true that the plural “ trusts” is used. That may have been from the inadvertence of the scrivener, or because he had in mind the four houses and lots, or the various matters to which the money realized by mortgage was to be devoted. But it is clear that the “ trusts” referred to related to real estate of which the testator had not disposed of the fee, and the real estate mentioned in the preceding clause was the only real estate of which he had not disposed of the fee. Therefore the words, “upon the termination of the real-estate trust,” can have no meaning or effect attributed to them, as the trust attempted to be created had no term, no beginning or end, and the devise of the real estate took effect at once, irpon the testator’s death, as a vested remainder, subject to the life-estate previously given to his wife.

The only remaining difficulty of a serious nature which we encounter in the construction of these clauses is to determine who were meant by the “legatees.” The devise was to “ each and every of my legatees herein named, except Ann Davey and Hugh Collins, to be divided between such legatees in the proportion in which his, her or their specific legacies hereinbefore named and bequeathed bear to each other.” Strictly speaking there were no legatees mentioned in the previous clauses of the will, except his wife. She was the only person to whom personal property was bequeathed. All the other beneficiaries were given either real estate or the income of real estate through the hands of trustees. The word “ legatees,” as used here, cannot, therefore, have its strict legal significance as one who takes personality under a will, and it was not intended that it should. It was clearly meant to include persons to whom real estate or the income of real estate had been given, and this is made evident from the fact that Ann Davey and Hugh Collins, who were devisees of real estate, were excluded from the persons Avho were called legatees. The inference is that, but for the exception, the testator supposed they would be included in the term “legatees.” It is not believed that he intended to embrace his wife among those whom he called “ legatees.” He was a very old man at fhe time of his death, past eighty years, and when he made his will could not have expected to live long, or that his aged wife, also past eighty, would long survive him. He had given to her real estate in fee valued at over $200,000, besides a large amount of personal property, and the income and profits of the four houses on Fifth avenue. He had made liberal provisions for several of her relatives, and it is not probable, if he intended to make further provision for her, that he would have included her with others under the general designation of “ legatees.” The legatees mentioned in the twenty-fifth clause are clearly the same persons intended to be described by the term “ legatees ” in the twenty-fourth clause, and there it is quite clear that the wife was not intended as one of the legatees, because the distribution and payment there directed to be made might be postponed ten years, and was probably intended to be postponed until after her death.

There is also a reasonable probability that he did not intend to embrace among the legatees the devisees who took the real estate in remainder after the termination of the seventeen trusts. In several of the clauses the wives of the beneficiaries are named as devisees in remainder ; in several the devisees are the issue of the heirs of the beneficiaries, and in several it is provided that the issue of any one of the deceased heirs of a remainderman shall take the share the parent would have taken if living.

It is not reasonable to suppose that the testator meant to include among the legatees only the wives and'issue of life beneficiaries specially named, and not all the remaindermen specially designated, although not specially named, including the unborn issue and heirs of life beneficiaries. If the word “ legatees ” is to have the broad signification claimed, then it would be impossible during the life of any beneficiary to ascertain who the legatees are, and, therefore, impossible to uphold the devise in the twenty-fifth clause. If such a presumption would not render the clause invalid for any other reason it would render it so impractical and indefinite that the land could not be divided and distributed undei it.

It is clear that the word “ legatees,” used in the twenty-fourth clause, was not intended to embrace the unborn issue or heirs of any life beneficiary, because the distribution and payment there directed was to be made at any time within ten years after the death of the testator, and as the same word in the twenty-fifth clause is to have the same meaning, it cannot be held to embrace the unborn heirs of a life beneficiary, and as before said, unless it can be held to embrace all of the remaindermen, it can embrace none of them. This scheme of division and distribution, attributed to the testator by the appellants, is so extraordinary, impractical and embarrassing that it should not be taken to embody the testator’s intention.

Who then was meant by the word “ legatees ? ” We think that it is reasonably probable that the testator meant the life beneficiaries and Parschall. The fact that he accepts Hugh Collins and Ann Davey, wlio are devisees in fee, shows that Parschall, who was a devisee in fee, was meant to be included among the legatees. The value of the real estate devised to him is but $1,800, and his proportion thereof will be quite small. The life beneficiaries were prominently in the testator’s mind, and from their relationship to him or to his wife were the conspicuous objects of his bounty. They were selected as heads of families for whom he meant to provide, giving them the income of the property during life, and then giving the property in which they had a life interest to their widows, issue and heirs. As the property was thus disposed of after their use for it would be terminated by death, he evidently regarded it as if they were the real and only objects of his benefaction, and the provision for the remaindermen was on their account. This conclusion is fortified by a consideration of the last two paragraphs of the twenty-fifth clause. Did he mean by the heirs of such legatees as may have died ” the heirs of a remote remaindermen who might be wholly unknown to him ?

He clearly meant the heirs of a legatee known to him and then in his mind. When he said he meant to regard each of his legatees “ as a legal heir ” of the real estate mentioned, he probably had in mind some definite persons well known whom he meant to bring into the intimate relation with him and his estate of heirship.

We think these are reasonable views to take of the testator’s scheme, and they will render the twenty-fifth clause practical and valid, and we are, therefore, not without some hesitation and difficulty, brought to the conclusion that the court below was right in holding that the eighteen persons named, to-wit, the seventeen life beneficiaries and Parschall, were the sole devisees under the twenty-fifth clause of the will.

The next difficulty to be encountered pertains to the methods or basis for the division of the real estate between these devisees. It was to be divided in “ the proportion in which his, her or their specific legacies hereinbefore named or bequeathed bear to each other.” The words “specific legacies” have reference evidently to the specific real estate provided for each of the beneficiaries and their wives, heirs and issue. That is in each case specific. There is no difficulty in ascertaining what proportion each share of the real estate bears to all the real estate devised. The real estate provided for each beneficiary and after him for his family, is spoken of as his; and it is on the basis of the value of that real estate that his proportion of this real estate is to be ascertained, and that is the way in which it is directed to be divided by the judgment of the court below. And in that we concur. Any other basis for a division would be impractical, and should not, therefore, be adopted.

It must be conceded that much may be said against any construction which the court could give to the twenty-fifth clause; but, on the whole, we think that the construction we have thus given has the most reasons to sustain it, and probably accords with the intention of the testator. We have therefore concluded that the order appealed from is right, and should be affirmed, without costs to any of the parties.

All concur, except ANDREWS, J., not voting


author: Andrews, J.

text:
    John. B. Kunz, as Adm’r, etc., of George W. Kunz, deceased, Appl’t, v. The City of Troy, Resp’t.

      (Court of Appeal

      Filed, February 1, 1887.)
    1. MUNICIPAL CORPORATION — ClTY OP TROY — DUTY TO PROTECT STREETS AGAINST NUISANCES.

      The duty to keep the streets in the city of Troy in repair and free from obstructions, is a corporate duty resting upon the municipality, springing from the acceptance by the city of its charter, and the power of the municipal legislative body to protect the streets against nuisances, to the injury of the public light, or of individuals lawfully using them.
    2. Same — Powers of police department are auxiliary to — Laws 1870, oh. 598, tit. 2, § 2.
    The power conferred and the duties enjoined upon the police department by Laws 1870 ch. 598, tit. 2, § 2. are auxiliary and not exclusive.
    3. Same — Wiiat equivalent to actual notice op the existence of a nuisance.
    If the city authorities had no actual notice of a dangerous obstruction to the street, nevertheless, if their ignorance resulted from the omission of the duty of inspection, and of a degree of diligence which might reasonably be expected under all the circumstances, the opportunity of knowledge is equivalent in legal affect to actual knowledge, and the city is equally chargeable with negligence as if express notice had been actually proven.
    4. Negligence — What constitutes contributory negligence in the case op an infant.
    In case of an injury to an infant, a defendant whose negligence was a constituent element of the transaction, and without which the injury would not have happened, is legally responsible, notwithstanding the negligence of the infant, unless it appears that the parents or guardians were negligent in permitting the child to be brought into the situation which subjected it to the hazard and resulting injury.
    5. Same — When a question for the jury.
    Where an obstruction was placed upon the sidewalk of a street in a busy and frequented part of the city on Tuesday and remained there until Saturday, Held, that it was a question for the jury whether the city authorities charged with the care of the public streets, ought to have known of its existence, and have caused its removal.
    6. Complaint dismissal of — When erroneous.

      Feld, that in an action for damages for the death of a child resulting from the alleged negligence of the defendant where the jury would have been entitled to have found from the evidence that the father of the child left him at the door of a store to go into the store and make change, cautioning him not to go far away, and on his return from two to five minutes later, the accident had happened, it was error to impute negligence to the father as a matter of law.

      Appeal from a judgment of tbe supreme court, general term third department, affirming a judgment entered upon a nonsuit, directed by the court at the Éennselaer circuit.
    This action was brought against the city of Troy to recover ■damages for the death of plaintiff’s intestate, a boy about five or six years of age. The boy was killed by the falling of a counter which was standing tilted against a building in Federal street.

      E. L. Fursman, for appellant, R. A. Parmenter for respondent.

         Reversing 36 Hun, 615.

   Andrews, J.

We think the case should have been submitted to the jury. The duty to keep the streets in the city of Troy in repair and free from obstructions is a corporate duty resting upon the municipality, springing from the acceptance by the-city of its charter and the power of the municipal legislative body to protect the streets against nuisances, to the injury of the public right or of individuals lawfully using them. The charter (Laws of 1816, chap. 181, § 15 — )makesthe common council commissioners of highways within the city, and it is empowered to pass ordinances to regulate and keep in repair the streets in the city and to prevent incumbrances thereon, and it is made the duty of the mayor to cause the laws and ordinances of the city to be duly executed. Laws of 1870, chap. 598, tit. 2, § 2. By an ordinance passed in 1859, the placing of any obstruction upon any of the streets or sidewalks, interfering with the free use thereof, except when done under a license for the erection or repairing of buildings, is prohibited, and by another ordinance passed the same year, the mayor, members of the common council, and other officers mentioned, were authorized to order any obstructions placed in the streets to be removed. The city was not relieved from the duty under the charter to keep the streets from obstructions by the creation of the board of police commissioners, first established by chapter 520 of the Laws of 1870, and the duty imposed upon the police force by the twenty-third section of the act to remove nuisances from tbe public streets, assuming, as is claimed, that the board of police commissioners, as constituted, is an independent body, not subject to the control of the municipal corporation, or amenable to its jurisdiction. It is sufficient for the purposes of this case to say that the powers conferred and the duties enjoined upon the police department by the act of 1870, in respect to the streets, are auxiliary only and not exclusive. Conrad v. Village of Ithaca, 16 N. Y., 158; Todd v. City of Troy, 61 id. 506.

The negligence, if any, on the part of the city in the present case does not arise from any affirmative act, but from an alleged omission to exercise proper care and supervision, and permitting the counter, unlawfully placed on the sidewalk by McLaughlin, to remain there after notice of the obstruction. The death of the plaintiffs intestate, caused by the falling of the counter, demonstrates that it was a dangerous obstruction on.the sidewalk. It is quite probable that it would not have-fallen without the agency and contact of the children who were playing about it. But such an interference might reasonably have been anticipated, and to place a large object as the counter was on a sidewalk on a frequented street, tilted in such a manner that it could be thrown down by two or three children of five or six years of age, running against or climbing upon it,, was plainly an unlawful and negligent act. The city, however, was not responsible for the original wrong. Its culpability, if any, as we have said, consists in not interfering to cause the removal of the obstruction after due notice of its existence. It is not claimed that there was any actual notice of the obstruction to the mayor, or the legislative body, or any city official, unless-notice to the patrolmen was notice to the city. It is denied that notice to members of the police force was notice to the city,, for the reason before indicated. But, aside from the fact that, the obstruction was observed by patrolmen, the counter was placed on the sidewalk on Tuesday, and remained there until Saturday, the day of the accident, and it is not claimed that-meanwhile any measures were taken by the authorities to have the obstruction removed. This lapse of time, together with the fact that Federal street was in a busy and frequented part of the city, made it, we think, under the authorities, a question for the jury whether the city authorities, charged with the care of the public streets, ought to have known of the obstruction, and to have caused its removal before the accident. If the city authorities had no actual notice, nevertheless, if their ignorance resulted from the omission of the duty of inspection, and of the degree of diligence which might reasonably be expected under all the circumstances, the opportunity of knowledge stands, for the purposes of the case, as actual knowledge, and the city is equally chargeable; as if express notice had been actually proven. Weed v. Village of Ballston Spa, 76 N. Y., 329, and cases cited. It is obvious that this rule, unless carefully administered by courts and juries, may impose unjustifiable burdens upon municipal corporations. The rule requiring care on the part of municipalities in protecting and keeping safe the public streets, and which subjects such corporations to the consequences of a disregard of their statutory duties in this respect, is wholesome, and founded, we think in just principles. The danger is that courts and juries may not sufficiently take into account, in determining the question of negligence, the extent of roadways in a city under the supervision of the city authorities, the unavoidable delay often attending the action of municipal authorities, and financial and other embarrassments. Where the question of negligence in not removing an obstruction unlawfully placed in the street by third persons depends upon implied notice, what is a reasonable time from which notice is to be inferred must be determined upon the circumstances, giving weight to the consideration that municipal authorities cannot be expected to act with the promptness and celerity of individuals in conducting their private affairs.

The remaining question relates to the alleged negligence of the plaintiff’s intestate. The intestate was a child between five and six years of age. We understand the rule to be that, in an action for an injury founded on negligence, contributory personal negligence cannot be attributed to a child of very tender years, who from his age cannot be supposed capable of exercising judgment or discretion, although the injury would not have happened without his concurring act, and although that act, if committed by an adult, would be a negligent one. In such a case, a defendant whose negligence was a constituent ■element of the transaction, and without which the injury would not have happened, is legally responsible, notwithstanding the negligence of the infant, unless it appears that the parents or guardians were negligent in permitting the child to be brought into the situation which subjected it to the hazard and resulting injury. There is an obligation, in general, upon all persons to conduct themselves with prudence and care, and not recklessly, or even incautiously expose themselves to danger even from the negligent acts of others. But the law exacts no impossibility. It does not require an infant before reaching the age of discretion to exercise discretion. But it imposes upon parents and guardians the duty of using reasonable care to protect those incapable of protecting themselves, and if they fail to exercise such care, and the infant is thereby brought into danger, and suffers injury from the negligent act of another, their negligence is deemed the negligence of the infant. The rule of imputable negligence operates harshly upon" tile innocent and unconscious child, but any other rule would put upon the defendant a loss for which he was only in part responsible.

In Hartfield v. Roper, 21 Wend. 615, it was held, as a matter of fact, that there was no negligence on the part of the defendant, and that there was negligence on the part of the parents in permitting a child of two and a half years of age to be in the roadway. The new trial in that case was properly granted on either ground. There are some remarks in the opinion which, disconnected from the context, may be construed as sustaining the proposition that, although there was no negligence on the part of the parents, the plaintiff could not maintain the action if the conduct of the child contributed to the injury. But we understand the present doctrine on the question to be thatit is not •sufficient to defeat a recovery for an injury to a child not sm'/im's, caused by the negligence of a defendant, that the act of the child was one which in an adult would be deemed a negligent one contributing to this injury. There must also be concurring-negligence on the part of the parents or guardians. Ihl v. Fortysecond St. R. Co., 47 N. Y. 317; McGarry v. Loomis, 63 N. Y. 104. If no such negligence is found, the doctrine of contributory negligence has no application.

In this case the child, in plajdng about the counter, was indulging a natural instinct in amusing himself, and was not guilty of legal negligence, “ although he contributed to the mischief by his own act.” Lord Denman in Lynch v. Nurdin, 1 Adol. & E. (N. S.) 30. The law does not define when a child becomes sui juris. If there was any question whether the plaintiff’s intestate had sufficient discretion to understand the danger of the situation, it should have been left to the jury, with proper-instructions as to the degree of care exacted of a child of tender years, under the circumstances. Mangam v. Brooklyn R. Co., 38 N. Y. 455; McGovern v. New York Cent. & H. R. R. Co., 67 N. Y. 417; Byrne v. Same; 83 N. Y. 620; Dowling v. Same, 90 N. Y. 670; Railroad Co. v. Stout, 17 Wall 657.

It is insisted, however, that the father of the intestate was chargeable with negligence in permitting the child to be on the sidewalk unattended. It has been held that it, is not per se wrongful or negligent to permit children to play in the street. McGarry v. Loomis, supra; McGuire v. Spence, 91 N. Y. 303.

It may or may not be negligence, depending upon circumstances. It was, we think, for the jury to determine whether the father of the intestate was guilty of negligence. The plaintiff is entitled to the most'favorable inference deducible from the evidence, and, in reviewing the nonsuit, all contested questions of fact are to be deemed established in his favor. The jury would have been entitled to have found from the evidence that the father left the child at the door of the store, to go into the store to make change, cautioning the boy not to go far away, and on his return, from two tó five minutes later, the accident had happened. It would be, we think, too strict a rule to impute negligence to the father, as a matter of law, under such circumstances. See Cosgrove v. Ogden, 49 N. Y. 255.

We think the court erred in directing a nonsuit, and that the judgment should be reversed, and a new trial granted.

All concur.


text:
    People ex rel Panama R. R. Co., Appl’ts, v. Commissioners of Taxes of New York City and County, Resp’ts.

      (Court of Appeals,

      Filed February 1, 1887.)
    1. Taxes and assessments — Franchises op railroad coepoeation not REAL ESTATE LAWS 1857, CHAPTER 456. — REV. S'TAT. ClIAP. 13, TIT. 1. § 1.
    A franchise granted, to a corporation to construct a railroad between certain termini vests the moment the corporation is created. It is an incorporeal right annexed in some general sense to the road when constructed but not a part of the land, nor an interest in land. It cannot be included in the valuation of the constructed roads real estate, for the purpose of ascertaining the deduction.to be made under the Laws of 1857 chapter 456, See Rev. Stat., chapter 13, tit. 1, § 1.
    2. Same — Assessed value — How obtained — Wiiat exempt.
    Under the Laws of 1857, chapter 456 the capital stock of a corporation less the part thereof owned by the state, or by literary or charitable institutions or exempted from taxation by the Revised Statutes is to be assessed at its-actual value, whether more or less than its nominal amount, deducting, however from such actual value the assessed value of its real estate and shares owned by it in other taxable corporations, and also from its surplus or reserved funds, if any, an amount not exceeding ten per cent of its capital.
    3. Same —Real estate out op the State — Measure op value.
    Where a corporation, liable to taxation under the Laws of 1857 has real estate in another state or country, the statute requires that, in making the assessment, the reduction on account of said real estate shall be measured by its actual value; arid the price paid for the. real estate in the absence of other and better evidence may be taken as representing such value.
    4. Same — Certiorari to review assessment — Burden op proop.
    In certiorari to review the assessment made by the commissioners of taxes of the capital stock of the relator, it was incumbent upon the relator before he was entitled to call upon the court to correct the assessment by increasing the sum to be deducted for the value of its real estate, to give evidence and furnish data showing that the actual value exceeded the sum fixed by the commissioner.
    5. Same — When court can interfere.
    It is only when a tax law transcends the legislative power that courts can interfere.
    Appeal from an order of tbe supreme court, general term, first department, affirming an order of tlie New York county special term dismissing a writ of certiorari to review an assessment for tbe purpose of taxation.

      William Gr. Ohoate, for relator, appl’t; James C. Carter, with Cieorge P. Andrews, for resp’ts.

       Affirming 40 Hun. 631, mem.

   Andrews, J.

Tbe general rule for the taxation of corporations- liable to taxation on their capital is prescribed in section 3, chap. 456, of the Laws of 1857, as follows: “The capital stock of every corporation liable to taxation, except such part of it as shall have been excepted in the assessment roll, or as shall have been exempted by law, together with its surplus profits or reserved funds, exceeding 10 per cent of its capital, after deducting the assessed value of its real estate, and all shares of stock in other corporations actually owned by such company, which are taxable upon their capital stock under the laws of this State, shall be assessed at its actual value, and taxed in the same manner as the other personal and real estate of the county.”

The words in this section, “ except such part of it as shall have been excepted in the assessment roll,” are taken from section 10, title 4 of chapter 13 of the Revised Statutes, entitled “ Of the Assessment and Collection of Taxes,” and probably refer to stock of the corporation taxed, belonging to the State or incorporated literary or charitable institutions, which the assessors by section 6 were required to specify in the fourth column of the assessment roll and deduct from the amount of the capital stock. See Comstock, J., in People v. Comrs. of Taxes, 28 N. Y. 223.

The further exception in the Act of 1857, of such part of the capital stock “ as shall have been exempted by law,” refers to the general exemption in section 4, title 1, of the same chapter of the Revised Statutes. See Denio, J., in 23 N. Y. 195.

Under the Act of 1857, as now construed, the capital stock of a corporation, less the part thereof owned by the State, or by literary or charitable institutions, or exempted from taxation by the Revised Statutes, is to be assessed at its actual value,’ whether more or less than its nominal amount, deducting, however, from such actual value, the assessed value of its real estate and shares owned by it in other taxable corporations, and also from its surplus or reserved funds, if any, an amount not exceeding 10 per cent of its capital. Oswego Starch Factory v. Dallaway, 21, N. Y. 449; People v. Comrs. of Taxes, 95 N. Y. 554.

We understand it to be conceded by the learned counsel for the relator that the Panama Railroad Company is- subject to taxation under the Act of 1857. It is a New York corporation, operating a railroad across the Isthmus of Panama, under its charter, andas assignee of a grant or concession to certain individuals of an exclusive right'to construct and operate a railroad across the isthmus, granted by the Republic of New Granada, and has its principal office and place of business in the City of New York.

The question raised relates to the assessment of the Corporation in the City of New York, for the year 1882; and the specific aud sole controversy upon the merits is whether, upon the return of the certiorari and the evidence taken in the proceedings under the order of the court, the Commissioners of Taxes, in making the assessment deducted from the actual value of the capital stock of the relator the full value of its real estate.

The nominal capital stock of the Corporation is $7,000,000. The Commissioners fixed its actual value, at the rate of 104 per cent above its par value, making-in the aggregate $14,280,000. From this aggregate they deducted $700,000, being an amount equal to 10 per cent of the capital. They made a further deduction of $8,922,870, the amount which the relator had paid out for its real estate on the isthmus. There remained after making these deductions the sum of $4,657,130, which sum was fixed by the Commissioners as the amount of the assessment.

There was no error in the mode adopted by the Commissioners of Taxes, in ascertaining the amount of the capital stock of the relator liable to assessment. It is true that the deduction on account of the real estate is not in terms of the assessed value.

The Legislature, in directing a deduction of the assessed value of the real estate, doubtless had primarily in view strictly domestic corporations carrying on business in this State, and whose real estate was located therein and therefore subject to our assessment laws. But the assessed value of real estate is in theory its actual value ; and where a corporation, liable to taxation under the Laws of 1857, has real estate in another State or country, the just construction of the statute, as applied to a corporation so situated, requires that the deduction shall be measured by its actual value; and the price paid for the real estate, in the absence of other and better evidence, may be taken as representing such value. Eaiíu, J., in People v. Comrs. of Taxes, 95 N. Y. 562.

It is insisted, however, that it was proved by uncontradicted evidence that the relator’s real estate on the isthmus was worth at least the amount of $15,000,000, a sum more than sufficient to offset the value of the capital stock of the Company as ascertained by the Commissioners, and which, if allowed, would have prevented any assessment whatever.

This contention proceeds, we think, upon a false theory adopted by the relator for ascertaining the value of its real estate. The real estate consisted of a road bed across the isthmus 100 feet wide, of real estate used for terminal facilities at Aspinwall and Panama, with the structures thereon, and of alternate sections of land on the line of the relator’s road, granted by the local government.

The cost of all the real estate purchased by the relator was comparatively trifling, and the land granted by the government was, as appeared, of very little value. The sum of $8,972,879, deducted by the Commissioners of Taxes, as the amount paid for real estate, represented in most part the sums expended by the relator in the construction of its road. There was no evidence given of the market value of the real estate at the time of the assessment. The sole proof upon which the relator rested its case was this: The relator proved the net income of the Company from its traffic and business in 1880 1881 and 1882. This was followed by showing that the average income of those years capitalized would produce a sum exceeding §15,000,000. The actual value of the locomotives, cars, equipment and other personal property of the Company, was shown in round numbers to be §1,000,000.

It is assumed from these premises that the sum of §15,000,000 represents the actual value of the real and personal property of the Railroad Company, and that the value of the real estate separately is ascertained by deducting from the aggregate value the sum of §1,000,000, the value of the personal property.

The evidence above referred to is supplemented by proof that in 1881 a contract was entered into by the relator and its stockholders for the sale to the Interoceanic Canal Company of a large part of the shares of the relator’s company, at the price of §250 a share, reserving to the old stockholders the money, personal securities and surplus belonging to the relator. It is also-to be mentioned that the president of the relator testified in general terms that the real estate of the company was worth §15,000,000 ; but this estimate, as subsequently explained, was based on the theory of capitalization of the income, to which we have referred. We are of opinion that the evidence given afforded no legal basis upon which the court could change or reduce the assessment, or upon which it could find, as matter of fact, that the actual value of the real estate exceeded the sum allowed by the commissioners of taxes. It is unquestionable that the value of the real estate of a railroad corporation, its roadway, tracks, structures, lands, and whatever is known as realty, enters into and forms a constituent element in the aggregate value of the capital stock. This is true of every species of property having„a value, and owned by the corporation, whether real, personal, or mixed. But it is equally true that the value of the franchise of the corporation is an imporatant element in determining the value of a railroad as a whole, or the value of its capital stock. This is especially true when the franchise is an exclusive one, covering an important and necessary line of communication.

It is impossible to doubt that the exclusive franchise of the Panama Railroad Company to construct and operate a railroad across the isthmus of Panama was a most important constituent in determining the value of corporate property. It insured its productiveness, and the continuance of a large income to the company for the operation of the road. The rental value of real estate is frequently resorted to as a guide in fixing its aggregate value. In many cases it is a reasonable assumption that real property is worth a capital sum equal to that represented by the capitalization of its ordinary net rental. So, also,, the property of the railroad corporation may he worth a sum capitalized on the basis of its average income and earning-capacity. But since the income is derived from the use of its real and personal property, and also of its franchise, it is manifestly quite impossible to ascertain, from proof of the income alone, the value of either element entering into the aggregate value of the corporate property. While it is not an unreasonable supposition that the real estate owned by the relator may be of greater value than the sum expended in its purchase and improvement, yet the relator gave no evidence upon which the court could determine that its actual value exceeded that sum, or as to the proportion the value of the real estate bore to the whole value of the corporate property. It was incumbent upon the relator, before he was entitled to call upon the court to correct the assessment by increasing the sum to be deducted for the value of its real estate, to give evidence and furnish data showing that the actual value exceeded the sum fixed by the commissioners, and this the relator failed to do. See People v. Davenport, 91 N. Y. 581, 583. It was not enough that the evidence raised doubt, or permitted a conjecture, that injustice may have been done.

There would be less difficulty in the relator’s case if it could be successfully claimed that the franchise of the relator was, within the tax laws, to be reckoned as a part of the realty. On general principles, corporate franchises are not real property. They are classed as incorporeal hereditaments, though, as stated by Chancellor Kent, (3 Kent, 459,) with some impropriety, as-they have no inheritable quality. They are defined by CLIFFORD, J., in Society of Savings v. Coite, 6 Wall. 606, as “legal estates vested in corporation as soon as it is in esse.” They are as varied as the purposes for which corporations are created.

The relator by its charter, was authorized to construct a railroad across the isthmus of Panama, under a grant made by the republic of New Granada to certain individuals, and to that end to purchase the rights, privileges, and immunities of the grantees under the grant. A franchise granted to a corporation to construct a railroad between certain termini vests the moment the corporation is created. It may at that moment be of very great value, although the corporation owns not a foot of land* and has not expended a dollar in money. When the road is constructed the franchise secures to the corporation the right to operate its road under the conditions and with the privileges conferred by the charter. But this does not give to the franchise the charactor of realty. It is an incorporeal right, annexed in some general sense to the road when constructed, but is not a part of the land, nor an interest in land, although it may give to the land a greater value than it would otherwise have had. See Com. v. Hamilton Manuf'g Co., 12 Allen, 298.

But, independently of these general considerations, it is clear that, under the definitions contained in the statutes of this state regulating taxation, the value of the relator’s franchise cannot be included in the valuation of its real estate for the purpose of ascertaining the deduction to be made under the act of 185T. It is declared in the first section of the chapter of the Revised Statutes relating to taxation (chapter 13, tit. 1, § 1) that “ all lands and personal estate within this state, whether owned by individuals or corporations, shall be liable to taxation, subject to the exemptions hereinafter specified.” The second section declares that “ the term ‘ land,’ as used in this chapter, shall be construed to include the land itself, all buildings and other articles erected upon or affixed to the same, all trees and under-wood growing thereon, and all mines, minerals, quarries, and fossils in and under the same, except mines belonging to the state; and the terms ‘ real estate,’ and ‘ real property ’ whenever they occur in this chapter, shall be construed as having the same meaning as the term ‘ land ’ thus defined.” Section 3 declares that “the terms ‘personal estate’and ‘ personal property,’ whenever they occur in this chapter, shall be construed to include all household furniture, moneys, goods, chattels, debts due from solvent debtors, whether on account, contract, note, bond or mortgage, public stocks, and stocks in moneyed corporations. They shall also be construed to include such portions of the capital of incorporated companies liable to taxation on their capital, as shall not be invested in real estate.”

It seems to admit of no doubt that the term “land,” as defined In the second section, does not include the franchise of a corporation. The act of 1857 does not enlarge its meaning as defined in the Revised Statutes. It simply makes the assessed value of the real estate the basis of deduction in place of the amount paid therefor, as provided in the prior law. Chapter 13, tit. 4, §§ 2, 6. It is well recognized that corporate franchises may be made distinct subjects of taxation. They are regarded in tax laws as personal property, and are frequently so declared, as in chapter 761 of the Laws of 1866, in respect to the taxation of saving banks.

We have, for the reasons suggested, reached the conclusion that neither upon the facts presented to the commissioners of taxes, nor upon the additional evidence, was it made to appear that any error was committed by the commissioners in fixing the value of the real estate of the relator at the sum paid therefor. It must, however, be admitted that the rule of assessment and taxation declared in the statute of 1859, as applied to the relator, operates harshly and unequally. In respect to domestic corporations conducting their business and having their property within the state, it is jüst and equitable. The whole property of corporations so situated have the protection of our laws, and they are justly taxable upon its entire value, and double taxation cannot ordinarily happen. It can never happen, except where some portion of their personal estate may be in another state or country, and is taxable under the laws of the of the foreign jurisdiction, a condition of things which would not ordinarily exist. In case the assessed value of the real estate of such corporations is more than its actual value, it results in a diminished taxation of its capital stock. If it is less, the equilibrium is restored by an increased taxation of its capital. So that, practically, the tax is levied only' on the actual value of the property of the corporation within the state. But the relator stands in quite a different situation. It is liable to taxation on its real and personal estate in New Granada, and the case shows that nearly its whole property, real and personal is within that jurisdiction and that it pays an annual subsidy to that government of $250,000 in lieu of taxes, on its real estate, immunities, and personal property. The injustice of taxing the corporation here, under the rules established by the act of 1857 is apparent. It results in double taxation on a great share of its taxable property ; which is contrary to all just principles of taxation. It Avould seem that a franchise tax, and a tax on its real estate and its tangible personal property having its actual situs within our own jurisdiction, and its credits, is all that in justice the state should exact from the relator, as its contribution to the public burdens, and as the equivalent for the protection offered.

The act (chap. 468 of the Laws of 1881). “ To authorize the formation of corporations for the purpose of acquiring, constructing, and operating railroads in foreign countries,” expressly provides (§ 13) that corporations formed under the act shall be “ subject to taxation upon the amount of the real and personal property owned by such corporation within this state.”

It is not important to determine in this case whether this section was intended to abrogate the general rule prescribed by the Act of 1857, as to corporations organized under that Act. If so intended, it would seem to be a just rule to apply to the relator But the remedy is with the Legislature. It was only when a tax law transcends the legislative power that courts can interfere. This is not claimed in respect to the Act of 1857. See People v. Mayor, 4 N. Y., 419; People v. Smith, 88 N. Y., 577; Kirtland v. Hotchkiss, 100 U. S. 491; People, v. Gold & Stock Tel. Co., 98 N. Y. 67.

We do not understand the position that the act of the Commissioners will subject the relator to a tax for state purposes, contrary to the provisions of chapter 361 of the laws of 1881. The Commissioners simply fixed the amount upon which the relator was taxable.

They did not, so far as appears, lay a tax or determine for what purpose taxes might be levied.

Having reached a conclusion adverse to the relator on the merits, it is unnecessary to consider the questions of form and remedy argued by counsel.

The order appealed from should be affirmed.

Earl, DaNrorth, and Fihch, JJ., concur.

Rttgbb, Ch. J., and Rapallo, J., dissent.