text:
    In the Matter of the Probate of the last Will and Testament of Asher W. Miner, Deceased.

      (Supreme Court, General Term, Fifth, Department,

      Filed October 20, 1893.)

    1. Will—Construction.
    In a will drawn by testator personally the residuary clause read; “All the rest and residue of my estate, both real and personal, not heretofore disposed of, I bequeath and devise as follows: all of my household goods, furniture and effects, after the "decease of myself and wife, ’ to his three foster children, who had lived in his family since early childhood and for whom he had always entertained the greatest affection. By a former will he had given to such children the use of his entire residuary estate for life, and provided that at their death it should go to their children. Meld, that the residuary clause should be construed as passing all his property not previously disposed of, aud that for all the purposes of giving construction to the will such children were natural children, of testator.
    2. Same—Evidence.
    The residuary clause was so ambiguously phrased as to justify the admission of extrinsic evidence to aid the court in its interpretation.
    Appeal from a decree of the surrogate of Allegany county admitting the will of Asher W. Miner to probate, and construing that part of the will which relates to the disposition of his residuary estate.

      James C. Smith, for app’lts, Maria L. Mills and others; George Barker and A. W. Hickman, for app’lts, Simon G. Miner et al.; Charles B. Wheeler, for app’lt, Amelia R. Heath; Charles Daniels and A. S. Elliott, for proponents and resp’ts.
   Lewis, J.

This is an appeal from a decree of the surrogate of Allegany county, the controversy being over the construction given to the fourteenth clause of the will of Asher W. Miner, deceased.

The testator died in the village of Friendship, Allegany county, on the 13th day of May, 1892, aged seventy-eight years. He left him surviving his widow, Electa R. Miner, two brothers and a large number of nephews and neices. Mrs. Miner survived her husband but a few mouths. The testator drew his own will, and executed it on the 10th clay of August, 1891. By the first clause of his will he bequeathes to his wife $20,000, and the use and income of the further sum of $20,000 during her life; also all hie household goods, furniture, fixtures and effects, and all his homes, harnesses, carriages, robes and cutters, and the use during her lifetime of all the lands owned by him in the town of Friendship; he directed that the $20,000 devised to her should be paid one-half in one year and one-half in two years from his decease, with interest from the time of his decease to be paid quarterly. The provisions for his wife were to be in lieu of her dower. By the second clause of his will he bequeathed to each of the proponents the sum of $10,000; and provided that any notes or indebtedness he might have against the proponents or their husbands at the time of his decease should be deducted from the sum devised respectively. By the third clause he bequeathed to his niece, Harriet Hoxie, the interest on $4,000 during her natural life, and then follow various bequests to Baptist churches and societies, and to a cemetery, amounting in all to some $27,000.

The fourteenth clause, being the one in controversy, is as follows:

“All the rest and residue of my estate, both real and personal, not heretofore disposed of, I bequeath and devise as follows: All of my household goods, furniture and effects after the decease of myself and wife to Kate M. Wellman, Myra E. Corbin and Ella Lockwood, to be equally divided between them share and share alike.”

The contestants claim that the testator, by this clause of his will, disposed of no more of his property than his household goods, furniture and effects. The proponents contend that the testator intended to bequeath to them the entire residue of his property.

Mr. Miner resided all his business life in the village of Friendship, Allegany county. He was an intelligent, enterprising, successful business man. He operated to some extent in oil lands, oil and lumber, but his principal business was banking, which he had carried on for many years successfully. He left an estate of the value of from five to six hundred thousand dollars. Mr. and Mrs. Miner married early in life, but, not having any children of their own,, they adopted the very commendable plan of taking the children of others and making them members of their household. The proponent Kate M. Wellman became a member of their family in the year 1846 or 1847, when she was three years of age. The proponent Myra E. Corbin was taken into the family when she was sixteen months old, and the proponent Ella Lockwood when she was eleven years old. They were not legally adopted, but remained members of the family until they were respectively married, and were in all respects treated by the testator and his wife as if they were their natural children. They were liberally educated, and enjoyed all the advantages and privileges of children of wealthy parents. The relations between the foster parents and these children from the time they became members of the family until the death of Mr. Miner were as tender and affectionate, apparently, as if they had been their natural children. They were habitually addressed by Mr. and Mrs. Miner as natural children would have been, and Mr. and Mrs. Miner were called and addressed by them as father and mother. They took the family name of Miner; they became members of the Baptist church, to which Mr. and Mrs. Miner belonged; were married at the home of the testator, one of them to the business partner and confidential friend of Mr. Miner. One married a Doctor Lockwood, who was at the time a physician residing in the state of Illinois, and she went there to reside with her husband. Mrs. Wellman and Corbin continued to reside after their marriage near the residence of the testator. Mrs. Wellman’s husband died prior to the making of the will, leaving a family of children.

The relations of affection and love between the testator and proponents continued lifter their marriage. Mrs. Wellman and Corbin had children, and the relations between Mr. and Mrs, Miner and these children were suchas would be expected between grandparents and grandchildren. The record shows that the love which Mr. Miner had for the proponents was fully reciprocated by them and their children; they were, for all the purposes of giving construction to the will, his natural children. The' testator left him surviving two brothers who were his seniors in age. One of them was á farmer residing near the testator; the' other was a minister and resided in another state. They were in moderate financial circumstances. His nephews and nieces-resided in different parts of the United States. He had given financial aid to the brother who was a minister, and to his sisters. His relations with his brothers and sisters and their descendants appear to have been cordial and affectionate. The testator’s letters, which were introduced in evidence, tended to show that he was exceedingly considerate of the feelings and comfort of his brother and sisters and frequently suggested that they, should not in any respect embarrass or harass themselves by making payments to him upon- their indebtedness.

The testator executed a former will in the year 1885, which was found among his papers after his decease, cancelled. He unquestionably had that will before him when he drew the will in question, for several of its clauses were copied verbatim into the last will. The provisions for his wife were the same in both wills. By the will of 1885, he gave to each of the proponents the use during their life of eight thousand dollars, which was to go to their children after their decease, and in case of the'death of either of them without issue the same was to be a part of the residuary estate. The same provision was made in both wills for Mrs. Hoxie; substantially the same provision in both wills for .the churches and societies. By the thirteenth clause of his first will he gave to the three proponents the use during life of his •entire residuary estate and provided on their death it should go .share and share alike to their children, and that in case either of said devisees should die leaving no children, then the share of said persons dying childless should go to the survivor or survivors of the residuary devisees in equal proportions, thus showing that the testator had in mind at the date of his first will to make the proponents and their children the principal beneficiaries of his large estate, and did not intend that his brothers and sisters or their descendants, with the exception of Mrs. Hoxie, should share in the estate.

By stipulation of the parties, photographic copies of both wills were produced upon the argument. They were both in the handwriting of the testator with the exception of the names and residences of the witnesses. The arrangement of the various clauses of the will, the penmanship and phraseology, show that the testator was a man of intelligence and to a considerable extent familiar with the use of legal language and legal principles; in drafting the clause in controversy he obviously failed to express his thoughts with that clearness that appears, in the balance of the will. In writing the wills he entirely ignored the rules of punctuation, for there is not in either of the wills a punctuation point of any kind. In giving construction to this clause of the will we start with the legal presumption against partial intestacy, and in this case that presumption is strengthened by the provisions of his first will, which, as we have seen, was prepared by his own hand and intelligently disposed of his entire estate upon the same general plan as the last will. He contemplated, when preparing the last will, that there would be a residuary estate to be disposed of, for he refers to it three several times in the will. It is quite improbable that he used the following important and significant words in the fourteenth clause : “All the rest and residue of my estate both real and personal not heretofore disposed of I give, bequeath and devise,” and intended that they would carry only the household goods and effects after the death of his wife. Such a conclusion would impute to him ignorance of the meaning of words not justified by the evidence. He had in his former will given to the proponents only the use of the bequests for life, but it was of the bulk of the estate amounting to several hundred thousand dollars. By the last will his bequests to them, with the exception mentioned as to deduction on account of indebtedness to him at the time of his death by the devisees of their husbands, were without conditions. To hold that the proponents only take the household goods by the residuary clause involves a very remarkable and unexplained change in the feelings of the testator toward them between the dates of the two wills.

Having by the will of 1885 given to them and their children, the great bulk of his estate, if the appellants’ contention be correct, by his last will he gave them, in addition to the ten thousand dollars each, only the use of the household furniture after the death of the widow. If such a radical change was intended by the testator we should expect that some cause for it would appear in the record, and there is an absence of any suggestion of the kind. On the contrary, the proof shows that the kindly and affectionate feelings he entertained for them in 1885 apparently continued down to the time of his death. Having provided in the first clause of his will that his widow should have the use of the household goods, etc., during her life, the insertion of this provision regarding the household goods in the residuary clause was not necessarily inconsistent with an intention on his part to give the proponents the residue of this estate. He might well have thought her right to it might be endangered if that property was not excepted from the general language of the residuary clause. Had the words “All of my household goods, furniture and effects after the death of myself and wife ” been enclosed by the testator within dashes or curved lines, there would be left no room for doubt that the clause in controversy carried the residuum of the-estate. It is our duty to give this construction to the clause in question if it can be fairly and consistently done, in order to prevent partial intestacy and carry out the intention of the testator.

“ When a plain and definite purpose is endangered by inapt or inaccurate modes of expression and we are sure we know what the testator meant, we have the right and it is our duty to subordinate the language to the intention. In such a case the court, may reject words and limitations, supply them or transpose them, to get at the correct meaning.” Phillips v. Davies, 92 N. Y., 199— 204.

It was held in Lamb v. Lamb, 131 N. Y., 227; 43 St. Rep., 112, that “Where the language of a residuary clause is ambiguous, the leaning of the courts is in favor of a broad rather than a restricted construction. It prevents intestacy, which it is reasonable to suppose testators do not contemplate, and if the mind is left in doubt upon the whole will as to the actual testamentary intention, a broad rather than a strict construction seems more likely to meet the testamentary purpose, because such a clause is usually inserted to provide for contingencies or lapses and to cover whatever is left after satisfying specific and special purposes of the testator, manifested in the other clauses of his will. * * * The intention to include is presumed, and an intention to exclude must appear from .other parts of the will or the residuary devisee will take.”

It is not necessary to take as great liberties with the phraseology of the clause in question in order to put it beyond doubt that it was intended to devise the residue of the estate as would seem to be warranted by many authorities. It is contended by the counsel for the respondents that the word “ effects ” in the residuary clause should be held to include and carry the balance of the estate not specifically devised, and many authorities are cited where that word was held to have that effect. We incline to the opinion that the testator did not use the word in so broad a sense, but intended that it should apply to and cover articles belonging to the household furnishings, using it in the same sense as in the first clause of the will. If he used it in the broad sense claimed by the respondents, he failed to make any provision for the disposal of the income of the residue of the estate during the life of his widow. We are of the opinion that the testator intended by the fourteenth clause of 1ns will to dispose of the entire residue of his estate to the proponents, but failed to express his intention with that clearness, perhaps, that he would if he had not had the former will before him when preparing the clause in question. He copied the first part of the residuary clause from the first will and left out of the last will its provisions as to a life interest in the proponents, which accounts probably for the clause failing to express his intention with that clearness that it otherwise would. The residuary clause was so ambiguously phrased as to justify the admission of extrinsic evidence to aid the court in its interpretation.

The order and decree of the surrogate appealed from should be affirmed, without costs of this appeal.

Dwight, P. J., and Haight, J., concur.


source: Caselaw Access Project

author: Lewis, J.

license: Public Domain

text:
    In the Matter of the Proof of an Instrument Purporting to be the Last Will and Testament of Stephen Y. Groot, Deceased.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    Will—Pkobate.
    Decedent by his will left all his property to the sister of his deceased wife, she having sustained the relation of daughter to him, and resided with him at the time of his death. The estate was not large, the will was properly executed, deceased competent to make a will, and no undue influence was shown. Deceased left no relatives nearer than nieces and nephews. Held, that the will was properly admitted to probate.
    Appeal by Helen M. Tallman from a. decree of the surrogate’s court of the county of Cayuga, admitting to probate the will of Stephen Y. G-root.

      Frank S. Coburn, for app'lt; S. C. Payne, for resp’t.
   Lewis, J.

Stephen Y. Groot died at the city of Auburn on. the 24th day of December,, 1891, leaving an instrument purporting to be his last will and testament, which was executed on the 20th day of October, 1890. The sole beneficiary under the will is the proponent Lilla A. Payne, and she was by the will appointed sole executrix. The instrument was, upon Mrs. Payne’s application, admitted to probate as the will of the decedent by the special and acting surrogate of Cayuga county. Its probate was contested by a niece of the decedent, Miss Helen L. Tallman of the city of Hew York. The grounds of the contest were that the alleged execution' of the will was not the decedent’s freé and unconstrained or voluntary act, but was made and executed by the intervention of force and fraud and by undue influence and by misrepresentation, deceit and mistake, and that the decedent was not of a sound and disposing mind and understanding, and that the instrument was not executed in conformity with the provisions and requirements of the statute, and was, therefore, invalid as his last will and testament. Decedent had been a resident of the city of Auburn for many years. Up till about twenty years prior to the time of his death he was engaged in the grocery business, and had by industry and economy accumulated a small amount of property consisting of two dwelling houses, in one of which he was residing at the time of bis death; the other he had rented. The balance of his estate consisted of personal property. About twenty years prior to his decease he had, because of failing health, sold out his grocery and retired from business. He was at that time extremely nervous and his nervousness increased somewhat up to the time of his death. The decedent had a wife who died in the month of October, 1890, about four days prior to the execution of the will in question. They had no children. The beneficiary, Mrs. Payne, was not an heir at law or next of kin of the decedent, but when three years of age she became a member of his family and continued as such up till the time of her marriage. Thereafter and for a short time she resided with her husband and was not a member of the decedent’s family; but shortly after her marriage she became a widow and immediately thereafter returned and remained as a member of decedent’s family until the time of his. death. The family -consisted, prior to and up to the time of" the death of Mrs. Groot, of the decedent, his wife, Mrs. Payne and her 'mother, Mrs. Fleet-wood. After the death of Mrs. Groot, Mrs. Payne and her mother managed the household affairs.

The evidence tends to show that the will was duly and properly executed. Its provisions were very simple, the entire estate being given to Mrs. Payne. It was drawn by Mr. Turner, who was a practicing lawyer in Auburn, and who after the execution of the will became the surrogate of the county of Cayuga, and he was holding that office at the time the will was admitted to probate, and for that reason the proceeding was heard by the special surrogate, B. F. Huff. Mr. Turner was present at the execution of the will, and had charge of its execution. Mr. and Mrs. ■Chamberlain were present and became witnesses to the will at the personal request of the decedent. They were his near neighbors. When they arrived Mr. Turner had about finished drawing the will, and when he had completed it he read the attestation clause in the presence of the decedent and the witnesses, and the decedent then signed it and declared in their presence that it was his last will, and at his request they became subscribing witnesses thereto. While the contents of the will were not at the time of its execution disclosed to the witnesses, it is apparent from the= evidence that the decedent was aware of its provisions. The evidence tended to show that the decedent was all through his lifetime an exceedingly nervous man, and, in some respects, peculiar. His peculiarities and eccentricities became somewhat exaggerated in the latter part of his life; the evidence tends to show that his. eccentricities existed during the time he was engaged in business. He was very diligent in business, exceedingly particular, especially in small things about the store. He became somewhat addicted, during the latter years of his life, to the use of stimulants to such a degree ns to sometimes become intoxicated. But we think the-surrogate’s finding that the decedent was of a sound and disposing mind when he executed the will is fully sustained and warranted by the evidence.

The case is quite barren of evidence tending to sustain the allegation of undue influence. The evidence tends to show that Mrs. Payne, her mother and the deceased resided in the same-house as members of one family and upon terms of great friendship; the decedent frequently spoke of them in terms of affection and esteem. The case is barren of evidence showing any acts-on the part of Mrs. Payne or her mother to influence the decedent to make the will. The heirs at law and next of kin of the deceased consisted of eleven nieces and nephews. His relations with them, while not unfriendly, were not shown to have been of a very intimate character. Mrs. Payne had sustained the relation of a daughter to the deceased. She was a sister of the deceased’s wife. A few years prior to the making of the will in question he-had executed a will devising and bequeathing all of his property to his wife. Four days after her death he executed the will in-question, and the evidence failed to raise a reasonable presumption that its execution was brought about by any undue influence brought to bear upon him by any one. The disposition he made of his property under all the circumstances appears to be natural and proper. The estate was not large, consisting, as stated, of the dwelling houses and a small amount of personal property, the income from which was barely sufficient by economy and frugality to support his family; and he naturally under the circumstances concluded that the proper disposition to make of his estate was to devote it to the support of Mrs. Payne and her mother. We find nothing in the record justifying a reversal of the decree appealed from. It should be affirmed, with coste against the appellant.

Haight and Bradley, JJ., concur.


text:
    Henry S. Anderson, Resp’t, v. Edward T. Dickinson, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    Contract—Agency—Construction.
    Iti an action brought to recover commissions claimed by •plaintiff to be due him for bis services rendered under a written contract, it appeared that defendant was a resident of France, and engaged in importing to- the United States foreign nursery stock; that plaintiff was a nurseryman residing in New York state Under the contract in question plaintiff was to sell plaintiff’s stock, collect proceeds, etc., on a commission of ten per cent. It provided that a final settlement between the parties be reached by August 1st, and that “this agreement is for one term of one year from date, or until the business of the season of 1886-87 is wholly closed up.” Both parties testified that the business season in the nursery business is understood to be from the commencement to the close of the shipping season, about April 1st. Plaintiff’s contention was that under the contract he was entitled to commissions upon orders sent to defendant after the close of the shipping season in the spring of 1887. Held, that the contract should be construed as entitling the plaintiff to commissions only upon orders secured and filled prior to the close of the shipping season of 1886-87.
    Appeal by the defendant from a judgment entered in Cayuga county for $>1,008.71 damages and. costs, on the report of a referee.

      Herbert Green, for app’lt; F. D. Wright, for resp’t.
   Lewis, J.

The action was brought to recover commissions, claimed by the plaintiff to be due him for services rendered under a written contract made by the parties and dated August 25,1886. The defendant is a resident of Chatenay, France, and is engaged-in the business of importing to the United States foreign nursery stock, seeds, pits, etc. Plaintiff is a nurseryman residing in the town of Springport, Ff. Y. A Doctor Earley had for a number of years prior to his death acted as the defendant’s agent in this • country under contracts similar in terms to the one in question.

Plaintiff was interested with him in the business and had assisted in performing the doctor’s contracts with the defendant; he was at the same time engaged upon his own account in dealing in nursery stock. Doctor Farley died on the 24th or 25th of September, 1885, leaving a contract with the defendant for that year partially unperformed. Plaintiff notified the defendant of the doctor’s death and proposed to act as the defendant’s agent in carrying out the contract, to which the defendant assented. FTegotiations were thereafter entered into between the parties looking to the plaintiff’s acting as defendant’s agent for the following year. Some correspondence passed between them, but no definite arrangements were made until the defendant visited this country in the summer of 1886, when the terms of the contract which is the basis of this action were agreed upon and a written contract, the-substance of which is as follows, -was entered into between the-parties: Dickinson agreed to furnish stock to fill the orders which. Anderson might send him at prices that compare favorably with those of leading French houses and to pack the same in proper-manner. Then follow provisions as to the preparation of catalogues and publishing the same, and that the expense shall be borne equally by the parties; and Anderson agreed to send to Dickinson all orders sent to him and all which he might procure for all kinds of foreign nursery stock, seeds and pits during the continuance of the contract. The terms of payment for stock shall .generally be cash, but to parties whose references are satisfactory the terms may be one-half cash in November and one-half immediately on receipt of goods, and in a few cases from parties of unquestioned financial responsibility, if thought advisable, time of payment for the total amount may be extended to June 1st, but notlater. Anderson is to make collections and settlements with ■all parties in the United States for stock sent to them by Dickini son, and if it should happen by failure of any of the customers to pay for the goods ordered that there should be a loss, it should be borne equally by the parties.

In consideration of Anderson’s discharging all the minor conditions of the agreement Dickinson agreed to allow and pay him .a commission of ten per cent on the net value of goods on all -orders that he may receive from Anderson or that he may receive direct from customers the same as if forwarded through Anderson. Commissions are to be paid to Anderson at the time of final settlement. Anderson is to forward to the defendant all moneys as soon as collected from the customers. The contract provides that a final settlement between the parties is expected to be reached by August 1st, sooner if possible. And then follows a provision to the effect that if in making settlements with customers •a loss of twenty per cent on the net price of goods is sustained, Anderson is to have no commissions. The last provision of the -contract is as follows: “ This agreement is for term .of one year from date, or until the business of the season of 1886-1887 is wholly closed up.” The contract is dated Chatenay, 25th August, 1886.

The manner of conducting the business was as follows: “Shipments of stock commenced in the fall and continued on through the winter and until about the 1st of April, the time for commencing and closing shipments depending somewhat upon the conditions of the weather.” Both parties testified that the business season in the nursery business is understood to be from the commencement to the close of the shipping season. Soliciting orders for the following year was commenced at the close of the shipping season and continued on into the shipping season following.

The plaintiff after the close of the shipping season under, the Farley contract in the spring of 1886, assuming and expecting that lie would be able to make arrangements with the defendant to act as his agent, solicited orders and forwarded them to the defendant. The defendant arrived in this country about the first ■of June, and negotiations were carried on looking to the making •of the contract in question. The plaintiff had failed to remit moneys collected for the defendant under the Farley contract and was indebted to him in a considerable sum of money, and this fact delayed the consummation and execution of the contract. The plaintiff testified that he continued after the close of the' shipping season in the spring of 1887 to solicit orders for the defendant, and otherwise interested himself in the business, but he nowhere states that he was requested so to do by the defendant, except as it might be inferred by conversations between the parties about the business and defendant delivering to plaintiff .a price list for the next year. When these occurrences took place the defendant had not succeeded in collecting the money plaintiff owed him. The orders were not sent by plaintiff to the defendant ; they were sent by the customers. The last order plaintiff .sent personally was on the 17th day of March, 1887.

The defendant came to this country again in the summer of 1887, and attempted to effect a settlement with the plaintiff for the business of the prior year. The plaintiff had failed to pay over all the moneys collected for defendant and was indebted upon that year’s business to the amount of two thousand seven hundred dollars. The defendant failing to obtain the amount due him, placed the claim in the hands of an attorney and declined to enter into a contract with the plaintiff for another year, and returned to his home in France.

It is the plaintiff’s contention that under the contract he was entitled to commissions upon the orders sent to the defendant after the close of the shipping season in the spring of 1887, and which were to be filled during the shipping season of 1887 and 1888. The defendant’s contention is that the plaintiff was only entitled to commissions upon the orders which were forwarded to be filled during the shipping season of 1886 and 1887. The referee to whom the action was referred reported in favor of the plaintiff and assessed his damages at $770.04

No mention was made by the plaintiff during the negotiations for the settlement of the business of 1886-1887 that he claimed to be entitled to commissions for the orders sent by customers after the close of the shipping season of the spring of 1887. Plaintiff made out and presented to the defendant an account for commissions which was dated July 19, 1887, and which was headed “Statement season 1886 and 1887.” All of the items of this .account were for orders sent and which had been filled during the shipping season of 1886 and 1887. A larger proportion of the orders for which commissions are sought to be recovered in this action were forwarded before the date of this account, and yet no mention is made of them in it. Plaintiff had stated in one of his letters to the defendant that there were a few points in the contract that we both seemed to have overlooked. Upon being interrogated by the defendant as to what he referred to, he declined to inform him ; being asked to explain the letter when he was upon the stand as a witness, he first stated “I referred to commissions due in case I did not make a new contract with him ; ” but when farther interrogated upon the subject he replied, “There was one item besides what I have spoken of; that was where he charged me more in the invoice for stock I had ordered for myself than the price I was allowed to sell for to customers. I also think I had in mind this Baltimore order. I don’t re memher anything else. The matters last mentioned were manifestly not what he referred to in the letter, for the contract nowhere-made mention of the prices at which the goods were to be sold, nor of any Baltimore order.

The contract contains provisions inconsistent with the construction given to it hy the learned referee. It bore date, as we have-seen, August 25, 1886, and if the plaintiff under it was entitled to-recover commissions upon all orders forwarded prior to the 25th. of August, 1887, as the contract provided for selling the goods on-time, and in some cases the credit to be extended until the following June, it was manifestly impracticable to effect a settlement between the parties by the first day of August, 1887, as provided by the contract. A part of the duties of the plaintiff under the-contract was to attend to the delivery of the goods shipped and: to make collections and settlements with all the customers,, and in case of failure of the customers ultimately to pay plaintiff' was to sustain one-half of the loss, so that it was impossible to know by the time mentioned in the contract for a settlement whether the plaintiff had earned or was entitled to any commissions upon orders to be filled during the following season. Commissions were not earned upon the orders being forwarded. A large part of the work was to be done after the orders were sent before commissions were due, which was never done by the-plaintiff, and yet he has been allowed full commissions on all the orders sent.

The learned referee, as stated, construed the contract as entitling the plaintiff to commissions on all the orders sent after the-close of the shipping season of 1886-1887 and before August 25, 1887. He construed the clause: “Or until the business of the-season of 1886-1887 is wholly closed up.” as intended to give to-the parties such time as might be necessary after the close of the term definitely mentioned, to wit, August 25, 1887, for winding up the business that had been done during the year intervening between the‘25th day of August, 1886, and August 25, 1887. We are unable to agree witli this construction of the contract, reading it in the light shed upon it by the evidence, as.it is our duty to do, Smith v. Clews, 114 N. Y., 190; 23 St. Rep., 166 ; Atkinson v. Truesdell, 127 N. Y., 230; 38 St. Rep., 159; Woolsey v. Funke, 121 N. Y., 87; 30 St. Rep., 768; 1 Greenl. Ev., 363-374-375; the contract,we think,should he construed as entitling the-plaintiff to commissions only upon the orders secured and filled1 during the time intervening -between the close of the shipping-season of 1885-86, and the close of the season of 1886-87. The object of the disjunctive clause mentioned was to provide for the-termination of the contract when the year’s business was settled and finally closed, whether that should occur on the 25th of August, 1887, or at any time cither before or after that date. This construction, we believe, is In accordance with the understanding of the parties when they made their agreement, and as they understood it while it was being performed, and such a construction: works justice between them.

It is suggested by the plaintiff’s counsel that the defendant’s-.conduct shows that he had the same understanding of the contract as the plaintiff did, and he asks if not, why was defendant .making inquiries of the customers as to whether their orders were sent before or after the 25th of August, 1887 ? An obvious answer to this question is, that in view of the claim made by plaintiff such information might be important depending upon "the view the courts should take of the contract. If plaintiff’s •construction prevailed it was important that defendant should know the extent of his liability. If the court should construe the contract according to the defendant’s contention the inquiries would then be of no avail.

Plaintiff claims that he rendered services in procuring orders to be filled in the fall, winter and spring of 1887 and 1888, for which he should receive compensation in this action. That depends upon whether they were performed under this written contract, for the cause of action stated in the complaint is under that •contract, and he cannot under such a complaint recover upon a quantum meruit for services not performed under the contract.

The plaintiff failed to make a case entitling him to recover. The judgment appealed from should be reversed, and a new trial granted, with costs to abide the event.

Dwight, P. J., and Haight, J., concur.


text:
    Ransom H. Miller, App’lt, v. Thomas J. Reynolds et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    IFraud—Transfer of real estate.
    In an action to compel defendants to reconvey to plaintiff certain premises bn the ground that the title thereto was obtained by fraud, it appeared that part of the consideration for the transfer was a promissory note of a corporation signed by defendant as president. Plaintiff contended that defendant was not authorized to make the note, while there was evidence tending to show that the corporation owed defendant the amount of the note, and defendant testified that he exhibited to plaintiff at the time of the trade an agreement with the corporation and informed him that it gave him a right to make the note, and he testified that he believed he had such power and right. Held, immaterial whether the agreement in fact gave defendant the power to make the note; it was sufficient to sustain the transfer if he gave the note in good faith believing he had such power.
    Appeal from a judgment entered in Monroe county upon the •decision of the Monroe equity term, dismissing the complaint, with costs.

      John Van Voorhis, for app’lt; E. A. Nash, for resp’ts.
   Lewis, J.

This is an action to compel the defendants to re-convey to the plaintiff certain premises described in the complaint, situated on Monroe avenue in the city of Rochester, on the ground that the defendant, Thomas J. Reynolds, obtained title thereto from the plaintiff by fraud.

The answer was a general denial of each and every allegation of the complaint.

The court found that the plaintiff had failed to establish the •■allegations of fraud; and further found that the plaintiff by a subsequent agreement with the defendant, Thomas J. Reynolds, ratified and confirmed the sale and conveyance.

The plaintiff conveyed the property in question to the defendant, Thomas J. Reynolds, in the month of February, 1891, at the price of $22,000, subject to a mortgage thereon of $6,000, in consideration of which the defendant transferred to the plaintiff $10,000 of the stock of the Trotter Refrigerator Company, and gave the plaintiff what purported to be the promissory note bf the Refrigerator Company made by the defendant as its president for $6,000.

The testimony as to the representations that were made by the defendant to the plaintiff and to his agent, Hapgood, to induce and bring about the conveyance of the property was very conflicting and contradictory.

The plaintiff’s evidence tended to establish the allegations of his complaint, that he was induced to make the conveyance by material representations made to him by the defendant that were false and known to the defendant to be false when he made them.

The defendant by his own testimony, and "that of other witnesses he called, controverted and denied the plaintiff’s charges of fraud in every particular.

The trial justice, who bad the advantage of seeing the witnesses and hearing their testimony, found that the plaintiff had failed to make a case, and dismissed the complaint.

The plaintiff contends that the defendant was not authorized to make the $6,000 note which he gave the plaintiff in part payment for the property.

There was evidence tending to show that the company was indebted to the defendant at the time the note was made in an amount equal to the amount of the note.

He claimed that power was' given him to make the note by a written agreement he had made with the company.

He exhibited the agreement to the plaintiff at the time of making the trade, and informed plaintiff that he claimed that the contract gave him the right to make the note, and he testified that he believed he had the power and right to make it.

That being so, it is not important whether the agreement, in fact, gave him the power. It was sufficient if he could satisfy the court" that lie gave the note in good faith believing the agreement gave him the right to make it.

If he was not authorized' to make the note he would be liable to pay plaintiff the amount of it, but it would not have been any ground for setting aside the conveyance.

The trial court found that the plaintiff after being fully advised of all the facts ratified and confirmed the sale.

There was evidence tending to sustain the finding.

The plaintiff claims that the answer being simply a general denial, that not having pleaded ratification the defendant was not in a position to avail himself of such a defense.

The evidence of ratification came into the case without the objection being made that the pleadings did not warrant it, and it-is too late upon appeal to raise the question.

The. answer can be amended even now if substantial justice will be thereby promoted.

The judgment appealed from should be affirmed, with costs of the appeal.

Dwight, P. J., Haight and Bradley, JJ., concur.


text:
    Adam Hermann, App’lt, v. William E. Passmore et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    Specific pebeobmabce.
    In an action brought to compel the performance of a parol contract the complaint alleged that defendant M., wife of defendant W., had given plaintiff a mortgage to secure a debt which W. owed him; that thereafter the defendants, desiring to use the mortgaged property as collateral security to their note at a bank, requested plaintiff to discharge his mortgage, which he did, they agreeing that they would then execute a larger mortgage to the bank, which was to be used as collateral security for defendants’ note and also for plaintiff’s note of $885, indorsed by defendants, which he expected to get discounted, and that defendants should guarantee and pay Ins note for $600, the amount W. owed him, which he had discounted, that defendants did not pay the $600 note nor the §385 one, that when the latter became due they entered into an agreement that plaintiff should pay it, and defendants would deliver him a bond and mortgage for $600. He paid the note, but the bond and mortgage was not delivered. Held, that as the $385 note was given for plaintiff's sole benefit and not for any debt of defendants’, he had failed to establish a cause of action.
    Appeal from a judgment of the special term of Erie county dismissing the plaintiff’s complaint, with costs.
    The action was brought to compel the performance of a parol contract made by the defendants, William E. and May E. Pass-more, with the plaintiff. The complaint alleges that the defendant William E. Passmore was indebted to the plaintiff in December, 1891, in the sum of $500; that May E. Passmore, wife of William E., to secure said indebtedness, executed a mortgage to the plaintiff on her premises, and that thereafter the Pass-mores desiring to use the mortgaged property as collateral security to their note for a thousand dollars at a bank, requested thfe plaintiff to discharge the mortgage given by Mrs. Passmore, and the parties thereupon agreed that the plaintiff should release and discharge the five hundred dollar mortgage, and that the defendants would execute to,the-bank a mortgage on Mrs. Pass-more’s premises for $1,000, which was to be used at the bank as collateral security for money to be borrowed by the Passmores and also as collateral to a promissory note the plaintiff wished to give for $385, which he expected to get discounted at the bank.
    And then follow allegations to the effect that the indebtedness of William E. Passmoi-e to the plaintiff having thereafter increased $100, .that it was agreed that the plaintiff would give his promissory note for $600, the payment of which the defendants Passmore would guarantee, and which was to be discounted at the Queen City Bank in Buffalo, and the plaintiff was'to assign to the bank a mortgage he owned upon real estate for the sum of $1,000 as collateral to his said note of $600; that he discharged the $500 mortgage given by Mrs. Passmore, made his own note for the $385 which was indorsed by the Passmores and discounted by the bank, the plaintiff having the avails of the discount, and that he gave his own note for $600, which was for value received guaranteed by the Passmores, and which he pro•cured to be discounted; that the Passmores agreed to pay the .$600 note; that they failed and neglected to pay said note, and that the plaintiff was compelled to pay and take it up; that the Passmores neglected to pay the $385 note at its maturity or any part of it, and that thereupon another agreement was entered into to the effect that the plaintiff should pay and take up the $385 note; that the Passmores should, in consideration thereof, execute and deliver to the plaintiff their bond for the sum of $600, which should be secured by a mortgage for that sum executed by the defendant, May E. Passmore, on premises then owned by her; that the bond and mortgage were executed ready to be •delivered to the plaintiff, and that thereupon the plaintiff paid :and took up the$385 note, but that the Passmores refused and neglected to deliver the bond and mortgage, and that thereafter, with intent to cheat and defraud the plaintiff, Mrs. Pass-more conveyed the premises covered by the mortgage to the defendant, Ellen E. Hotaling, she giving back to Mrs. Passmore a mortgage for $800, part of the purchase price, which Mrs.Passmore fraudulently assigned to the defendant, Henry J. Humburch. The plaintiff prayed for judgment adjudging and -decreeing that the defendants Passmore deliver over to the plaintiff the bond and mortgage for $600, and that the same should become a lien upon the premises prior to the conveyance to Mrs. Hotaling and the mortgage held by Mr. Humburch.
    A't the trial the plaintiff read his complaint, and thereupon admitted that the note for '$385, indorsed by the defendants Pass-more, and used at the bank as stated in the complaint, was not given for any debt or demand owing by William E. Passmore or May E. Passmore to the plaintiff. Thereupon the plaintiff’s complaint was dismissed upon the ground that it did not state a- cause ■of action. The plaintiff duly excepted.

      Frank R. Perkins, for app’lt; Hugh C. Sells, for resp’t.
   Lewis, J.

We are not able to see that the Passmores were under any legal obligation to reimburse the plaintiff for the money he paid to the bank to take’up his own note given for his -own benefit. Concededly it was given his own benefit, and not .for any debt or obligation the Passmores, or either of them, owed him. The plaintiff, it is true, had discharged and surrendered a bond and mortgage he held upon Mrs. Passmore’s property for the sum of $500, and they had thereafter promised to give to the •plaintiff a bond and mortgage for $600. The alleged consideration, however, for the promise as stated in the complaint was the plaintiff’s paying his own note of $385. In view of the accommodation extended to the defendants Passmore by the plaintiff in discharging the $500 mortgage, he might very well have expected that they would extend to him in return the agreed accommodation. The plaintiff, however, does not seem to have, any legal claim upon the defendants which the courts can enforce. The contract which the plaintiff claims the defendants failed to perform, and upon which he relies for his cause of action, has to do only with the $385 note. Reference is made in the complaint to another note of $600. The allegations of the complaint in regard to the giving of the bond and mortgage for the sum of $600 have no apparent reference to the $600 indebtedness. The complaint shows that the plaintiff has a demand against the defendant, William E. Passmore, for the sum of $600, but he had no interest in the real estate in question, and if he had, plaintiff is not in a position to attack the conveyance to the defendant, Hotaling, or the assignment of the $800 mortgage to Humburch, as liis demand against William E. Passmore is not in judgment

The court at special term correctly held that the plaintiff had failed to state a cause of action in his complaint.

The judgment appealed from should be affirmed, with costs.

Dwight, P. J., and Haight, J., concur.


text:
    Lillie Kling, Resp’t, v. The City of Buffalo, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    1. Municipal corporations—Negligence—Snow and ice.
    While city authorities are required to be reasonably vigilant in keeping the sidewalks in proper condition, they arc not expected or required to do what is practically impossible, remove snow and ice in this climate from the sidewalks immediately after it falls or forms.
    3. Same—Contributory negligence.
    Where, in an action against a city for injuries caused by falling on an icy sidewalk, it appeared that plaintiff knew of the condition of the ice and deliberately walked on it, when she could have passed along the side in safety, Held, that plaintiff was guilty of negigence contributing to her injury and could not recover.
    Appeal from a judgment entered in Erie comity in favor of the plaintiff against the defendant for $1,140.97, and from an order denying a motion for a new trial on the minutes. The action was for the recovery of damages sustained by the plaintiff in falling upon a sidewalk in the city of Buffalo.

      Philip A. Laing, for app’lt; Wallace Thayer, for resp’t,
   Lewis, J.

Giving to the evidence the most favorable construction for the plaintiff it will bear, it fails, we think, to sustain the recovery. The accident happened upon the sidewalk upon the northerly side of Swan street between Main and Washington streets on the -Í7th day of February, 1892, at 11:30 in the morning, by the plaintiff falling upon ice on the walk and fracturing her arm. The negligence complained of was in permitting the snow and ice to accumulate and lay upon the sidewalk. There was perhaps evidence enough to show that the ice had remained a sufficient length of time to constitute constructive notice to the defendant.

The evidence tended to show that daring the month of January and the fore part of February a large amount of snow fell in the city of Buffalo. Nearly four feet of snow fell in the month of January. The streets and sidewalks all over the city were during that month and the early part of February more or less covered with snow and ice. The amount of snow was so large that the householders were somewhat neglectful of their duty m removing it from the walks. The weather in the fore part of February, and up to the time of the accident, was very changeable. There was snow, sleet and rain, sometimes thawing and freezing in the same day. About one and one-half inches of snow fell on the 11th of February, accompanied with wind, which drifted the snow considerably. On the 14th of that month a small amount of wet snow and rajn fell and froze as it fell, forming ice and making the walking all over the city very difficult. It continued to freeze on the 16th and 17tli of the month. The sidewalk at the place of the accident was eight feet in width. ' Its condition is variously described by the witnesses. The plaintiff testified that the whole sidewalk at the place of the accident was icy; was hard ice and no snow upon it; that there was a ridge of ice three or four inches thick in the center; that it was an inch or two inches higher in the center than at the sides, sloping off to the right and left Salena Weldorf, who was walking with the plaintiff at the time of the accident, testifies that there was some ice. She did not know how thick, but it only covered a part of the width of the sidewalk; and that there was a path near the curbstone sufficiently wide to walk upon where there was no ice. The ice was hard and solid, looking like glass.

The witnesses called by the defense testified that.there had been a pathway cut through in the center of the walk sufficiently wide for two persons to walk abreast that was substantially free from ice. The evidence fairly established that there was at the place where the accident happened smooth ice upon a portion of the width of the sidewalk some three or four inches in thickness and sloping very slightly to the sides of the walk. "

It was established upon the trial that the winter of 1892 was-an unusually severe one, and that the sidewalks in the city the greater part of the winter were covered with snow and ice, rendering the walking difficult. The frequent and sudden changes in the weather made it practically impossible to keep the many miles of sidewalk in the city free from snow and ice. To accomplish such a task it would have required an amount of labor and an expenditure of money not to have been expected or required of the municipality under the circumstances. While the city authorities are required to be reasonably vigilant in keeping the sidewalks in proper condition, they are not expected or required to do what is practically impossible, remove the snow and ice in this climate from the sidewalks immediately after it forms.

The ice at the place of the accident was smooth, the surface of it was practically level with a slight elevation in the center. The sidewalk at the place of the accident was, without much doubt, in better condition than most of the sidewalks in the city at the time. It was a thin covering of ice such as may be expected in case of frequent changes in the weather in winter. The occupant of the premises adjoining understood it to be his duty to keep the sidewalk free from ice. He testified that he did so as far as he could, and frequently sprinkled it with sand or asheS during the winter of 1892.

To hold the city liable for negligence in this case would impose upon it the duty of keeping all of the sidewalks in the city free from snow and ice during the inclement winters of this climate. It is a matter of common observation, that during such weather all the sidewalks of the city are covered to a greater or less extent with snow and ice. And in case of rain or thawing followed by freezing weather, the whole city is covered with ice.

It was held in Taylor v. The City of Yonkers, 105 N. Y., 206; 7 St. Rep., 332, that in such emergencies the corporate authorities may wait without negligence a change of temperature which will remove the danger.

The plaintiff fully understood and comprehended the condition of the ice before she attempted to pass over it. All the information she had upon which she based her testimony as to the condition of the ice she acquired by looking at it before she fell. She knew about its thickness; that the center was somewhat elevated above the sides; that it was smooth, and deliberately walked upon it, when, if the testimony of the witness who accompanied her was correct, she could have passed along the side of it with safety. It was not a case of walking upon ice in the night time, or when it is covered with snow so that its true condition is not known. Understanding," as she did, the situation, she must be held to have been guilty of negligence contributing to her injury.

We think the plaintiff failed to make a case, and that the judgment and order appealed from should be reversed, and a new trial granted, costs to abide the event.

Dwight, P. J., and Haight, J., concur.


author: Dwight, P. J.

text:
    The Empire State Telephone & Telegraph Co., Resp’t, v. Frank A. Bickford, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    Reference—Compulsory—Accounting by agent.
    In an action for an accounting by an agent the complaint alleged thafe defendant had rendered accounts which were subsequently found to be false; that in furtherance of an intention to start a business in opposition to that of plaintiff, he took a lease of the office in his own name and suffered plaintiff’s business to deteriorate, and converted to his own use certain structures and apparatus belonging to plaintiff; that by reason of such acts and omissions plaintiff had suffered great loss and been put to large expense, which was sought to be recovered when ascertained on a proper accounting. Held, that while some of the allegations might have afforded ground for an action of tort, yet they all constituted part of the course of dealing of the agent with the property of the principal, and that the case was one of equitable cognizance and a compulsory reference proper.
    Appeal by the defendant from an order of Monroe special term, referring the issues in the action to hear and determine.

      T. E. Courtney, for app’lt; F. E. Storke, for resp’t.
   Dwight, P. J.

The action was brought to obtain an accounting by the defendant of his agency for the plaintiff as manager of its office and business at Cortland for a period of ninee years, ending with the 31st day of December, 1892. The business so managed by the defendant was that of a telephone exchange, through which communications were carried on between about 135 subscribers, besides what was known as toll or trunk line business. The complaint further alleges that during the period of his agency the defendant rendered to the plaintiff frequent reports, in items, which purported to contain a true account of the receipts and disbursements of the office; but that after defendant was dismissed from the service of the plaintiff in December, 1892, the plaintiff, for the first time, discovered that those reports were incorrect and. untrue in many particulars, both as to receipts by the defendant to the use of the plaintiff and as to disbursements which were charged as having been made in its behalf; the items, amounts and dates of which are known to the defendant, but are unknown to the plaintiff.

The complaint also alleges that for a considerable time before his dismissal the. defendant had entertained the purpose to establish a telephone business in the village of Cortland in opposition to that of the plaintiff; and in furtherance of that plan had taken in his own name a lease of the office occupied by the plaintiff, without its knowledge; and had negligently and wilfully permitted the plant and property and service of the plaintiff, under his charge, to deteriorate and become less effective than if properly and faithfully cared for and managed by him, and had thereby caused the patrons of the plaintiff to become dissatisfied with such service, and had imputed the fault of such deterioration to the plaintiff; that in further execution of his pian the defendant had appropriated and converted to his own use certain structures and apparatus belonging to the plaintiff and used by it in the operation of its business, and had refused to deliver possession of the same to the plaintiff on demand; that by reason of such acts and omissions on the part of the defendant, the plaintiff has suffered great loss and damage in its business and revenue and been put to large expense, which loss and expense the plaintiff seeks to recover when ascertained by a proper accounting; for all of which the plaintiff has no adequate remedy at law, and the plaintiff therefore demands judgment for an accounting by the defendant in respect to his receipts and disbursements of money belonging to the plaintiff; in respect to the cost and value of the articles of personal property of the plaintiff converted to his own use by the defendant; determining the amount of loss and damage to the plaintiff in its business and revenue, and of the expense to which it has been put, by reason of the acts and omissions of the defendant before mentioned, and adjudging that the plaintiff recover of the defendant the amount found chargeable to him on such accounting.

The defendant by his answer admits the incorporation of the plaintiff, its business at Cortland, and his employment therein as the plaintiff’s agent and manager as alleged in the complaint. But lie denies specifically all the allegations of violation of duty, bad faith and negligent and willful mismanagement on his part, in that relation; denies that he is indebted to the plaintiff in any sum for or by reason of any of the matters and things mentioned in the complaint; pleads the statute of limitations, and that he has ¡laid and settled in full for all the causes of action so alleged.

There can be no doubt that the complaint above sketched presents a case for the equitable cognizance of the court, and one which entitles the plaintiff to an accounting. Here was the fiduciary relation of principal and agent, continuing through a series of years, involving the daily receipt and disbursement of moneys by the latter for the former, with the consequent duty to account from time to time, and the failure to account, or, what was worse, the rendition of false accounts. Nothing was wanting to give to equity jurisdiction to compel an accounting. In Marvin v. Brooks, 94 N. Y., 71, Finch, J., speaks of an agent so entrusted as stand-in the attitude of “a quasi trustee, ancl by reason of that relation knowing what the other party cannot know, and bound to reveal to him the entire truth.”

It is also by reason of this relation of trust and confidence, demanding absolute fidelity and the greatest diligence, that such an accounting will be made to embrace questions of fraud and neglect and mismanagement. Christy v. Libby, 5 Abb., N. S., 192; Marston v. Gould, 69 N. Y., 220, and this is true even though some of the allegations of the complaint might have afforded ground for .an action of tort. Vilmar v. Schall, 61 N. Y., 564. In this case all the facts alleged which suggest a cause of action ex delictu constitute part and parcel of the course of dealing of the agent with the property and interests of the principal, and are consequently matters of which the plaintiff is as much entitled to an accounting as if no bad faith and willful violation of duty were, charged.

The case made by the complaint being clearly one of equitable cognizance, and which entitles the plaintiff to an accounting, it was of course referable on the motion of either party, or of the court itself on the trial. The account of receipts and disbursements alone is a long one both in point of time and necessarily in the number of its items. We think the reference was properly made, and that the order appealed must be affirmed.

Order appealed from affirmed, with ten dollars costs and disbursements.

Lewis and Haight, JJ., concur.


text:
    Frederick R. Cole, Pl’ff, v. The Rome, Watertown & Ogdensburg Railroad Co., Def't.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    1. Master and servant—Railroad—Negligence.
    Plaintiff, a brakeman, was thrown from the car by a sudden jerk caused by a change of direction of the train in response to a mistaken signal given by a fellow brakeman. Held, that the company was not liable because of a failure to adopt and promulgate a rule confining the giving of signals to one person connected with the train, in the absence of proof that such a rule was reasonable or practicable of enforcement, or that such a rule, if it existed and was enforced, would have prevented the accident.
    3. Same—Assumption of bisk.
    The risk of accident and injury resulting from such a mistake is incident to the employment of a brakeman, and, therefore, a risk as-umed by him when he enters upon or continues in such employment with knowledge of such risk.
    Motion by the plaintiff for a new trial on a case and exceptions directed to be heard in the first instance at general term, after a non-suit granted at the Monroe circuit.

      Charles Van Voorhis, for the motion; Edward Harris, opposed.
   Dwight, P. J.

The action was for a bodily injury sustained by the plaintiff while engaged:as a brakeman on a freight train of the defendant.' He was head brakeman and one Gurnee was hind brakeman of the train. They were engaged in making up a train at the Charlotte terminus; the jriaintiff was on the hind end of the last car of a section of the train which was being backed down a siding, and Gurnee was on the ground. The latter gave a signal to the engineer, in response to which the engine was suddenly reversed, and a jerk was pi’oduced which threw the plaintiff off the end of the car to the ground, and the injury was received of which he complains in this action.

The only negligence charged upon the defendant by the complaint consisted in its failure to adopt and promulgate a rule or rules which would have prevented Gurnee from giving the signal mentioned. That rule, it is suggested, should have had the effect to confine the giving of signals to some one person connected with the making up or movement of each train.

There are several reasons why it must be held that no cause of action was made out in this case. In the first place there is no evidence that such a rule as that proposed was either reasonable or practicable of enforcement in the making up of freight trains, and in the next place it does not appear that the rule, had it existed and been enforced, would have prevented the accident in question.

Gurnee gave the signal as he did under the mistaken belief that the object of backing down had been accomplished, and that the two hind cars had been uncoupled to be left on the siding. So far as appears, he was as likely to have made that mistake had he been the only person authorized to give the signal as he was being one of two persons so authorized to do. Moreover the plaintiff knew there was no such rule as that suggested ; he knew that his fellow brakeman was authorized to give signals to the engineer when circumstances required, and that he was liable to error and mistake in so doing as in the performance of any other of his duties ; the risk of accident and injury resulting from such mistake was incident to the plaintiff’s employment and was, therefore, a risk assumed by him when he entered upon or continued in such employment with a knowledge of such risk.

The fact, if it was such, that the brakes on the two hind cars were defective, had no bearing upon the question of the defendant's negligence, as it had no effect to produce the accident described. The fact was not mentioned in the complaint, and it appeared in the evidence only incidentally as explaining why the two cars had not been uncoupled as Gurnee supposed they had been.

The case seems to us, on the whole, to be without evidence of any negligence chargeable to the defendant which either caused or contributed to produce the injury complained of, and the view we have taken obviates the consideration of any other question in the case.

The nonsuit was properly granted, and the motion for a new trial must be denied.

Plaintiff’s motion for a new trial denied and judgment directed for the defendant on the nonsuit.

Lewis and Haight, JJ., concur.


text:
    Charles Kinyon et al., App’lts, v. Albert Kinyon, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    1. Advancements—Release.
    The complaint alleged that the father of the parties conveyed a farm to defendant as an advancement and took hack a release of all share in his estate; that in a proceeding for the settlement of the accounts of the personal representative of the father defendant was permitted to interpose an answer alleging that the release was void, and that the surrogate decided that he had no jurisdiction to determine the validity of the release and adjourned the proceeding to await the determination of an action to determine that question. Evidence was given to show that it was understood between defendant and his father that the effect of the transaction was to bar him from claiming? any share in the estate, and also that other farms had been given to his brothers. Held, that it was error to limit the scope of the aclion to a determination of the validity of the release isolated from its surroundings, and to refuse to determine whether a contract had been made which ought to be enforced in equity,
    2. Heirs—Release ob1 interest in estate.
    The fact that the assignment or release by an heir of his expectancy to his ancestor’s estate was mude to the ancestor himself is not conclusive against the effect of the instrument.
    Appeal by the plaintiffs from a judgment entered on the findings and decision of the court at the Niagara special term.

      D. Millar, for app’lts; G. D. Judson, for resp’t.
   Dwight, P. J.

The four individual parties to the action are the four sons and sole heirs at law and next of kin of John Kin-yon, Sr., deceased, and one of the brothers is also joined as plaintiff in his representative capacity, as administrator of his father’s estate. The complaint alleged the execution and delivery by the father in his lifetime, to the defendant, of a deed of a farm of 91 acres of land, “as an advancement,” and the execution and delivery thereupon, and in consideration thereof, by the defendant to his father of an instrument in writing, under seal, which after stating the fact of the deed above mentioned proceeded in the following terms: “ Now, therefore, in consideration of such conveyance being made and delivered to me as aforesaid, I do hereby renounce, release, give up and set over unto my said father, all my right, title, interest, claim and demand whatsoever in and to all and every part, parcel or shave in and to his real and personal estate which I may or will have at or upon his death, in expectancy, hy reason of being a devisee or legatee under any will he has made, or by reason of being one of his next of kin, excepting the lands hereinabove referred to as conveyed to me by him this day.”

The complaint further alleges that in proceedings instituted in the surrogate’s court of the proper county by the plaintiff Charles Kinyou, as administrator of his father’s estate, for the settlement of his account as such administrator, he set up the execution and delivery by the intestate of the deed above mentioned to the defendant, and the execution and delivery of the release aforesaid in consideration thereof, and alleged that by such release the defendant did renounce, release and give up all his right, title and interest in and to the estate of the deceased and his -right to share therein, and that by reason thereof he was not entitled to any share of or interest in the distribution of said estate; “that thereupon, notwithstanding such release, the defendant was permitted to intervene upon such accounting, and that he filed an answer contesting said account in so far, only, as the same related to the accounting aforesaid, and, among other things, therein alleged that the said alleged release was void and of no legal force and effect, * * * and that he, the said Albert Kinyon, was entitled to an equal distributive share of the said decedent’s estate, viz.: the one-fourth part thereof,” and that he asked that a decree be made accordingly.

The complaint further alleges that when the issues thus joined ■ came up to be heard by the surrogate he held and decided that he had no jurisdiction to determine the validity or invalidity of the release and that the account of the administrator could not he judicially settled nor any part of the estate distributed until the question of the validity or invalidity of the release should be determined in the proper tribunal, and that the surrogate thereupon made and entered an order to that effect, and adjourned the accounting, which the plaintiffs are informed and believe will be further adjourned or held open pending the determination of this action.

On the trial of this action evidence aliunde the deed and agreement was given by the plaintiffs, under objection of the defendant, tending to show that at the time of the execution of the papers it was understood and agreed between the deceased and the defendant that the effect of the transaction as a whole was to bar and prevent him from ever thereafter claiming any share of or interest in his father’s estate. It was also shown that the father had before that time deeded farms to two of his sons, and that he did on this occasion deed a farm to the other of his sons, aside from the defendant; and that at the same time there was proposed, and some steps were taken towards a division then and there of the certain moneys and securities which was all the property the father then had undisposed of between the three brothers other than the defendant; but that on the father manifesting reluctance to strip himself entirely of the last of his possessions that final division of the personal property was abandoned. The result was that on the death of the father, not long after, there was of his estate about the sum of $3,000 in personal property to be distributed among such of his sons as were entitled thereto, and it was upon the return of a citation for the settlement of the accounts of the administrator, with a view to such distribution, that the controversy arose before the surrogate which has resulted in this action.

Assuming—what is not questioned by any one of the parties hereto—that this action was properly brought in aid of the proceedings before the surrogate, the question here seems to us to be, what was properly the scope of the action, and was the case considered and disposed of below in accordance therewith.

The learned judge at special term seems to have restricted the scope of the action to a determination of the validity and effect as a transfer of the release or agreement executed by the defendant. In the opinion, which we find in the case, he intimates that no other question was presented by the pleadings and that no other was tried before him. He seems disposed, moreover, in determining this question, to isolate the instrument from its surroundings and construe it by its own terms as standing alone. Treated thus the instrument is found to be an assignment or transfer of a mere expectancy, not coupled with any present interest, and it is held to be absolutely void in law, upon the authority of such cases as Jackson v. Wright, 14 Johns, 192 ; Jackson v. Hubbell, 1 Cow., 613 ; Miller v. Emans, 19 N. Y., 384, and it was upon this as a controlling conclusion of law that the case was disposed of not merely by a dismissal of the complaint, but by an affirmative adjudication that the defendant was entitled to a full distributive-share of the personal estate of his father “ as one of his next of kin, the same as if said instrument had not been executed.”

This conclusion ignores any equitable effect which might be given to the instrument in view of the other circumstances of the transaction, and, especially, rejects it as evidence of an advancement made to the defendant in full of his prospective interest in " his father’s1 estate. These latter were, we think, aspects of the case which were fairly presented both by the pleadings and by the proofs to which brief reference has been made above.

That the mere expectancy of an heir to his ancestor’s estate may be assigned, and that such an assignment will be enforced in equity after the death of the ancestor, if made bona fide and for a valuable consideration, admits of no doubt. Quarles v. Quarles, 4 Mass., 680; Kenney v. Tucker, 8 id., 143; Power's Appeal, 63 Penn., 443 ; Stover v. Eycleshimer, 46 Barb., 84; 3 Keyes, 620. And that the assignment or release in this case was made to the ancestor himself, and not to any person capable of taking after his death, is not conclusive against the effect of the instrument. In the case of Power’s Appeal, supra, was one in which sons had received advancements from their father and executed releases to him in full of their shares of his estate; and the court by Read, J., said: “An heir or an expectant devisee or legatee may, in the life time of the intestate or testator, in equity sell or assign his expectant or contingent interest, whatever it may turn out to be upon the death of the person from whom it may come, which contract, if made upon a valuable consideration, a court of equity will enforce. If so, there can be no reason why a father should not make such a contract with a son, which should entirely bar all his claim as an heir to any part of his parent’s estate.”

So in this case before us we think it was clearly within the scope of the action, as presented by the pleadings and the proof, to determine whether such a contract was made between the deceased and the defendant which ought to be enforced in equity. This question was also, we think, fairly presented by the plaintiff’s requests to find, and without intimating any opinion as to what the finding in that respect should have been we are clearly of the opinion that the court erred in refusing to find thereon on the ground that the question was not before the court.

For the error here indicated, the judgment should be reversed nnd a new trial granted.

Judgment appealed from reversed and a new trial granted, with costs to abide the final award of costs.

Lewis, Haight and Bradley, JJ., concur.


text:
    In the Matter of the Accounting of Howard Soule et al., Ex’rs.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    Surrogates’ court—Opening decree.
    The surrogate has no jurisdiction to open a decree made by him on the. ground that by inadvertence of the attorneys it does not accord with the understanding of one of the parties as to the effect of the agreement upon which it was based. The “ other sufficient cause” for which a surrogate may open a decree must be of the same or like nature with the causes particularly specified, such as fraud, newly discovered evidence or clerical error.
    Appeal by George S. Everts, one of the executors, from an order of the surrogate of Cayuga county, opening and modifying a decree of his court previously made in the same matter.

      Oscar Tryon, for app’lt; F. E. Storke, for resp’ts.
   Dwight, P. J.

The controversy here is solely between one of the present executors of the will and the personal representative of a former executor,- deceased; it relates solely to the award of commissions to the two, respectively, and it must turn, as we think, upon the single question of the power of the surrogate to make the order appealed from.

The testator, Lyman Soule, died in November, 1885. leaving a will by which he nominated Howard Soule, Charles F. Durston and Charles G. Briggs as its executors, and they received letters testamentary in June, 1886. Mr. Briggs died in August, 1887, and Mr. Everts was appointed his successor in April, 1891.

In May, 1891, the proceedings for an accounting were instituted which finally resulted in the decree the modification of which is the subject of this appeal. All parties interested were duly served with citation to such accounting, among whom the respondents here, executors of the will of the deceased executor, Briggs, appeared by attorneys, who represented them throughout the proceedings. Those proceedings were adjourned from time to time until August, 1892, during which period of more than a year negotiations for an amicable adjustment of all questions arising upon the accounting were pending between counsel for the numerous parties interested, and frequent conferences on the subject were held, at nearly all of which one or the other of the attorneys for the executors of Briggs were present. The result of these negotiations seems to have been a compromise and settlement of all differences between the parties and an agreement, in which all united, upon the provisions of the decree to be entered, and it was delegated to two of the attorneys, one of whom represented the executors and one various legatees, to draft the decree, and the decree thus prepared was duly entered by the surrogate as of the 1st day of August, 1892.

Among the matters so agreed upon was a provision to the effect that three full commissions should be allowed to the executors, one of which should be awarded to Mr. Soule, one to Mr. Durston, and the third to Mr. Everts and the estate of Briggs jointly; and the agreement between the two last named parties was that such third commission should be divided equally between them; and so it was provided by the decree as entered so far as the provision on that subject went. But just at this point the difference arose. Counsel for the executors of Briggs depose that they understood that the agreement for an equal division of the commissions in question extended to all the commissions earned and to be earned throughout the entire administration of the estate, and supposed that the decree to he entered would so provide; whereas the decree as entered made provision only for commissions earned up to its date and was silent in respect to the award of commissions thereafter to be earned. It was on the ground of this omission to provide for the distribution of future commissions that the order was made from which this appeal was taken. The application for that order was not made until more than three months after the decree was entered, and after Mr. Everts had been called upon by the executors of Briggs and had declined to sign an agreement to the effect that ■all future commissions awarded to him should be equally divided with them.

The order appealed from, in modifying the decree previously entered, entirely ignored the agreement for equality of division between the Briggs estate and Mr. Everts upon which the provisions of the decree, in that respect, had been based, and made the division upon an entirely different basis and in about the proportion of 25 to the former to 11 to the latter.

We do not think it necessary to examine the grounds upon which the new apportionment was made,because we are of opinion that the surrogate was wholly without jurisdiction, upon the allegations and proofs before him, to open the decree for any purpose or to modify it in any respect.

The surrogate and the surrogate’s court are tribunals of strictly statutory jurisdiction. Section 2481, subdivision 6, of the Code of Civil Procedure confers upon either of them, as the case requires, the sole power which is possessed by either to open or modify a decree of the surrogate’s court; and the limitation of that power is prescribed by the same subdivision, viz: that it may be exercised only “ for fraud, newly discovered evidence, clerical error or other sufficient cause.” There was in this case no suggestion of fraud, of newly discovered evidence or of clerical error, but only, at the most, that the provision of the decree in question was not fully in accordance with the understanding of one party as to the effect of the agreement—the terms of which were not in dispute—which was the basis of that provision. Such a ground of complaint is clearly not within the purview of the phrase “other sufficient cause,” as employed in the statute above quoted. It is well settled that the application of those words is strictly controlled by the rule of noscitur a sociis, and, accordingly, that the other sufficient cause must be of the same or like nature with the causes particularly specified. In the Matter of Hawley, 100 N.Y., 206; In the Matter of Tilden, 98 id., 434: In the Matter of Kranz, 41 Hun, 463; 3 St. Rep., 297.

. It seerns very clear that neither the allegations nor the proofs of the moving party in this case disclose any ground for the opening of this decree 'which are at all of the nature of fraud, newly discovered evidence or clerical error. The provision complained of was not based upon evidence adduced before the surrogate, but upon an agreement between the parties which was-arrived at in the course of negotiations extending over a period of many months in which the respondents here were fully represented. They had the fullest opportunity to inspect the draft decree before it was entered, and there is really no reason to suppose that they would have objected to the provision in question if ■ they had so inspected it, since their objection now made is not to the terms of the provision as made, but to its possible effect upon the award of commissions in the future. In short we think it must be said that the error complained of, if any was committed, was the result of inadvertence, merely, on the part of the attorneys for the representative of Briggs, and was not within the provisions of the statute which confers upon the surrogate the power to open and vacate or modify a decree of his court.

For the reasons stated we are of the opinion that it was error to grant the order appealed from, and that the same must be reversed.

Order of the surrogate of Cayuga county, appealed from, reversed, with ten dollars costs and disbursements, and the application to open the decree denied.

Lewis, Haight and Bradléy, JJ., concur.


author: Andrews, Ch. J.

text:
    The People, Resp’ts, v. George Albow, App’lt.

      (Court of Appeals,

      Filed November 28, 1893.)

    1. Indictment—Sufficiency.
    The principal fact must be charged in the indictment. It is not sufficient to allege the facts from which an inference of the principal fact may be drawn, without charging the principal fact.
    3. Criminal law—Green goods—Penal Code, § 527.
    The selling or offering to sell counterfeit money or tokens of value, or what purports to he such, or the aiding or abetting any scheme or device having for its purpose the sale or the putting in circulation of counterfeit money or tokens, or what purports tobe such, is the offense alone at which § 527 of the Penal Code is aimed, and it has no reference to any other frauds upon the public or individuals.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment of the Dutchess county «court of sessions, entered upon conviction of defendant for a violation of § 527 of the Penal Code, in that he aided and abetted in a green goods scheme.

      Daniel O'Connell, for app’lt; Horace D. Hufcut, for resp’ts.

       Reversing 53 St. Rep., 869.

   Andrews, Ch. J.

We think the indictment is fatally defective in that it does not allege the commission of the offense -created by § 527 of the Penal Code. The section is entitled “ Advertising Counterfeit Money,” and the purpose of the enactment was to reach the nefarious business of offering or pretending to offer for sale counterfeit money, and inducing people, by what is popularly known as the “green goods ” scheme, or similar «devices, to invest their money, receiving in return either counterfeit money, or packages purporting to contain counterfeit money, but which in fact contained blank paper, or something of like character.

The selling or offering to sell counterfeit money or tokens of value, or what purports to be such, or the aiding or abetting any scheme or device having for its purpose the sale or the putting in circulation of counterfeit money or tokens, or what purports to be such, is the gravamen of the offense. It is that offense alone at which the statute is aimed, and it has no reference to any other frauds upon the public or individuals.

The indictment alleges that the defendant aided and abetted a scheme for offering for sale or exchange “ green goods ” by means of circulars and letters, and that thereby Cassell and Hogshead were induced to come to Poughkeepsie, in this state, to deal with the defendant; that the defendant there stated to Cassell and Hogshead that he would take them to an old gentleman in Hew York, “who had one hundred thousand dollars like a one-dollar greenback, so called, being a treasury note issued by the government of the United States that defendant showed Cassell the good one-dollar note, and told him that he could exchange one hundred dollars of his money with the “ old gentleman ” for one thousand dollars of the old gentleman’s money, which was as good as the one-dollar bill shown ; that the defendant asked Cassell to go with him to the city of New York “ to get said money of the old gentleman, which said money said Albow called and designated as goods,” etc.

There is no averment in the indictment that the scheme which the defendant abetted was to sell or exchange, or to offer to sell or exchange, “ counterfeit ” money, or what purported to be counterfeit money, and there is no reference whatever in the indictment to that purpose. The offense stated in the statute is not averred. If the facts stated in the indictment were established the jury would undoubtedly infer that it was a scheme to exchange real or pretended counterfeit money for good money. But this would be an inference from the improbability that any other purpose was in the mind of the defendant. .A criminal charge may be and often is supported by inferences from facts which imply the existence of the principal facts constituting the offense. But the principal fact must be charged in the indictment. It is not sufficient to allege the facts from which an inference of the principal fact may be drawn, without charging the principal fact.

The settled rule of criminal pleadings requires that all the elements which enter into the definition of an offense must be stated in the indictment. The strictness which formerly prevailed in respect to unessential matters in indictments, which often defeated the ends of justice, has been properly relaxed; But the rule that the offense must'be charged in plain and intelligible language, and that the indictment must set forth all the essential elements of the crime, is and ought to be preserved alike for the protection of the accused arid in the interest of the certain and orderly administration of the criminal law. It was said by Mr. Justice Field, in United States v. Hess, 124 U. S., 483, in the case of an indictment'-under a statute of the United States for a fraudulent useof the mails, where essential facts were not averred, “no-essential element of the crime can be omitted without- destroying the whole pleading. The omission cannot be supplied by intendment or implication, and the charge must be made directly and not inf eren tially, or by way of recital.” This is a sound exposition of the principle governing criminal pleadings, which was disregarded in framing the indictment in the present case.

For the reason that the indictment does not charge the offense described in the statute, the conviction should be reversed.

Judgment reversed.

All concur.


author: Earl, J.

text:
    James K. Ford et al., Adm’rs, App’lts, v. Charles O. Livingston et al., Resp’ts.

      (Court of Appeals,

      Filed November 28, 1893.)

    1. Lunatics—Proceeds of sale of real -estate remain real estate AND PASS TO THE HEIRS.
    Honeys paid "by an elevated railroad company for a conveyance of the interests of a lunatic in the street in front of his property is paid for an interest in real estate, and retain the character of real estate, and as such pass to the heirs of the lunatic on his death.
    3. Same.
    Whether the conveyance of such interest is valid or void, the next of kin of the lunatic have no right to the money, as, in case of its being void, the title to the real estate and easements would pass to the heirs and the committee would hold the money in trust for the railroad company.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment of special term in favor of defendants.

      Henry A. Forster, for app’lts; William E. Wyatt, for resp’ts.
   Earl, J.

Benjamin Page died in February, 1892. For several years before his death, and to the time of his death, he was a lunatic, and owned real estate abutting on the elevated road in the city of New York. In 1876 Stephen H. Olin was appointed the committee of his person and estate, and continued such until the time of the lunatic’s death. In 1888 Olin commenced an action against the elevated railway company to restrain it from maintaining and operating its road in front of the real estate of the lunatic, and he recovered a judgment restaining the railroad from operating its road in front of the real estate, unless it should tender to Olin, as such committee, the sum of $4,000, with interest thereon, and upon such tender receive from him a deed or release of all the interest, property, rights and easements of Olin and the lunatic in the street in front of the real estate taken by the railroad company by the erection and operation of the road. In January, 1892, upon the petition of Olin, an order was made by the court of common pleas in the city of New York, entitled “In the Matter of the Application of Stephen H. Olin as committee of the person and estate of Benjamin Page, a lunatic, for leave to sell certain real estate,” authorizing and directing the committee to execute and deliver to the railroad company a conveyance of all the interest, property and rights in and to the street in front of the real estate taken by the erection and operation of the railroad, upon payment to him of $4,000 therefor. Thereafter, in compliance with the judgment against the railroad company, and of the order just mentioned, Olin executed and delivered to the railroad company the deed, and received from it the sum of $4,000. A month later the lunatic died intestate, unmarried and leaving no descendants, and the real estate mentioned descended to his heirs. The plaintiffs were appointed administrators of his estate, and as such demanded of Olin the money thus paid to him, and.upon his refusal to pay the money to them they commenced an action against him to recover the same. Upon his motion the money was paid into court, and the defendants, the heirs of the lunatic, were substituted as defendants in his place, and the action was continued against them. The next of kin and the heirs of the lunatic were not the same persons: The plaintiffs claimed the money as personal estate for the next of kin, and the defendants claimed that it retained the character of real estate, and passed and belonged to them as heirs. The court below held that it belonged to the defendants as heirs, and this controversy between the next of kin and heirs is now to be finally determined.

We think it cannot be questioned, under the decisions of this court, that this money was paid for an interest in real estate. Newman v. Elevated Railroad Co., 118 N. Y., 621; 30 St. Rep., 36; Kernochan v. Same, 128 N. Y., 559; 41 St. Rep., 110; Mitchell v. Same, 134 N. Y., 11; 45 St. Rep., 318; Sperb v. Same, 137 N. Y., 155; 50 St. Rep., 204. By the deed to it, assuming it to be valid and effectual, it acquired all the property interests of the lunatic in the street, with the right, by the maintenance and operation of its road, to inflict permanent.damage to his abutting real estate, thus diminishing the value of the inheritance, and thus a portion of the lunatic’s real estate was converted into money. The conveyance was really under the order of the court to carry into effect the judgment in the action commenced by the committee against the railroad company, and under such a conveyance, assuming it to be valid, the railroad company obtained just the title it would have had if it had taken the real estate by condemnation proceedings. American Bank Note Company v. Elevated Railroad Co., 129 N. Y. 254; 41 St. Rep., 531. If the $4,000 was more than the value of the property rights conveyed, that is a matter which does not concern these plaintiffs.

This money retained the character of real estate. By the act, chapter 417 of the Laws of 1864, provision was made for the sale -of the real estate of the lunatic which was in the hands of his committee, and it was provided that the proceeds should retain the character of real estate. This provision was re-enacted in 1874, Laws of that year, chap. 446, title 2, § 14, and it is embodied in the Code, § 2359.

But the claim is made by the plaintiffs that the proceedings instituted by the committee for the sale of this real estate were invalid and ineffectual because they did not conform to the provisions of the Code on the subject. The answer to this is that the plaintiffs are not in a position to make the objection. The money was paid for the conveyance of the real estate. The heirs, the only persons interested in the real estate, make nonobjection, but, by claiming the proceeds, they ratify and confirm the proceedings, and by taking the proceeds they would be estopped from denying their validity. If the conveyance is ineffectual to convey a valid title, the railroad company may still compel a proper and sufficient conveyance.

But we may take a broader view of this case. ' We may assume that the conveyance of the committee to the railroad company was made without any authority of law, because the provisions of- the Code regulating the sale of the lands of lunatics were not complied with, and that it was and remains utterly void. Nevertheless, the money was paid to him for this real estate, and if his proceedings for the sale were" void and inoperative then he held the money in trust for the railroad company, and to and for its use, and it had the right to reclaim it at any time, and the plaintiffs had no interest whatever in it, and no right to interfere with it; and they cannot complain of the judgment awarding it to the •defendants. In that event the title to the real estate abutting on the street with the appurtenant easements passed unimpaired to the defendants, and if they take this money then they can be compelled to give an effective conveyance of the real estate. Hence, whether the conveyance was void or valid, in either event the plaintiffs have no right to this money, and, therefore, the judgment should be affirmed, with costs.

All concur.

       Affirming 54 St. Rep., 164.