text:
    John C. Robert et al., Appl’ts, v. H. M. Sadler et al., Resp’ts.

      (Court of Appeals,

      Filed January 18, 1887.)
    1. Highway — Rights op public in — Extends only to eight op Wat and INCIDENTS.
    The public under our law acquire only a right of way in a highway, with the powers and privileges incident to that right. The owner of the fee retains his exclusive right in all mines, quarries, springs of water, timber and earth for all purposes not incompatible with the right of way.
    2. Same — Removal op eaeth not an incident to the bight op way.
    The digging of pits in the street during the process of grading and removing gravel therefrom to use in other parts of the street is not incident to the right of way and is an invasion of the rights of the owner of the fee.

      Appeal from a judgment of the'supreme court, general term, second department, affirming a judgment of King’s county-special term, dismissing the complaint in an action to enjoin the defendants from digging pits on plaintiff’s land, and from taking and carrying away gravel therefrom.
    This action was brought by Jane Robert to restrain the defendants, the commissioners for grading Eighteenth avenue in the town of New Utrecht, and contractor, from digging pits in that part of the avenue, lying in front of her premises, for use on other parts. The original plaintiff dying during the pendency of the action, it was continued in the names of the present plaintiffs.

      John D. Pray, for appl’ts; William Sullivan, for resp’ts.

       Reversing 37, Hun, 377.

   Finch, J.

The constitutional question in this case has been decided against the appellant in Hubbard against the same defendants, which respected the laying out and opening of the .same street or avenue involved in this appeal. But a further question not in that case is raised in this. The findings of fact establish that the grade of the avenue was fixed and a contract for its construction made with one Curran. By the terms of that •contract he was required to cover the roadway to the depth of fifteen inches with gravel, hard pan or other materials approved by the commissioners. The land within the road-lines crossing plaintiff’s premises was higher than the grade fixed, and required a removal of the earth to the depth of such grade and possibly fifteen inches below it. The contractor not only removed this material above grade and used it upon the avenue for the purpose of filling and construction, but he dug pits in the roadway to a depth of six feet below the grade in order to get gravel with which to perform his contract without paying for it, and it is found that these pits thus made are “ intended and required ” to be filled up again with earth before the avenue is completed. The complaint alleges that the pits were dug on “ the sidewalk of said avenue,” and the answer admits that “ the gravel pits of which the plaintiff complains have been dug for'the purpose of obtaining, gravel to be used on the roadway.” It is conceded that the public took only an easement for a street or avenue over the plaintiff’s premises, and that he retained the fee in that part of the land on which the pits were dug. The justification which has succeeded goes tfpon the ground that the acts complained of were embraced in the easement and authorized by it. The question involved was properly raised by exceptions. The courts have held that where to reach and prepare the surface of the road in accordance with its grade line, superincumbent material is necessarily removed, it may be used upon other parts of the road and on the premises of other land-owners, and that where there has been no negligence in construction, consequential injuries necessarily resulting cannot be recovered. It was said in Pumpelly v. Green Bay Co., 13 Wall, U. S., 181, that .tbis class of decisions “have gone to the uttermost limit of sound judicial construction,” and “ in some cases beyond it.” The observation was just. To take merely an easement in land, leaving the fee in the owner, and then by advancing stages of judicial endurance sap the value and utility of the fee by adding its benefits to the easement, is scarcely consistent with a policy which is at the same time sedulously protecting the rights of abxitters having no fee in the street whatever,, to their easements of light and air and access. It is perfectly 'well settled that in a case like -the present the public acquire' only a right of way with the powers and privileges incident to that right (Jackson v. Hathaway, 15 Johns., 452) and that the owner of the fee retains his exclusive right in all mines, quarries, springs of water, timber and earth for all purposes not incompatible with the right of way. The question in every case turns upon what is “ incident ” to the construction or maintenance of' the right of way.

In Higgins v. Reynolds, 31 N. Y., 156, stone was taken from, the limits of a highway and its value recovered.

In Niagara Falls Suspension Bridge Co. v. Bachman, 4 Lans. 523, it was said that gravel might be removed to other parts of the road, but it is quite apparent that this was gravel necessary to be removed in order to get the highway to its grade.

In Fisher v. Rochester, 6 Lans., 225, the work done was the construction of a sewer and the contractor used stones excavated from within the street limits. It was held that they belonged to the land owner.

In Williams v. Kenney, 14 Barb., 631, the owner of the fee-took away sand from within the limits of the highway but without injury to the public right of travel, and his action ivas sustained.

In Denniston v. Clark, 125 Mass. 216, the gravel removed was a bank above the grade necessary to be cut through and such as afterward from natural causes fell 'down from the side-slopes and filled the ditches which it became necessary again to-open.

These are the cases cited by the general term ; and none of' them sustain the conclusion reached: those which are not adverse justify only the taking of earth or soil which the process, of construction or repair requires and necessarily 'compels to be-removed. I have found no case in this State which goes further, and am unwilling to pass beyond those limits. Here the pits were dug to be filled again. Concededly the process was-to take from the land owner valuable material and substitute a poorer quality. Digging the pits was not only no incident necessarily or naturally growing out of construction, but a deliberate destruction of the grade when reached and which did not need to be disturbed, but on the contrary compelled replacement and repair of the mischief done..

Of the two cases cited from other States one goes no further than we here concede to be just. New Haven v. Sargent, 38 Conn. 50. The court is careful to speak of the soil taken as that “which must necessarily be removed by some one in grading the street.”

The other, Bissell v. Collins, 28 Mich., 277, seems to go further because the “ major portion of the gravel was taken from below the grade of the street.” The report of the case furnishes no details and it may be that the gravel removed was loosened and made superfluous at the point of removal in the ordinary process of grading. If it goes further, we do not think its doctrine should be followed.

The cases which hold that the fee in a highway devoted to the perpetual easement of the public use is of only nominal value need not be considered. If such value is in any ease a question of law which the court may determine, the smallness of the value does not justify a seizure of the fee without due and lawful authority or its destruction by indirect rulings. No invasion of the property rights of the citizen can safely be deemed trifling.

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

All concur except Rutger, Ch. J., and Earl, J., not voting.


source: Caselaw Access Project

author: Rapallo, J.

license: Public Domain

text:
    Nathan Hutkoff, Resp’t, v. William J. Demorest, et al, Appl’ts. Emily R. Caldwell, et al, Respt's, v. Franklin J. Wall, Appl’t. Gotthelf Greiner, Resp’t, v. Jettel H. Hamburger, App’lt.

      (Court of Appeals,

      Filed January 18, 1887.)
    1. MARINE COURT OF NEW YORK CITY — NOT A COURT OF RECORD BETWEEN 1849 and 1872.
    The Marine court of the city of New York (now the city court) was not a court of record in the legal sense of the term from 1849 until 1872.
    2. Same — Appear — Direct to court of appeals — Const. N. Y. § 22, art. 6.
    Section 22, article 6 of the State constitution applies only to courts of record, and was intended to embrace only courts of record which were established in cities at the time of the adoption of article, 6 viz: in December 1869. It therefore excluded the Marine court from the operation of the jower therein given to the legislature to authorize appeals direct to the court of appeals.
    3. Court of record — Wiiat constitutes — Clerk and seal
    To constitute a court of record in a legal sense it is not sufficient that the vcourt should have a clerk and a seal.
    Motion for reargument of the motion to dismiss an appeal from a judgment of the general term of the city court of New Y ork, to tbe Court of Appeals. (See report of decision on former argument, 3 N. Y. State Rep’t., 631.)

      W. S. Rose, for the motion. Henry Wehle, opposed.
   Rapallo, J.

On the argument of the motion to dismiss the-appeal in this ease, no reference was made to section 22 of article 6 of the constitution, and a motion for a reargument is-now made on the ground that the omission was owing to excusable inadvertence of counsel, and that the court was thereby misled. Section 22 of article 6 provides that “ the legislature may authorize • the judgments, decrees, and decisions of any Court of record of original civil jurisdiction establishe’d in a city to be removed for review directly into the court of appeals.”' This section, not having been referred to on the argument, was-not noticed in the opinion then delivered. .As it now appears-to be relied upon by the counsel for the appellant,' we have examined the question whether it affects the present case, and have come to the conclusion that it does not require us to change our decision.

It will be observed that section 22 applies only to courts of record, and, in our judgment, was intended to embrace only courts of record which were established in cities at the time of the adoption of article 6, viz., in December,. 1869. There were at that time in existence, in addition to the court of common pleas and superior court of the city of New York, several other local courts established in cities, viz., the superior court of the city of Buffalo, the city court of Brooklyn, which were courts of record; also the marine court of the city of New York, the mayors’ courts of cities, the recorders’ courts of cities, the-district courts of the city of New York, the justices’ courts of cities, etc. The constitution evidently did not contemplate the establishment by the legislature of other superior city courts. By section 19 of article 6, the legislature was authorized to establish inferior local courts, but the superior courts established in cities were enumerated in the constitution, and their powers and jurisdiction made permanent, but no authority was given to establish additional superior courts in cities’; and in Landers v. Staten Island R. Co., 53 N. Y., 450, we held that, the legislature had no power to extend the jurisdiction of the city court of Brooklyn so as to deprive it of its local character.

Section 22 of article 6 was, in our judgment, intended to authorize appeals direct to the court of appeals from the courts of record in existence at the time of the adoption of the article, whose judgments were at that time reviewable, in the first instance, in the supreme court. ’ The marine court of the city of New York was a court of great importance, of ancient origin, and transacting a very large amount of business. Its jurisdiction had been from time to time increased: so lhat- although, except in special cases, it was originally limited to $50, it bad by degrees grown so as to embrace cases involving $500. Yet it was not a court of record, in the legal sense ' of the term, until 1872. The power to review its judgment in the first instance was vested by law in the court of common pleas, and, as was shown in the first opinion in this case, that power of review of the court of common pleas was, by the constitution, made permanent. By limiting the power of the legislature to authorize appeals directly to this court to appeals from judgments of courts of record, we think that it was the intention of section 22 of article 6 to exclude the marine court from its operation.

As there is some color for the claim that the marine court was a court of record before the passage of the act of 1872, it is necessary, for the purpose of determining that question, to advert briefly to its history. It is not necessary, for the purposes of this case, to go further back than the Revised Law of 1818. Chapter 86 of those laws, entitled “ An act to reduce several laws relating particularly to the city of New York into one act,” (section 105,) authorized the person administering the government of this State for the time being, by and with the advice and consent of the council of appointment, from time to time to appoint and commission three proper and discreet persons to be known by the name of justices of the justices’ court in and for the city and county of New York. Section 106 enacted that said three justices, or any two of them, should hold a court in the manner therein prescribed, to be known as the justices’ court of the city of New York. Jurisdiction was conferred upon such court to try and determine actions where the amount in controversy should exceed $25, and should not exceed $50. Also all actions for seamen’s wages, or by owners against seamen for breach of contracts for services, notwithstanding that the damages should exceed $50. Also actions for marine assaults, though the damages should exceed $50. And for the purpose of determining all such actions, the court was vested with all the power and authority of other courts of record in this State, and was declared to be a court of record. By section 107, such court was declared to be a court of record and authorized to have a seal, and a clerk to be appointed by the justices.

By section 110 the clerk was required to cause to be entered or registered in proper books a docket of all summons, warrants, precepts, executions and process issued, and of the returns thereto, and proper entries of all acts, orders dismissing decrees, judgments, adjournments and proceedings of said court, and also the substance of the plaintiff’s charge or demand, and of the defendant’s plea. The forms of proceeding were prescribed in subsequent sections, and were similar to those in justices’ courts". By chapter 71, of the Laws of 1819, the court was reorganized, and its name was changed to “ tbe marine court of the city of New York.”

By chapter 149 of the Laws of 1817 the jurisdiction of the court was increased to cases involving $100; by chapter 389 of the Laws of 1853 to $250; by chapter 617 of the Laws of 1853 to $500, and further enlargements of its jurisdiction were afterward made. By chapter 144 of the Laws of 1849 (section 7) section 107 of the act of 1813, which declared the court to be a court of record, and authorized it to have a seal, was totally repealed. But by chapter 389 of the Laws of 1852 (section 10) the common council was directed to provide the clerk of the' marine court with a seal, with the proviso that nothing in the act contained should authorize said court to issue certificates of naturalization. So much, however, of the repealed section 107 of the act of 1813 as declared the court to be a court of record was not at that time re-enacted, and at the time of the adoption of article 6 of the Constitution the court remained, so far as respects the question of being a court of record, as left by the act of 1852.

To constitute a court of record in a legal sense it is not sufficient that the court should have a clerk and a seal. - A court of record is defined by Blackstone to be one whose proceedings are enrolled for a perpetual memorial and testimony, which rolls are called the records of the court, and are of such high and super-eminent authority that their truth is not to be called in question. If the existence of a record be denied, it shall be tried by nothing but itself, that is, upon baire inspection, whether there be any such record or no. 3 Bl. Comm. 24; Co. Litt. 260a and 117b. An order entered in the minutes of such a court is not a record until it has been enrolled. Croswell v. Byrnes, 9 Johns. 287. These rolls or records contain a history of the proceedings to which they relate.

As has already been shown, the revised act organizing the court (2 Rev. Laws 1813, ch. 86, § 105 et seq.) did not provide for any rolls or records other than the registers directed to be kept by the clerk, containing dockets of the processes issued by the court, and minutes of its orders and judgments, and of the substance of the pleadings, which were oral. Written pleadings were not required until 1857, (Laws 1857, ch. 295,) and even these were not required in marine cases, and there was no provision for judgment rolls in any case. But after the adoption of article 6 of the constitution, by chapter 629 of the Laws of 1872, (section 1,) the marine court of the city of New York was declared to be a court of record to and for all intents and purposes. Its powers and jurisdiction were continued except as otherwise provided in the act. By subsequent sections the forms of proceedings and remedies prescribed by the Code of Procedure for actions in courts of records, including the forms of pleading, were applied to the marine court, and the rules of practice of the supreme court were made applicable to it; and in the Code of Civil Procedure of 1877 it was for the first time included in the enumeration of the courts of records of this state.

Before the passage of the act of 1872 the status of the marine court as a court of record was considered in several cases. In Wheaton v. Fellows, 23 Wend. 375 which related to the justices’ court of the city of Albany, the question arose whether that court was a court of record. Its organization was similar to that of the marine court. Laws 1821, p. 36. It was composed of three justices, and had a clerk and seal, and was, in the act organizing it, declared to be a court of record, but its proceedings were to be the same as those in a justices’ court. The provisions as to the entry of its proceedings in a register were the same as those in the marine court act of 1813. It was held, in the case cited, not to be a court of record in a strict legal sense, but only for some special purposes, and a plea nil debit was held good in an action upon the judgment rendered by it, though it would not have been a good plea to an action on a judgment of a court of record. In Lester v. Redmond, 6 Hill, 590, (decided in 1841,) a like decision was rendered with reference to the marine court of the city of New York, and it was held that that court, although a court of record for certain purposes, was not such in the exercise of its jurisdiction between party and party, and the six-years statute of limitations was held to bar an action on its judgments. In Ford v. Babcock, 1 Denio, 158, (decided in 1845,) it was held that whoever set up the authority of the marine court must show that the case was one of which it had jurisdiction; and in Huff v. Knapp, 5 N. Y. 65, (decided in 1851,) it was held by this court that the marine court did not possess the power incident to courts of record to appoint a crier, and had none of the incidental powers incident to courts of record, it not being a court of record in the strict legal sense of the term. We do not think, therefore, that section 22 of article 6 of the constitution, in speaking of courts of record established in cities, intended to include the marine court of the city of New York.

The act of 1886 does not, in terms, authorize appeals direct to this court from the marine (now the city) court of the city of New York. It is only by implication that the right is claimed. By the attempt to constitute it a superior city court it is supposed that the general provisions authorizing appeals from the superior city courts were made applicable to it. We do not discuss that question, nor do we concede that the legislature had power to establish superior city courts in addition to those enumerated in the Constitution, its authority in this respect being confined by se'ction 19 of article 6 to the establishment of inferior local courts. The case of Landers v. Staten Island R. R. Co., 53 N. Y. 450, is apparently adverse to the view that such a power is vested in the legislature.

The motion for a reargument should be denied, without, costs.

All concur.


author: Andrews, J.

text:
    Matter of Betsy B. Wilbur v. The Estate of Enos Warren, deceased.

      (Court of Appeals,

      Filed January 18, 1887.)
    1. EXECUTORY AGREEMENT — SUPPORTED BY A MERITORIOUS CONSIDERATION CAN NOT BE ENFORCED.
    An executory agreement supported only by a meritorious, as distinguished from a valuable or pecuniary consideration, can not be enforced, either at law or in equity, and an executory covenant falls within the operation of this rule.
    2. Mortgages — The band is the principal except as between mortgagor AND MORTGAGEE WHEN A BOND ACCOMPANIES THE MORTGAGE.
    As between mortgagor and mortgagee, when the bond of the mortgagor accompanies the mortgage the bond is the principal thing and the mortgage is collateral security for the personal obligation, but upon a conveyance by the mortgagor subject to the mortgage, in equity, the land is treated as the principal debtor, and the mortgage as surety for the mortgage debt.
    If the deed contains a covenant on the part of the grantee to pay the mortgage, the land still remains the primary fund for the payment of the mortgage.
    Appeal from, an order of the supreme court, general term, fifth department, affirming an order of the surrogates court of Chautauqua county allowing a claim of Betsy B. Wilbur against the estate of Enos Warren, deceased. The facts are sufficiently stated in the opinion,

      Frank W. Stevens for app’lt: A. Hazeltine for resp’t.

      Reversing 40 Hun. 203.

   Andrews, J.

The general term, sustained the decree of the surrogate allowing the claim of Betsy B. Wilbur against the estate of her father Enos Warren, for the amount of interest paid by her on the mortgage executed by her husband, Riley Wilbur, to Mary D. Miller, on the land subsequently conveyed by the mortgagor to Enos Warren, and by him to his daughter, on the ground that it was paid on his debt to protect 'her title to the land.

The facts may be briefly stated. In 1866 the land now owned by the claimants, being a farm of about ninety acres, was purchased by and conveyed to Riley Wilbur. On the 2d of May, 1876, Riley Wilbur and his wife executed to Mary D. Miller a mortgage thereon for $2,400, to secure the bond of Riley Wilbur, executed concurrently therewith. On the 5th of June, 1879, Wilbur and his .wife conveyed to Enos-Warren seventy acres of the land, subject to the mortgage, “ which mortgage, with the bond accompanying it,” the grantee, in and by the deed, agreed to pay as a part consideration for the conveyance. On the same day Warren acquired title to the other twenty acres from one Blauvelt, to whom Wilbur had previously conveyed it. On the 2d of December, 1880, Enos Warren, then of the age of seventy-nine years, conveyed the ninety acres to his daughter, Betsy B. Wilbur, by deed expressing the consideration of $500, with full covenants, and containing no reference to the mortgage. After Enos Warren acquired title, and before his conveyance to his daughter, he paid $1,400 on the mortgage, and at the time of his death, in October, 1881, there was $1,000 of principal unpaid. The interest paid by Mrs. Wilbur, for which she claims reimbursement, accrued after the death of the intestate. He left surviving him the claimant, a son, and the children of a deceased daughter, his only next of kin and heirs, at law. In fact there was no pecuniary consideration for the conveyance to Mrs. Wilbur, the only consideration being natural love and affection. Upon these facts the question arises whether there is any ground, legal or equitable, for charging the estate of Enos Warren on account of the interest paid by Mrs. Wilbur on the Miller mortgage.

It is conceded by the general term that the claimant has no-remedy upon the covenants in her deed. It seems to be the general doctrine that an executory agreement, supported only by a meritorious, as distinguished from a valuable or pecuniary consideration, cannot be enforced either at law or in equity, and an ex-ecutory covenant falls within the operation of the rule. The leading cases on this subject are cited in Whitaker v. Whitaker, 52 N. Y. 368. The claim of Mrs. Wilbur to be indemnified out of the estate of her father for payments made by her on the mortgage cannot, therefore, be supported upon the basis of any contract between herself and him by which he obligated himself to pay the mortgage. It is clear that, if she had brought an action upon the covenants in her deed against the personal representatives of her father to recover the money paid by her, she must have failed. It would have been a conclusive answer to the suit that the covenant was without adequate consideration, and imposed no legal obligation on the covenantor to discharge the mortgage. °

It remains, therefore, to consider whether, independently of any contract between the parties, the intestate nevertheless, by reason of the facts and circumstances disclosed, made the mortgage debt his own, so as to render his personal estate primarily chargeable with its payment in exoneration of the land. If this was the effect of the transactions, and the land in the hands of the claimant stood, as between ber and her father, as security merely for bis debt, then it may properly be conceded, that she would be entitled to be reimbursed out of the intestate’s estate for any payments on the mortgage made to protect her title. If, on the other hand, as between her and her father, the land was the primary fund for the payment of the mortgage, then it would seem to follow that no recourse could be had to his estate for payments made by the daughter thereon. The payments in that case woul&be payments made for her own benefit upon a debt against the land; the liability of the grantor on his covenants in his deed from the mortgagor being secondary only.

It is the settled doctrine in equity that one who purchases land subject to a mortgage makes the land thereby the primary fund for the payment of the mortgage debt. It is otherwise, as between mortgagor and mortgagee, when the bond of the mortgagor accompanies the mortgage, in the absence of any statute regulation. In that case the bond is the principal thing, and the mortgage is the incident. The debt is represented by the bond, and the mortgage is collateral'security for the personal obligation. ‘ But on a conveyance by the mortgagor, subject to the mortgage, the.plain meaning of the transaction between the parties is that the land shall pay the mortgage debt in exoneration of the personal liability of the mortgagor on his bond, and, in equity, in such a conveyance, the land is treated as the principal debtor, and the mortgagor as surety for the mortgage debt. ■ If the deed, in addition, contains a covenant on the part of the grantee to pay the mortgage, the land still remains the primary fund for the payment of the mortgage.

This question was very fully considered upon authority by the chancellor in the case of Cumberland v. Codrington, 3 Johns, ch. 229, and he declared the result of the authorities to be that “the mere covenantwith the vendor to pay the mortgage debt does not shift the charge from the fund primarily liable.” This is in accordance, also, with the real intent of the transaction. The essential purpose of such a covenant is to indemnify the mortgagor against the contingency that the land may not bring enough to pay the mortgage debt, and thereby leave him exposed to a claim for a deficiency. Halsey v. Reed, 9 Paige, 451.

Although the covenant may be in the form of a direct undertaking to pay the mortgage debt, and not a mere covenant of indemnity, yet tha£ is its essential character. The covenant is treated as an additional security for the mortgage debt, and inures as a promise to the mortgagee ,• yet it is settled that it will support an action by the mortgagee only when the immediate grantor of the covenantor is himself liable for the mortgage debt. King v. Whitely, 10 Paige, 465; Vrooman v. Turner, 69 N. Y. 280.

In Halsey v. Reed, the grantor of premises subject to a mortgage, which was assumed by the grantee, before making any payment thereon, brought an action against the covenantor on the covenant of assumption, and .recovered nominal damages only. He afterwards paid the mortgage, and claimed the amount of the payment from the estate of his grantee. It was insisted that the former judgment was a bar, as the claimant might have recovered the whole amount of the mortgage in that action. But the point was overruled, the chancellor holding that until actual payment only nominal damages could be recovered. It is unnecessary to inquire whether this would now be regarded as a controlling authority on the question. But even if the grantor could, on default of the grantee to perform his covenant to pay the mortgage, recover the whole amount thereof without having paid it himself, yet he would be bound to apply the sum recovered in satisfaction of the mortgage debt. Whichever view may be taken, the fact remains that indemnity is the primary purpose of such a covenant. Can it be doubted that where the grantor is not himself liable for the mortgage debt, and has no personal interest that the covenant shall be performed, he can recover nothing beyond nominal damages? The giving of a covenant by the grantee does not work a novation of the mortgage debt. It does not make the debt his own, except in respect to the estate, (Butler v. Butler, 5 Ves. 534,) and his liability is auxiliary, and not primary. We think, therefore, there can be no doubt, upon the authorities, that, when Enos Warren conveyed the mortgaged premises to his daughter, the land was the primary fund for the satisfaction of the mortgage.

The remaining question is whether the burden was shifted by the circumstances attending the conveyance to Mrs. Wilbur, rendering that which before was primarily a debt against the land, to which his covenant was collateral, his personal debt, to which the mortgage was incident. It was doubtless competent for the intestate, upon a consideration, to change his position, and, as between his daughter and himself, to make himself the principal debtor, and the land the secondary fund for the payment of the mortgage. This probably would have been the effect of the covenants in his deed, except for their Invalidity. n

It is said that the insertion of the covenants in the deed, although not enforceable as such, indicate an intention on the part of the father to himself pay the mortgage. This may be true. The circumstances do indicate an intention on the part of the grantor to give the land to his daughter free from incumbrance. But this intention was never effectuated. The father died leaving the mortgage unpaid. The question is whether the existence of this unexecuted intention is sufficient in law or equity to shift the primary burden of the mortgage debt from tbe land, and put it upon the father’s estate. To hold this, would, we think, be introducing a dangerous doctrine, which, •so far as we know, has no sanction in the law. The father incurred no legal or equitable obligation to pay the mortgage in exoneration of the land. The daughter took the land charged with the mortgage ; and, if she pays it out • of her own means, nothing is taken from her which her father has given her. If, on the other hand, the estate of the father is compelled to pay the mortgage, she, in effect, is enabled to perfect an unexecuted gift, to the prejudice of others interested in the estate. It may be admitted that, in a loose sense, there is -an equity that her father’s intention should be carried out; but an intention, not moved by any consideration recognized by the law as sufficient to create an enforceable obligation, is not, we think, sufficient to change the natural order of liability as between the real and personal estate, in respect to an obligation which, when created, was secondary, and not primary. The intention of the father rested in intention merely, because no effectual act was done in execution of it.

The case of Cole v. Malcolm, (66) N. Y. 363, is not in point. There lands conveyed by a husband to his wife without consideration were subsequently subjected to a charge in favor of creditors, which the heirs of the wife were compelled to pay, .and the court held they were entitled to be subrogated to the claim of the creditors against the husband. In that case there was a gift of land unincumbered, without actual fraud, perfected by a conveyance, and in effect a portion of it was subsequently taken away through a latent equity in the creditors of the husband. The cases are quite dissimilar and do not rest on the same principle.

These views lead to a reversal of the judgment of the general term, and of the decree of the surrogate, with costs to the •executors out of the estate.

All concur.


author: Danforth, J.

text:
    People of the State of New York, Resp’t, v. William B. Johnson, Appl’t.

      (Court of Appeals,

      Filed, January 18 1887.)
    .2. CRIMINAL LAW — SEDUCTION — INDICTMENT—VARIANCE—AMENDMENT— Code Crim. Pro., § 293-295.
    The defendant was by the indictment accused of having seduced under promise of marriage, and having sexual intercourse with one Mary Oliphant, she being an unmarried female of previous chaste character. It appearing on the trial that her real name was Olivert, the court directed the indictment and all the proceedings therein to be so amended as to conform in that respect to the proof. Held, no error under Code Crim. Pro., §§ 293-295.

      2. Same — What constitutes seduction within Penal Code § 284.
    Whether if the defendant had accomplished the seduction of this female under a promise to marry her on condition she became pregnant with child, that comes within the purview of Penal Code § 284, and establishes the crime. Qucere.
    Appeal from a judgment of the supreme court, general term, fourth department, affirming a judgment of the court of sessions of Jefferson county on conviction of defendant of the ■crime of seduction.

      Thomas F. Kearns, for appl’t; F. O. .Emerson, for resp’t.
   Danforth, J.

The defendant (appellant here) was by indictment accused of having seduced under promise of marriage, and having sexual intercourse with, one Mary Oliphant, at the town of Wilna, she being an unmarried female of previous chaste character. Upon a plea of not guilty, the issue was brought to trial at a court of sessions in the county of Jefferson, when the ■complainant, being called as the first witness, testified that her name was in fact Mary Olivert. The court thereupon, on the application of the district attorney, and against the objection and exception of the defendant, made an order which, after reciting that “ it appearing upon said trial that the name of the party so alleged to have been seduced is Mary Olivert, and not Mary Oliphant,” directed the indictment, and all the proceedings therein, to be so amended as to conform in that respect to the proof, by inserting the name of Mary Olivert in place of Mary Oliphant, and after evidence tending to support the charge had been given, the defendant’s counsel requested the court to advise the jury to discharge the defendant, upon the ground, among others, that there Avas a variance between the allegations of the indictment and the proofs “as to the name of the person alleged to have been seduced.” This was refused, and the court gave the case to the jury as one proper for their consideration; and, in view of the defendant’s claim that the evidence permitted an inference that if any promise of marriage was made it was not absolute, but conditional, — “ if the complainant would let him have sexual intercourse Avith her, that if there was any trouble with her he would marry her.

The judge charged “that even though the defendant may have accomplished the seduction of this female under promise to marry her on condition she became pregnant Avith child, that that comes within the purview of the statute and establishes the crime as well as if the promise and agreement to marry had been absolute and without condition.” To so much of the instructions as related to the force of a conditional promise, the defendant excepted. These two exceptions present the only questions upon which any doubt can be entertained upon this •appeal.

Mrst. The indictment alleges an offense against the statute— Penal Code, § 284 — with certainty and precision. No ingredient is omitted, and the only' objection is that the surname of the party injured is not stated with entire accuracy.

At common law the person charged could require that the name of his accuser, as well as the nature of Ms crime, should be set forth with certainty and a variance would have been fatal, unless overcome by the rule of idem sonans, as it is called, which in such cases was frequently resorted to in courts whose judges were astute to prevent the failure of justice, and whose jurors, on such occasions, had quick ears for harmony of sounds. In tMs instance it might be difficult to say that the sound of the woman’s name is not affected by the mis-spelling, but even in England the statute now governs and the court may cure the defect Mr directing an amendment. 14 and 15 Vict., chap. 100, § 1.

In this State the legislature has in like manner interposed and an indictment is sufficient if it contains the title of the action, specifying the name of the court to which it is presented, the names of the parties, and a plain and concise statement of the act constituting the crime. Code Crim. Proc., § 275. The parties are defined to be the people of the State as plaintiff, and the party prosecuted as defendant (Id., sections 6, 7) and the Code provides that when the offense involves the commission of a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured is not material (Id., section 281) and covering, as must be conceded, the case before us, declares that when, upon the trial of an indictment, a variance between its allegation and the proof in respect to the name of any person shall appear the court may in its judgment, if the defendant cannot be thereby prejudiced in his defense on the merits, direct the indictment to be amended according to the proof, and after such amendment the trial is to proceed in the same manner, and the verdict and judgment have the same effect as if the indictment had originally been framed in its amended form. Id., §§ 293, 294, 295.

It is contended, however by the appellant that this statute, so far as it allows such amendment, is in violation of the constitutional provision that “ no person shall be held to answer for a capital or otherwise infamous crime . ■ . . tinless upon presentment or indictment of a grand jury.” We do not perceive that any security thus afforded is taken away or impaired by the statute, or that it can have any other .effect than to promote the ends of justice by rendering of no avail a purely technical objection, without depriving a defendant • of any substantial right. The court not only declared the variance 'immaterial, but the amendment was allowed at the very outset of the trial, and under circumstances which insured to the accused party a full and fair bearing upon the only issue which his plea made material — seduction and sexual intercourse, under promise of marriage, with an unmarried female of previous chaste character. Penal Code, § 284.

The woman’s name was not essential in the description of the offense. It would have been enough, even under the former system of criminal procedure, to have described her as one whose name was to the jurors unknown, and the legislature did not exceed its power when it provided that if the proof showed the name to have been erroneously stated, the variance should not be to the advantage of the offender, unless he was in some way thereby “ prejudiced in his defense on the merits.” Such effect was not suggested to the trial judge, and the exception was argued upon the sole ground that the court had no legal power to permit the amendment.

Second. As to the other exception. There is no evidence in the case which justified the claim of the defendant that the promise was conditional. That referred to by the appellant consists of an affidavit made by the complainant on the eleventh of August, 1884, before a magistrate, and was introduced by the defendant. It could only bear upon the credibility of the witness, as showing conflicting statements, and was no doubt used for that purpose. It was admissible for no other. The complainant’s evidence proved an express and unconditional promise. The defendant denied that a promise of any kind was made. No other issue was presented, and that was in the fairest manner submitted to the jury. The charge of the judge, therefore, to which exception was taken, was a mere “ impertinence, or an abstract opinion out of the case,” induced by the defendant’s assertion, but founded on no evidence which could iu any reasonable view work prejudice to the prisoner. It is therefore, even if technically erroneous, no ground for a new trial. Gardner v. Picket, 19 Wend. 186; Code Crim. Proc. § 542. But, as the question is not properly in the case, we express no opinion in regard to its merits. The evidence as to every element of the crime charged was abundant both in chief and in corroboration; and, while many exceptions were noted during the trial, we find none which affects any substantial right of the defendant.

The judgment should be affirmed.

All concur.


text:
    Lula V. Jones, Resp’t, v. Lewis Jones, et al, Appl’t.

      (Court of Appeals,

      Filed January 18, 1887.)
    Appeal fbom coubt of Common Pleas of New Yobk. — Obdeb hecessaby Code Civ. Pbo., § 190.
    An appeal to the court of appeals from a judgment of the general term of the court of common pleas of New York county cannot be taken, where the case originated in the city court of New York, without first obtaining leave from the court of common pleas to appeal as required by Code Civ. Pro. § 190.
    Constitutionality of Laws, 1886, Chap. 418.
    All the provisions of chapter 418, Laws 1886, are connected as parts of a single scheme and the main purpose of the act, being unconstitutional the incidental provisions must fall.
    Motion to dismiss an appeal from a judgment of the general term court of common pleas of New York county, affirming a judgment of the general term of the city court, in favor of plaintiff.

      N. W. Lazetr, for motion. E. P. Wilder, opposed.
   Rapallo, J.

In this case the defendant took an appeal from the judgment of the general term of the city court to the court of common pleas, where the judgment was affirmed after the passage of chapter 418 of Laws of 1886. From the judgment of affirmance the defendant appealed to this court without first obtaining leave from the court of common pleas to appeal, as required by section 190 of the Code, and the respondent now

moves on that ground to dismiss the appeal. The appellant contends that although the act of 1886 is held to be unconstitutional in so far as it dispenses with an appeal to the court of common pleas, it should still be held valid and effectual in so far as it has the effect of dispensing with the necessity of an order of the court of common pleas allowing an appeal from its judgment.

After giving the point due consideration we have concluded that the main object of the act of 1886 having failed, we should not divide it into parts and sustain the portion which is claimed to obviate the necessity of an order allowing the’ appeal, but that all the provisions are connected as parts of a single scheme, and that the incidental provisions must fall with the failure of the main purpose of the act.

An order allowing the appeal was consequently necessary, and for want of such an order the appeal should be dismissed, without costs.

All concur.


author: Finch, J.

text:
    Susan Armstrong, et al, Executors of Francis Armstrong, deceased, Resp’t, v. Esther McKelvey, et al, Appl’ts.

      (Court of Appeals,

      Filed January 18, 1887.)
    1. Will — Election by Legatees to take land.
    The testator by his will directed his executor to sell all his property and divide the proceeds among certain specified legatees. The sale of the real property by the executor was set aside in an action brought by the legatees. The judgment in that suit, deciding that the legatees were entitled to the possession of the premises as the rightful owners thereof, discharged and released from the said trust. Held, that it must be assumed that the provisions referred to were inserted in the judgment at the request of the legatees, and, established their choice and election to avoid a sale and take their legacies in the land itself, when they took possession of the property as their own and in accordance with the terms of the judgment. That the effect of the legatees’ election, (this not being identical with the heirs at law) was to vest in them the equitable ownership of and the entire beneficial interest in the land, and enable them at any moment to require and compel from the holders of the formal title its complete transfer.
    Same — Liability eob testatob’s debts — Code Civ. Pbo., § 1843.

      Held, there was such an effectual devise to the legatees of the entire beneficial interest in the land, if they chose to accept it as to render them liable for the debts of their testator under Code Civ. Pro., § 1843. That the provision of said section does not require as a condition that the legal title shall have passed.
    3. Same — Appobtionment op liabilities — Equities.
    In the apportionment of the debt among the devisees there was added to two of them the proportionate part of legacies given to them in excess of their co-tenants. Held, that having chosen to take their entire legacies in land, they became liable, under the statute to the extent awarded so far as creditors were concerned, whatever may be their equities as against their co-tenants upon a partition.
    4. Equitable set opp — When allowed.
    It was claimed that certain items which could not be allowed as a legal offset or counter-claim should be used by the court in reduction of the plaintiff’s demand. Held, that that power should be very cautiously exerted and only in a case where the equity involved is entirely clear and certain.
    Appeal from a judgment of the supreme court, general term, fifth department, affirming a judgment of the Livingston county special term, in favor of the plaintiff entered on the report of a referee.
    The action was brought by the plaintiffs’ testator to charge the defendants with the payment of a debt due from Robert Smith, who died leaving a will by which the defendants took an interest in his estate.
    By his will, which was admitted to probate and recorded, Smith bequeathed to the defendant, Jenny MeKelvey, $200, and to the defendant Esther MeKelvey $200 and his bureau. He directed the executor to provide a headstone for his grave at a cost not exceeding $100. Then comes the third clause as follows :
    “ I hereby order my executor to sell all my real and personal property at public or private sale, as be may think best to do, within eighteen months after my death; and the proceeds and avails arising from the sale of my real and personal property,, after the legacies above mentioned are paid and my just debts, funeral expenses and gravestone are paid, to divide the balance equally between the following persons, namely: Jennie McKelvey, Nancy McKelvey, Esther McKelvey, Elizabeth Olp, James G. Smith, of Tennessee, Alexander Smith and Jennie Wallace Smith.”
    He named Isaac Barber as executor, to whom letters testamentary were issued. The testator, Smith, died seized of real, estate of the value of upwards of $9,000, which the executor within the eighteen months sold and conveyed to one Hartman.. In an action, brought by the defendants in this action, against, the executor and Hartman for that purpose, the sale and conveyance to Hartman were set aside ; and the referee before-whom that action was tried, among other things found and determined, and it was by the judgment therein declared, that the-attempted sale was illegal; that the land descended to the devisees, the defendants in this action, subject to the execution of the power; that the period in which the executor was empowered to sell having since expired, he, as such or as trustee, could not execute the power so as to give title to a purchaser, and that the plaintiffs in that action were entitled to the possession of the premises as the rightful owners thereof, discharged and released from the said trust.
    The testator, Smith, having become indebted to one Pridmore, the latter, in an action against the executor, recovered a judgment thereon. In proceedings had before the surrogate, to obtain settlement and application of the personal property of the estate, it appeared that there was none to apply upon his claim. Pie afterwards assigned the judgment and the debt for which it was recovered to the plaintiffs’ testator, who brought this action to recover of the defendants, on the assumption that this land had come to them by the force of the will before mentioned. He died and the plaintiffs were substituted during thependency of the action.
    The referee found that they were liable and directed judgment distributing the liability between them and specifying the-amount with which each was charged.

      James Hood, for appl’t; J. B. Adams, for resp’t.

       Affirming 39, Hun, 213.

   Finch, J.

The opinion of the general term upon an appeal to that tribunal is an adequate and accurate solution of the questions involved, and leaves for us only the duty of testing the criticism with which it is assailed. The argument against it in the end comes down to a single point which challenges the proof relied upon to establish a reconversion of the personal estate into land. It begins with the proposition that the will of -the testator gave to the defendants the price or proceeds of the real estate, effecting an equitable conversion, and the legal title to the land descended meanwhile to the heirs at law who are not identical with the legatees ; and that the sale by the executor when set aside by the court simply restored the statu quo, and the judgment rendered, so far as it went beyond that relief, was outside of the issue and bound nobody as a record, or by way of estoppel.

The argument then, assuming that the legal title remains yet in the heirs at law, .denies that the legatees have received either the price of the land or the land itself, and so insists that the necessary facts were not proven to establish a liability to the creditor. It is at this point that collision with the opinion of the general term for the first time begins, since that opinion distinctly concedes the descent of the legal title to the heirs at law, and does not hold that the judgment, in so far as it decrees a reconversion into land and a title to that land in the defendants, is binding upon them to its full extent, either by its direct force, or by way of estoppel. It uses it in another manner and for a different purpose. It assumes, with entire accuracy, that the provisions referred to were inserted in the judgment at the request and by the procurement and with the full assent of the defendants, and established their choice and election to avoid a sale and take their legacies in the land itself instead of the proceeds when they took possession of the property as their own .and in accordance with the terms of the judgment. This they were at liberty to do, no other rights intervening or being prejudiced by the act. Hetzel v. Barber, 69 N. Y., 11; Prentice v. Jansen, 79 id. 480. It may very well be that while this reconversion changed the defendants from legatees of money to devisees of land, the change did not divest the heirs at law of their legal title, and ipso facto transfer that title to the defendants, as might easily be held where the devisees and heirs at law were absolutely identical. But that inquiry need not be pursued. The legal title which descended was purely formal, utterly barren and naked, and the effect of defendants’ election was, at least, to vest in them the equitable ownership of and the entire beneficial interest in the land, and enable them at any moment to require and compel from the holders of the formal title its complete transfer. The provisions of the Code under which the liability of devisees arises (section 1843) do not require as a condition that the legal title shall have passed. Such devisees are made liable “ to the extent of the estate, interest and right in the real property which descended to them from, or was effectually devised to them by, the decedent.” There was such effectual devise to them of the entire beneficial interest in the land if they chose so to accept it. The donor must be understood to have given them that option (Hetzel v. Barber, supra) and they were at liberty to take and conld do so effectually in the character of devisees.

The real assault, therefore, -upon the general term opinion, respects the proof of that election, and is in the main concentrated upon the assertion that the defendants had not taken possession of the land after the judgment, and as the owners, which that judgment declared them to be, and that the finding of the referee to that effect was entirely without evidence to support it. But the fact was admitted by the pleadings, and was not a controverted issue. The complaint alleged “ that, after the entry of said judgment as aforesaid, the defendants in this action entered into possession of the aforesaid real estate, by themselves, their agents or lessees,' and have ever since continued in such possession, and that they are still the owners of such real estate, as such devisees thereof, as aforesaid.” The answer discloses no denial of the allegation. It asserts only that, when the action was commenced, “ one Andrew McKelvey was in the possession and occupancy of the said real estate •* * * under and by virtue of alease made and executed to him by the said Robert Smith in his life-time; that the term created by said lease expired on the first day of April, 1875; that, since the expiration of said lease, the defendants Jennie McKelvey and Esther McKelvey have lived on the said premises.” The answer further “ admits the allegations in said complaint contained which are consistent with the allegations herein contained in the first and second subdivisions of this, answer.” And so the averment of the complaint stands, not only without denial, but affirmatively admitted: for the alleged lease of McKelvey is said to have ended in April, 1875, and the judgment and entry of defendants did not occur until the next year. On the main question in the case, therefore, we are unable to see that the general term opinion has been in any respect justly criticised.

Objection is made to the apportionment among the devisees, which added to the share of two of them the proportionate-part of legacies given to them in excess of their co-tenants. The-consequent difference, is so small as to be almost trifling; but it seems to us a sufficient answer that, having chosen to take-their entire legacies in land, they became liable, under the statute, to the extent awarded, so far as creditors were concerned, whatever may be their equities as against their co-tenants upon a partition.

A final claim is made that the courts below erred in not allowing an equitable offset, founded upon the proof as to the delivery to Pridmore for safe-keeping of his own notes payable to the testator, and of certain amounts of money belonging to. him. It is not claimed that these items could be allowed as a legal offset or counter-claim, but that the court, upon principles of natural equity, may use them in reduction of plaintiff’s demand. That power should be very cautiously exerted, and only in a case where the equity invoked is entirely clear and certain. It is never justified save where other remedies are impossible, and where the demand allowed is put beyond reasonable doubt. In the present case we do not even know that the plaintiff’s notes were due and payable, or drew interest. If not, there is no equity in lessening his term of credit, and compelling him to pay in advance of his contract. Lindsay v. Jackson, 2 Paige, 585. It does not appear that the money deposited has ever been demanded, or that Pridmore is insolvent, or that his debt, if it be one, may not be recovered. The facts shown raise rather a reasonable suspicion of a right than clear and controlling proof of its existence. Itis not to such a case that the doctrine of natural equity should be applied.

The judgment should be affirmed, with costs.

All concur.


author: Per Curiam.

text:
    States v. Cromwell.

      (Court of Appeals,

      Filed January 25th, 1887.)
    PRACTICE — APPEAL — CORRECTING RETURN.
    A motion to compel the appellant to correct the return to the court of appeals by adding thereto copies of certain documents should be made in the court below. The court of appeals has no jurisdiction.

      George Zabriskie, for the motion; Samuel L. Gross, opposed.
   Per Curiam.

This is a motion to compel the appellant to correct the return to this court by adding thereto copies of certain documents, and to serve copies of the return as so amended upon the respondent. A complete answer to the motion is that the documents are no part of the record in the court below, and that the record certified to this court is a correct copy of that record. If the documents should be a part of that record for any reason, we have no jurisdiction to make them a part thereof; but a motion for that purpose should be made to the court below.

Motion denied, with $10 costs.

All concur.


text:
    Edward J. Kelsey, v. James Sargent.

      (Court of Appeals,

      Filed January 25, 1887.)
    1. Judgment — Rendering a ¡reference necessary is interlocutory. A judgment rendering a reference necessary is interlocutory, not final.
    2. Appeal — Order denying new trial appeal arle — Code Civ. Pro., § 190, subd. 2.
    Prom such a judgment rendered hy a special term an appeal was taken to the general term and the defendant also moved for a new trial upon exceptions under Code Civ. Pro., § 1001. Held, that under Code Civ. Pro., § 190, suhd. 2, the appeal was well taken so far as it affected an order denying the motion for a new trial.
    3. Same — When in part well taken, motion to dismiss as a whole will BE DENIED.

      Held, that the appeal being in part well taken, a motion to dismiss it as % whole should be denied.
    Motion to dismiss an appeal from a judgment of tbe supreme court, general term, fifth department.

      Theodore Bacon, for the motion; J. & Q. Van Voorhis, opposed.

       Affirming 3 N. Y. State Reporter, 477; 41 Hun, 637 mem.

   Per Curiam.

Tbe judgment rendered at special term made a reference necessary, therefore it was not final, but interlocutory. Barker v. White, 58 N. Y., 204.

An appeal, however, was taken to tbe general term, and upon exceptions the defendant also moved that court for a new trial under section 1001 of tbe Code. Tbe judgment was affirmed and tbe motion for a new trial denied. One order embraced both decisions, and from the whole of that order tbe defendant appealed.

So far as tbe appeal affects tbe order denying a new trial, it was well taken (§ 190, subd. 2; Raynor v. Raynor, 94 N. Y., 248, 251,) and as tbe motion to dismiss relates to tbe whole appeal, and not a part only, it should be denied, and as tbe plaintiff asks for too much, be should pay costs.

Motion denied, with $10 costs.

All concur.


author: Earl,J.

text:
    George C. Carter, Resp’t, v. Emily P. Beckwith et al., Admrs, Applts.

      (Court of Appeals,

      Filed January 25, 1887.)
    Executor and administrator — Presentation or claims — Costs, refusal of reference — Code Civ. Pro., § 1836.
    The plaintiff presented a claim to the defendants who declined to pay the same or any part of it and at the same time positively refused to consent to a reference. Held, that plaintiff was entitled to costs under Code Civ. Pro., § 1836, although the amount claimed in the account as presented was larger than the amount claimed in the complaint and much larger than that recovered. That after such an unqualified refusal, the plaintiff was not bound to go further and make another distinct offer of reference before commencing his action in order to entitle him to costs.
    Appeal from an order of the supreme court, general term, fourth department, affirming an order of the Onondaga county-special term awarding the plaintiff costs against the administrators.

      John Lansing, for appl’t; P. O. J. L>e Angelis, for respt’s.

       Affirming 40 Hun, 635 mem.

   Earl,J.

In 1876 the defendants were appointed administrators of Richard Beckwith, deceased. Under an order of the surrogate, they published a notice to creditors to present their claims on or before July 25, 1877. The plaintiff, having a demand against the intestate for services rendered to him, and disbursements made for him, as an attorney, on the twenty-first of July, 1877, personally presented a claim for such services and disbursements to the administrators, amounting in the aggregate to §2,554.25, in the form of a bill of particulars. On the thirty-first of July, 1877, the attorney for the defendants wrote a letter, to the plaintiff, which was received by him, of which the following is a copy : “ Dear Sir : Your account again.st the estate of the late Mr. Beckwith has been shown to me by the administrators of Mr. Beckwith’s estate, and they direct me to inform you that they decline to pay the same, or any part of it. They also direct me to inform you that they will not consent to a reference, and, if you insist upon its payment, you must proceed immediately.” Subsequently the defendants offered to pay the plaintiff §110 upon his claim, and thereafter, on the tenth day of July, 1878, the plaintiff commenced an action to recover the sum of §1,412.63, for services rendered and money disbursed for the intestate. The action was put at issue, and subsequently referred by order of the court, and tried before a referee, who made his report, awarding the plaintiff §573.63, besides costs. Upon the reference evidence was given of the presentation of the account to the administrators as above mentioned, and that the plaintiff received the letter rejecting the claim. The referee made his certificate as follows: “ That said action was brought against Emily P. Beckwith, as administratrix, and Alexander Kanady and Samuel C. Kanady, as administrators, of the estate of Richard Beck-with, deceased, to recover a sum of money only, and that it appeared upon such trial that the plaintiff’s demand in said action was presented to said defendants before the expiration of the time limited by the notice published as prescribed by law, requiring creditors to present their claims, and that said defendants refused to ■ refer said claims, as prescribed by law.” Upon the affidavit of the plaintiff, and the referee’s certificate, the plaintiff made a motion for an order allowing him costs against the defendants. That motion was opposed upon the affidavit of defendants’ attorney, but was granted, and this appeal is from an order of the general term affirming that order.

We think the order is right. Section 1836 of the Code provides as follows ; “ When it appears, in a case specified in the last section, that the plaintiff’s demand was presented within the time limited by a notice published, as prescribed by law, requiring creditors to present their claims, and that the payment thereof was unreasonably resisted or neglected, or that the defendant refused to refer the claim, as prescribed by law, the court may award costs against"the executor or administrator, to be collected either out of his individual property, or out of the property of the decedent, as the court directs, having" reference to the facts which appeared upon the trial. Where the action is brought in the supreme court, or in a superior city court, the facts must be certified by the judge or referee before whom the trial took place.” We think,' within the meaning of that section, that the claim upon which the plaintiff recovered was presented to the administrators. It matters not that the amount claimed in the account as presented was larger than the amount claimed in the complaint, and much larger than that recovered. It was the same claim, for the same services and disbursements, and the administrators were in no way misled or prejudiced by the amount. Field v. Field, 77 N. Y. 294. The letter of the defendant’s attorney was a positive refusal to refer the claim, or to pay it, or any part of it. After such an unqualified refusal, the plaintiff was not bound, to go further, and make another distinct offer of reference before commencing his action, in order to entitle him to costs.

The order should be affirmed.

All concur.


author: Per Curiam :

text:
    Michael J. Derleth v. Harry P. DeGraff et al.

      (Court of Appeals,

      Filed January 25, 1887.)
    Appeal — To court of appeals — Order of affirmance by general TERM IS MERELY AUTHORITY FOB ENTRY OF JUDGMENT OF AFFIRMANCE.
    Before the entry of any judgment of affirmance, the defendant’s attorney served a notice of appeal to the court of appeals from the judgment entered at the trial term and from an order of the general term affirming that judgment and an order made by the trial judge denying a motion for a new trial.

      Held, that the appeal was unauthorized, that the order of the general term was simply an authority for the entry of the judgment of affirmance, that the judgment should first he entered and an appeal brought from that.
    MOTION for reargument.

      James R. Marvin, for appl’t; Nelson Smith, for resp’t.
   Per Curiam :

-At a prior term of this court a motion was. made to dismiss tlie appeal in this case, upon the ground that it was unauthorized; and that motion was granted. This is a motion for a reargument of the prior motion. We have carefully reconsidered the matter, and are of opinion that no error was committed.

The action was tried before a jury and a verdict rendered in favor of the plaintiff. After the verdict the defendants made a. motion before the trial judge, upon his minutes, for a new trial;, and an order was entered denying that motion. Judgment was then entered in favor of the plaintiff.

Thereafter a case containing exceptions was settled and the defendants appealed to the general term from the judgment and also from the order denying a new trial: and the general term affirmed both the judgment and the order. Then, before the. entry of any judgment of affirmance, the defendants’ attorney served a notice of appeal to this court from the judgment entered at the trial term, and also from the order of the general term affirming the judgment and the order denying the defendants’ motion for a new trial.

The case of Kilmer v. Bradley, 80 N. Y., 630, is a precise authority for holding that the appeal to this court from the order-affirming the judgment was unauthorized. Such an order is simply an authority for the entry of the judgment of affirmance. That judgment should first be entered, and an appeal brought from that.

But it is claimed that the defendants had a right to appeal to the court from the order of the general term, so far as it affirmed the order of the trial judge denying the motion for a new trial.

We think otherwise. The appeal from that portion of the order could bring no question to this court which was not involved in the affirmance of the judgment. Upon such an appeal, we could entertaiu it, we could review only questions of law raised upon tbe trial, and those questions would be involved upon an appeal from the judgment to be entered upon the order of affirmance. Under such circumstances an appeal from the order affirming the order which denied a new trial would be entirely nugatory. If that order should be affirmed, the defendants would still have the right, after entry of judgment of affirmance, to appeal from that and try the experiment upon that appeal of procuring a new trial by reversal of the judgment. If the appeal from the order affirming the order which denied the motion for a new trial should be successful the judgment would still stand, affirmed, unappealed from, and thus nothing would be gained by the defendants if successful upon the appeal which they claim the right to make without the further interference of the court.

To uphold such au appeal is trifling with the forms of law. Orderly practice requires that a judgment of affirmance should be entered and that the appeal should be takeu from that; hence, this is not such an appeal from an order which grants or refuses a new trial as is contemplated by section 190 of the Code; and,

The motion should be denied, with $10 costs.

All concur.