author: Follett, J.

text:
    Mary D. Hatch et al., as Executors, etc., App’lts, v. Fourth National Bank of the City of New York et al., Respt’s.

      (Supreme Court, General Term, First Department,

      Filed December, 14, 1894.)

    Banks—Deposits.
    A bank, in which money acquired by pledging the property of another is deposited, may apply it to the debts of the depositor, as against the owner of the pledged property.
    Appeal from a judgment dismissing the complaint.
    The defendants George H. Mills, William P. Bobeson, and Albert H. Smith, for some time before November 15, 1890, were partners under the name of Mills, Bobeson & Smith, and were engaged in business as bankers and brokers. The defendants A. Morton Ferris, William A. Kimball, and Floyd Ferris were and are bankers and brokers under the firm name of A. M. Ferris & Kimball. On November 14, 1890, Mary D. Sanford owned 100 shares of the Adams Express Company, then worth $15,000, held under a certificate issued to her, which on that day. she sealed in an envelope, and deposited with Mills, Bobeson & Smith, to be safely kept by them until November 17, 1890. Hpon receiving the certificate, Albert H. Smith, without the knowledge or consent of the plaintiff, or any of his partners, openéd the envelope,, abstracted the certificate therefrom, and took the same to A. M. Ferris & Kimball, together with a certificate for 8 shares of Chicago, Cincinnati, Cleveland & St. Louis preferred stock worth 0800, which certificate he raised to 80 shares of the apparent value of $8,000. At the same time he delivered to said A. M. Ferris & Kimball two Union Pacific first mortgage bonds, of $1,000 each. Smith executed a transfer of the certificate, and pledged all of these securities with A. M. Ferris & Kimball as security for a loan of $20,000, for which sum they gave their check, payable to the order of Mills, Robeson & Smith. In the afternoon of November 14th, Smith indorsed the check in the firm name, and deposited it to the credit of the firm with the Fourth National Bank. July 2, 1890, the defendant James H. Fay owned a bond of $1,000, issued by the Mobile & Ohio Railroad Company, which he placed in an envelope on which his name was indorsed, and delivered it to Mills, Robeson & Smith for safe keeping, which said firm safely kept until November 14, 1890, when the defendant Albert H. Smith feloniously took the bond from the envelope and delivered it to the firm of H. L. Hotchkiss & Co. as the security for the payment of a loan for $10,000, for which sum Mills, Robeson & Smith received the check of Hotchkiss & Co. This check was also indorsed by Mills, Robeson & Smith, and November 14, 1890, was deposited with the Fourth National Bank. On the 7th of November, 1890, Fay was the owner of a bond for $1,000, issued by the Chicago, Burlington & Quincy Railroad Company, which had been left by him with Mills, Robeson & Smith for safekeeping; and on the date mentioned they pledged it with the Fourth National Bank as collateral security for the loan of $50,000 hereinafter described. On November 15th, Fay delivered to Mills, Robeson & Smith a check, payable to his order, for $400 to be collected for his account which the firm on that day deposited to its credit with the Fourth National Bank. Prior to November 7, 1890, the defendant Georgiana L. Crabb was the owner of 100 shares of the London & New York Investment Company, and of 5 bonds issued by the International & Great Northern Railroad Company, for $1,000 each, which she had deposited for safe-keeping with Mills, Robeson & Smith, who wrongfully, on the 7th of November, 1890, pledged them to the Fourth National Bank as collateral security for the loan of $50,000 hereinafter mentioned. At the close of business of November 13, 1890, Mills, Robeson & Smith had to their credit in the Fourth National Bank $20,003.43, and on the day following they deposited to the credit of said account $266,642.88, making a total deposit of $286,646.31. Against this the firm drew checks, which were paid, to the amount of $256,327.90, leaving $30,-318.41 to the credit of the firm at the close of business November 14, 1890. November 15, 1890, the firm deposited to the credit of said account $1,774.50, making a total of $32,092.91. On that day the bank paid checks of said firm amounting to $15,772.14, leaving a credit to the firm of $16,320.77 at the close of business November 15th; and on the following day the bank collected a check for $200, which was also passed to the credit of the firm. Mills, Robeson & Smith had for some time been a customer of the Fourth National Bank. On the 17th of April, 1890, they borrowed of said bank $50,000, as security for which they delivered a note, of which the following is a copy:

      “ $50,000. « Hew York, April 17, 1890.
    “ On demand, for value received, the undersigned promise to pay to the Fourth Hational Bank of the City of Hew York, or order, at its banking office in Hew York City, is funds current at the Hew York Clearing House, with interest from the date hereof, at the rate of five per cent, per annum, fifty thousand dollars; having deposited with the said bank, as collateral security for the payment of this and any other liability or liabilities of the undersigned to the said bank, due or to become due, or which may hereafter be contracted or existing, the following property, viz: As per mem. on envelope of this date, of an estimated market value, of $61,600. And the undersigned agree to deliver to the said bank additional securities, to its satisfaction, should the market value of the said securities, as a whole, suffer a decline of five per centum, and also hereby give to the said bank a lien for the amount of all the said liabilities upon all the property or securities given unto or left in the possession of the said bank by the undersigned, and also upon any balance of the deposit account of -of the undersigned with the said bank. On the nonperformance of the promise, or upon the nonpayment of any of the liabilities above mentioned, or upon the failure of the undersigned forthwith, with or without notice, to furnish satisfactory additional securities in case of decline as aforesaid, then, and in either such case, full power and authority are hereby given, to said bank to sell assign, and deliver the whole of the said securities, or any part thereof, or any substitutes therefor, or any additions thereto, or any other securities dr property, given unto or left in the possession of the said bank by the undersigned, for safe-keeping or otherwise, at .any brokers board or at public or private sale, at the option of the said bank or its president or cashier, without either advertisement or notice, which are hereby expressly waived. If such securities or property are sold at public sale, the said bank may itself purchase the whole or any part thereof, free from any right of redemption on the part of the undersigned, which is hereby waived and released. In case of sale for any cause, after deducting all costs and expenses of every kind for collection, sale, or delivery, the said bank may apply the residue of the proceeds of the sale or sales so made to pay one or more or all of the said liabilities to the said bank, as it or its president or cashier shall deem proper, whether then due or not due, making proper rebate for interest on liabilities not then due, and returning the overplus, if any, to the undersigned, who agree to be and remain liable to the said bank for any deficiency arising upon such such sale or sales.
    * The undersigned do hereby authorize and empower the said bank, at its option, at any time, to appropriate and apply to the payment and extinguishment of any of the above-named obligations or liabilities, whether now existing or hereafter contracted, any and all moneys now or hereafter in the hands of the said bank, on deposit or otherwise, to the credit of or belonging to the undersigned, whether the said obligations or liabilities are then due or not due.
    “ Mills, Robeson & Smith,”

      Among the securities deposited as collateral to the said note were the five International & Great Northern bonds, of the value of $5,000, which were the property of Georgiana L. Crabb, and a bond of $1,000 issued by the Chicago, Burlington & Quincy Railroad Company, which was the property of James H. Fay. On the 7th of November, 1890, Mills, Robeson & Smith borrowed $5,000 of said bank, giving a note which is a copy of the one hereinbefore set forth, except as to date, amount, rate of interest,, and securities pledged. With this note there were pledged 100 shares of the London & New York Investment Company, which were the property of Georgiana L. Crabb. On the 15th of November, 1890, Mills, Robeson & Smith made a general assignment, for the benefit of creditors to defendant William Watson, they having for several months previous thereto been insolvent. On the 17th of November, 1890, the Fourth National Bank demanded of Mills, Robeson & Smith that they pay their aforesaid notes,— one for $50,000, and the other for $5,000,—together with the interest due upon them, which they failed to do, and on the same-day the bank charged the amount due on them to the account of Mills, Robeson" & Smith. The demand was made and the note charged before .the bank had notice or knowledge that any of the-parties to this action, other • than Mills, Robeson & Smith and Watson, their assignee, claimed to have or had any interest in the securities, or in the amount to the credit of said firm. Afterwards, and before December 5, 1890, the bank sold all of the securities, pledged as security for said two notes, except the bond of the Chicago, Burlington & Quincy Railroad Company, owned by James H. Fay. From the sale of the securities pledged, the bank realized $41,289.38, which added to $16,320.77, the balance to the credit of the .account of Mills, Robeson & Smith, and the check for $200, which was collected November 16, 1890, amounts to $57,-810.15. After deducting the amount due on said two notes, there remained in the hands of the bank, to the credit of the account, $2,364.19, and the bond issued by the Chicago, Burlington &■ Quincy Railroad Company. Among the securities sold by the bank were 100 shares of the London & New York Investment Company and five bonds of the International & Great Northern . Railroad Company, which belonged to Georgiana L. Crabb. By the judgment she was awarded $2,364.19, the amount standing to the credit of the account,, and she does not appeal. The judgment also awarded to James H. Fay the bond for $1,000, issued by the Chicago, Burlington & Quincy Railroad Company; but it did not award him $630, the value of the bond of the Mobile & Ohio Railroad Company pledged by Mills, Robeson & Smith with H. L. Hotchkiss & Co., or for the check for $400 deposited by him with Mills, Robeson & Smith November 15; 1890, and by them, on the same day, deposited with the bank. Fay appeals from that part of the judgment denying his claim to recover these two items. It was also adjudged that the plaintiffs were not entitled to recover any sum, as against the bank, and the complaint was dismissed, with costs.
    The plaintiffs appeal from the whole of the judgment.

      George W. Wingate, for app’lts; David Wilcox, for resp’t Fourth National Bank ; Henry H. Man, for resp’t Georgiana L. Crabb.
   Follett, J.

The appeal of the plaintiffs will be first considered, and it will be convenient to separate the facts relating to their claims from the facts relating to the claim of Fay, the other appellant. November 15, 1890, the plaintiffs’ intestate was the owner of 100 shares of the Adams Express Company, which were worth $15,000, for which she held a certificate which she sealed in an envelope, and on that day delivered to Mills, Bobeson & Smith for safe-keeping. On the same day Mills, Bobeson & Smith borrowed $20,000 of A. M. Ferris & Kimball, receiving their check for that amount, which was on that day deposited with the Fourth National Bank, and credited to the account of Mills, Bobeson & Smith. Smith, one of the members of the firm, unlawfully opened the envelope in which the intestate’s certificate was sealed, abstracted it, and feloniously transferred it, with eight preferred shares of the Chicago, Cincinnati, Cleveland & St. Louis Bailroad Company, to A. M. Ferris & Kimball, as collateral security for the loan, who took the securities in good faith, and without notice of the rights of the plaintiffs’ intestate ; and the bank received the check in due course of business, and in good faith, and without notice that the loan had been obtained by the felonious acts of Smith. It should be borne in mind that Mills, Bobeson & Smith did not assume to sell to A. M. Ferris & Kimball the shares in the Adams Express Company, and no part of the $20,000 loaned by A. M. Ferris & Kimball to Mills, Bobeson & Smith was derived from the shares, but from the note of the borrowers, secured in part by the shares. The shares were not transferred to the bank, nor did any money derived from a sale of them pass to the bank; and we know of no authority for the position that a bank receiving in gook faith a check or money under such circumstances, which has been applied in payment of its claims against the person from whom received, can be made liable to refund the amount to the owner of the security wrongfully pledged as collateral to the person or firm loaning the money to the wrongdoer. The right of the bank is the same as it would have been had Mills, Bobeson & Smith received payment of the check for $20,000 from the drawee, and afterwards deposited the money with the bank. The authorities supporting the right of the bank to the avails of this check are clear and numerous. Justh v. Nat. Bank, 56 N. Y. 478 ; Stephens v. Board of Education, 79 N. Y. 183 ; Goshen Nat. Bank v. State, 141 N. Y. 379 ; 57 St. Rep. 597 ; Straus v. Tradesmen's Nat. Bank, 122 N. Y. 379; 33 St. Rep. 638; School Dist. in Greenfield v. First Nat. Bank, 102 Muss. 174. Hutchinson v. President, etc., 60 St. Rep. 612, is quite different from the case at bar. In that case the plaintiff held a bill payable to his order, which he indorsed, “Pay to W. L. Patton & Co., or order,”and delivered it to the indorsee for collection only, who indorsed it, “ For deposit to the credit of W. L. Patton & Co.,” and delivered it to the defendant, where they kept an account. The defendant refused to credit the draft to W. L. Patton & Co., but received it for collection. On the next day, W. L. Patton & Co. made a general assignment, and- on the day-following the assignment the defendant collected the draft,, and. then credited the avails thereof to the account of W. L. Patton <Se Go. The Manhattan Company never became owner of the bill, for it refused to credit it, but received it for collection only, and-before-it was collected W. L. Patton & Co. made an assignment for the-benefit of creditors; and it was held that the lien given the- Manhattan Company by W. L. Patton & Co. upon all securities given into or left in their possession by W. L. Patton & Co. did not give-the bank a lien upon the draft received for collection only. Had" the Manhattan Company credited W. L. Patton & Co. with the-draft on the 4th of May, when delivered, an entirely different question would have been presented. It seems quite unnecessary to distinguish from this case those cases in which plaintiffs defrauded-of money or securities are able to trace the money or the avails of' the securities into an account or into property owned by the wrongdoer or his assignee for the benefit of creditors, or into the hands of one who has not received the money or the avails of the securities in good faith and for value. It seems to us clear that the plaintiffs failed to establish any right to recover from the bank any part of the moneys which it had applied in payment of the indebtedness of Mills, Robeson & Smith to it, and the rule that defeats-the plaintiffs’ action is fatal to the claim of James H. Fay.

The question now arises who has the better right—the plaintiffs or Georgiana L. Crabb—to the balance ($2,364.19) standing to the credit of Mills, Robeson & Smith ? As before stated, none of the avails of the shares of the plaintiffs’ intestate were traced to the bank, for her shares were not sold by the wrongdoers. On the contrary, the securities of Georgiana L. Crabb were pledged by the wrongdoers to the bank, which securities were,sold by it after the failure of Mills, Robeson & Smith, and the avails were credited to their account. She directly traced the avails of her securities into the possession of the bank, and into the account. As between her and the plaintiffs, she has established the right to the balance standing to the credit of the firm.

The judgment should-be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Cullen, J.

license: Public Domain

text:
    Emil Schopen, Resp’t, v. Homer R. Baldwin, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 10, 1894.)

    Physicians—Seevices.
    Under an answer putting in issue the value of the services of a physician, it is competent to prove unskillful treatment, as affecting such value.
    Appeal from a judgment, entered on a verdict in favor of plaintiff.

      Carlton B. Pierce, for app’lt; J. Hampden Dougherty, for resp’t.
   Cullen, J.

This is an appeal from a judgment for the plaintiff entered on the verdict of the jury. The action is brought by a physician to recover for professional services, and the complaint presents the claim in a double aspect, both for an agreed price, and also on a quantum meruit. The answer admits the services, but denies a special contract as to price, and also denies the value alleged ; averring that the services were not worth more than the sum of $1,000, more than which sum had been paid to the plaintiff. The court submitted the claim to a jury in both aspects, and, as the jury found a verdict for a sum less than that claimed, it may be assumed that the plaintiff recovered on a quantum meruit.

There is but one substantial objection raised on this appeal. In the cross-examination of the plaintiff, he was asked whether the bones of the patient’s forearm still protruded. Objection being made to the question, the counsel for defendant stated that he would show that the plaintiff’s treatment of the arm was not proper. The court held that there was no defense of the kind pleaded, arid excluded the evidence. The question is therefore presented whether, under an answer putting in issue the value of the services of the physician, it is competent to prove unskillful treatment, as affecting such value. It seems at one time, in this state, to have been doubtful whether malpractice could be proved under the general issue. In Runyan v. Nichols, 11 Johns. 546, Judge Van Hess first thought that the evidence was inadmissible under that plea, but on reflection doubted the correctness of his opinion, and the decision finally proceeded on the ground that notice should have been given. In Sill v. Rood, 15 Johns. 230, the case of Runyan v. Nichols was distinguished. In Gleason v. Clark, 9 Cow. 57, it was held that malpractice, if given in evidence to entirely defeat the plaintiff’s claim, was admissible under the general issue without notice; if merely to reduce the claim, then notice should be given. In Blair v. Bartlett, 75 N. Y. 150, Judge Folger states the tenor of these authorities, without declaring the rule under the Code, as the case did not involve the question. In Chatfield v. Simonson, 92 N. Y. 209, it was held that proof of misconduct of the plaintiff as attorney for the defendant was admissible under a general denial as a bar to the action. The result of these authorities is that, had the defendant denied any value to the plaintiff’s services, the evidence would have been clearly admissible. But the defendant admitted in his answer that the services were valuable. Does that concession necessarily bar any claim of improper treatment or malpractice ? It is settled law that a recovery by a physician for services bars an action by the patient for malpractice. Blair v. Bartlett, supra; Gates v. Preston, 41 N. Y. 113 ; Bellinger v. Craigue, 31 Barb. 534. In these cases are to be found statements that the recovery to any extent is inconsistent with malpractice. It is said by Judge Folger in Blair v. Bartlett, in speaking of the effect of a recovery for services, as establishing their value:

“But, if of value, they could not have been useless; and, if of use, they could not have been harmful; and, if not harmful, there could not have been mala praxis in the performance of them."

If this is to be considered as asserting that any malpractice is inconsistent with the recovery .for any amount, it can hardly be a correct exposition of the. law. If there can be no malpractice that will merely reduce the recovery, not defeat it, why the old rule of pleading, that notice of such malpractice must be given with a plea .of the general issues ? The contract of a physicians is like other contracts. It is usually, an entire contract, but so are many others. A recovery on ‘the contract necessarily bars a cross action for its nonperformance. This is the case with all entire contracts, except where there are independent covenants,' such as warranties, which survive the contract. Still in all suits on entire contracts the defendant may recoup damages for unskillful performance. If the plaintiff had relied only on the specific contract set forth in the complaint, the issues would have then been limited to the existence of a contract and its performance, but he also claimed to recover on a quantum, meruit;, that is, the Sum that his services were fairly and reasonably worth. The defendant denied that the services were of the value claimed, and this raised an issue as to such value. Under this issue it would seem competent for the defendant to show that the services were unskillfully performed, as well as for the plaintiff to show that they displayed great skill. These facts would affect the value of the services. Such evidence would be competent in other actions on a quantum meruit, either for services or goods sold (see note to Runyan v. Nichols, supra); and, unless we can distinguish actions by physicians or lawyers from other actions for services, the same rule must obtain. The judgment and order denying a new trial should-be reversed, and a new trial ordered ; costs to abide event.

A11 concur.


author: Gray, J.

text:
    Agnes Mickee, as Administratrix, etc., App’lt, v. Walter A. Wood Mowing and Reaping Machine Company, Resp’t.

      (Court of Appeals,

      Filed February 5, 1895.)

    !.■ Appeal—Court of Appeals.
    Where> Upon an appeal from an order denying a motion for a new trial, and also from a judgment in favor of plaintiff entered on a verdict, the general term reverses the order and judgment and grants a new trial, stating in'the order "that the reversal was “ for errors of law only, not for errors of fact,” the-order of-the general term is not reviewable in the court of appeals.
    2. Same. ■
    In order that a defeated party at the general term, in such case, shall be heard upon án appeal in the court of appeals, it must appear in the order i of the general term that the order, denying the new trial, was passed upon í and disposed of by an affirmance, or the appeal therefrom dismissed.
    Appeal.from judgment of- the general term of the supreme court in the third judicial department, entered upon an order, which affirmed an order denying a motion for a new trial, reversed a judgment. in favor of plaintiff entered upon a verdict, and granted a new trial..
    This was an action of negligence, in which the jury rendered a verdict for the plaintiff for $5,000. The defendant moved for a new trial upon the judge’s minutes, which was denied. The defendant appealed from the order denying a new trial and from the judgment entered in favor of the plaintiff upon the verdict The ..general term ordered “ that for errors of law only and not for errors ■of fact, said order and judgment be, and the same hereby are, in all things reversed and that a new trial be granted herein.” Judgment was also entered upon the general term order. The plaintiff then appealed to this court from the order of the general term and from the judgment entered thereupon and stipulated for judgment absolute in the event of the affirmance of the order appealed from.

      Olin A. Martin, for app’lt; G. B. Wellington, for resp’t.

       See 60 St. Hep. 283.

   Gray, J.

The is quite clear that the order of the general term is not appealable. The defendant by its appeal to the general term was entitled to have that court pass upon the facts and dispose of the appeal from the order denying a new trial upon the minutes. The statement in the order of the general term, that the reversal was for errors of law only and not for any error of fact, does not show that the court had considered the facts. The case falls within the authority of Harris v. Burdett, 73 N. Y. 136; where the appeal to the general term had been, as in this case, from the order denying a new trial and also from the judgment, in a case tried before a jury. There the general term reversed the judgment and ordered a new trial. Rapallo, J., delivering the opinion of the court, said: “ Assuming that the court did actually grant the new trial on a question of law, and that this can be made conclusively to appear; yet, if the case came before the general term in such form, and the character of the evidence was such, that a new trial might have been granted on questions of fact, the order is not appealable to this court and should not be. To hold otherwise might result in entirely depriving the party, against whom the judgment was rendered, of the review at general .term upon the facts, to which the law entitles him.” The learned judge goes on to illustrate the result, if this court should differ with the general term upon the ■question of law. He says : “ If we should reverse the order, the ■consequence would be an affirmance of the judgment entered on the verdict, and in that event the defendants would have a final judgment against them * * * without having any review of the verdict by the general term upon the evidence, notwithstanding that the law gave them the right to such review, and that they had. taken all the steps required to obtain it. * * * By the appeal from the order denying the motion for a new trial on the minutes, the questions of fact were brought legitimately before the general term, and it must be presumed that it would have passed upon them, had it not been of opinion that the point of law required a reversal of the judgment.”

The doctrine in Harris v. Burdett has been continuously adhered to in the decisions of this court and was subject to review as late as in Chapman v. Comstock, 134 N. Y. 509; 47 St. Rep. 650, where Judge Haight, in the second division of this court, speaking of the result of a reversal by the general term and the consequent affirmance of the judgment of the trial court, said: “ The defendant would have a judgment against him, entered upon a verdict and affirmed in the court of last resort, without having his question considered as to whether the verdict was against the weight of evidence.”

In order that a defeated party at the general term, in a case like the present one, shall be heard upon 'an appeal here, it must appear in the order of the general term that the order denying a new trial was passed upon and disposed of by an affirmance, or the appeal therefrom dismissed, as the case might be; thus concluding the appellant upon all questions, save those of law, raised by the exceptions in the case.

All concur, except Peckham, J., not sitting

Appeal dismissed.


author: Gray,

text:
    The People ex rel. Edward M. Goring, Resp’t, v. The President and Board of Trustees of the Village of Wappingers Falls, App’lt.

      (Court of Appeals,

      Filed February 5, 1895.)

    1. Election—Ballots.
    ■ If the official, charged with, the duty, neglects to print upon the official ballot the name of an office which, under the law, is to be filled at the election for which the official ballots were prepared, a qualified voter may write or paste on the proper official ballot such office and the name of any person to fill it whom the voter desires.
    2. Same—Mandamus.
    Where, under such circumstances, the relator received forty-four votes for police justice, which was the whole number of votes cast for such office, a writ of peremptory mandamus was properly granted, requiring the board of trustees to recognize him as a police justice, but not to fix the salary of the office.
    Appeal from an order of the general term of the supreme court in the. second judicial department, which, modified and affirmed as modified an order of special term directing a peremptory mandamus to issue commanding defendant, among other things, to recognize the relator as police justice of the village of Wappingers Falls.

      Frederick Barnard, for app’lt; Bernard J. Tinney, for resp’t.

      Affirming, 60 St. Rep. 577.

   Gray,

January, 1890, the board of trustees of the village of Wappingers Falls, acting under the authority conferred by § 17 of chapter 291 of the Laws of 1870, being the general act for the incorporation of villages,'passed a resolution that a police justice should be elected at the next village election to occur on the third Tuesday of March, 1890, and every four years thereafter. A police justice was, accordingly, elected in March, 1890, for the full term of four years. After holding his office for a short time he resigned and the vacancy remained unfilled for the balance of the term for which he had been elected. At the annual election held on the third Tuesday of March, 1894, the respondent, Goring, received forty-four votes for the office of police justice; being the whole number of votes cast for that office. The trustees of the village have, however, refused to recognize the election of the respondent, or to make proper provision for the administration of the office and because of their action, or inaction, he made application for a peremptory writ of mandamus; which should command and require them to provide necessary room, blanks, books, etc., and to determine the annual salary; The trustees opposed-the granting of the writ, upon the ground that no notice of the election of a police justice was given in the spring of 1894 and that the official ballots of neither party contained the name of the office, or of any candidate to be voted therefor.

The court at special term granted the application and upon appeal the general term affirmed the order of the special term; except that it struck out so much of the order as directed the trustees of the village to fix the salary of the office; holding that that matter was one within their discretion.

The only question upon this, appeal is as to the correctness of the order below in granting the peremptory writ, which, in effect, commanded the appellants to recognize the relator as a police justice.

The position of the appellants is that, because the village trustees, in giving notice for the election of village officers, did not specify the office of police justice and because the official ballots printed by the village clerk did not contain the name of the office-of police justice, no votes could be received or counted for that office. This position is rested upon certain language in the Election Law of 1892 (chapter 680). Section"104 provides'that, “the name of any person for whom the voter desires to vote for any office named on the official ballot may be written on the official ballot which the voter proposes to vote; or a paster containing one or more such names or offices may be pasted thereon." The effect of that provision, it is'said, is to confine the voter to writing,, or pasting, the name of any person, for whom he desire to vote, to-an office which is named in the official ballot. I do not think that, the legislature intended any such result to follow. If the clerk, or other officer, charged with the duty, neglect to print upon the official ballot the name of an office, which, under the law, was to. be filled at the election for which the official ballots were prepared, the qualified voter will not, thereby, be deprived of his constitutional right to vote for any person he chooses for such an office. In the previous Ballot Beform Law of 1890 (chapter 262), § 25 provided that, “ the voter may write or paste upon his ballot the name of any person for whom he desires to vote for any office.” With reference to that provision of law we had occasion to say, lately, in People ex rel. Bradley v. Shaw, 133 N. Y. 493; 45 St. Rep. 866, that to hold that a voter could not vote for any candidate whom he chose, notwithstanding that his candidate failed to receive a nomination by a political party, etc., pursuant to the requirements of a certain provision of that law, would be to disfranchise, or to disqualify the citizen as a voter, or a candidate, and would affect the law with the taint of unconstitutionality in such respects.

In the present case, whether the omission of the name of the office of police justice was due to forgetfulness, or to intention, is quite immaterial. Section 82 of the Election Law made it the duty of the clerk to furnish official ballots containing the names of all the offices to be'filled at the election. The non-performance -of that duty, with respect to the office of police justice, could not affect the fact that such ¿n office, under the law, was one to be filled at the election to be held pursuant to official notice. Section 104, notwithstanding an apparent limitation in its language as to the offices which might be voted for, must be construed as authorizing the voter to write, or paste, on the proper official ballot the •office, which the law required to be filled at the election, and the name of any person to fill it whom the voter desires. In contemplation of law, the official ballot prepared by the voter is deemed to contain the names of all the offices to be filled at the election and if, by omission, clerical or otherwise, an office is not named upon it, the voter is warranted in writing, or pasting, upon it the name of the office and the person whom he desires to vote for as the incumbent thereof. To construe the law otherwise would be to affect its validity. The'Constitution confers upon -every citizen, meeting the requirements specified therein, the right to vote at elections for all offices that are elective by the people and there is no power in the legislature to take away the right so •conferred. The legislature may prescribe regulations for ascertaining the citizens who.shall be entitled to exercise the right of suffrage, for that power is given to it by the Constitution. In prescribing regulations for that purpose, or in respect to voting by ballot, it does so subject to and, presumably, in furtherance of the constitutional right and its enactments are to be construed in the broadest spirit of securing to all citizens, possessing the necessary •qualifications, the right freely to cast their ballots for offices to be filled by election and the right to have those ballots, when cast in •compliance with the law, received and fairly counted. Legislation which fails in such respects and prevents the full exercise of the right as secured by the Constitution is invalid.

The order appealed from should be affirmed, with costs.

All concur.

Order affirmed.


text:
    Walter Carter, as Executor, etc., Resp’t, v. The Board of Education of the Presbyterian, Church of the United States of America et al., Resp’ts.

      (Court of Appeals,

      Filed February 5, 1895.)

    Will—Construction.
    The words “ after the payment Of the foregoing bequests,” in a residuary clause will be deemed to circumscribe and confine the residue, so that a residuary legatee will not be entitled to any benefit accruingfrom lapses, only when such an intention is fairly warranted by the rest of the will.
    Appeal from judgment of the general term of the supreme court in the first judicial department, entered upon an order, which modified, and affirmed as modified, a judgment entered upon a decision of the court on trial at special term.

      John Proctor Clarke, for app’lts, def’ts; John E. Parsons, for resp’ts, def’ts ; Delos McCurdy, for'resp’t, pl’ff.

       Affirming 52 St. Rep. 672.

   Gray, J.

The testator’s will; after appointing executors, directed them to convert into money, as soon after his decease as they conveniently might, any and all property, real and personal, of which he died seized and possessed, and to pay and dispose of the proceeds thereof as thereinafter directed. He then gave and bequeathed to each of four religious corporations, connected with the Presbyterian church, in which he was a minister, the sum of $3,000 and directed his executors to divide into three equal parts “whatsoever moneys may remain in the hands of my said executors after the payment of the foregoing bequests * * * and to pay one-third thereof to the American Seamen’s Friend Society * * * one other third thereof to the Board of Church Erection Fund of the General Assembly of the Presbyterian Church in the United States of America and one-third thereof to the Board of Aid for Colleges,” etc. Two of the specific bequests to the religious corporations were declared to be invalid and their invalidity is not in question here. The appellants, however, being the next of kin of the testator, who died leaving him surviving no issue and no widow, father or mother, claim that the invalid bequests did not pass into the residuary estate, but are undisposed of by the will and, therefore, are to be distributed in accordance with the Statute of Distribution. The.argument in support of that claim is that the residuary clause is not general; but that it is specific, or circumscribed, by reason of its peculiar language. It is,, in effect, insisted that only those moneys remain in-the hands of the executors for payment to the corporations named as residuary legatees, which are ascertained after taking out the aggregate of the sums required for the payment of the four prior specific bequests.

While the words “ after the payment of the foregoing bequests,” in the residuary clause, might, in some cases, be deemed to circumscribe and confine the residue, so that a residuary legatee would not be entitled to any benefit accruing from lapses, that effect would be given to them because they would illustrate an intention which was apparent from the will. Judge Earl’s observation in Matter of Accounting of Benson, 96 N. Y. 499, are to be taken, not as laying down an absolute rule that a residuary clause is necessarily circumscribed by the insertion of such words; but as suggesting that they might evidence an intention on the part of the testator that the residue is to be confined to so much only as would remain after deducting from the estate the aggregate amount of all previous bequests. Such an intention, however, we think the rest of the will must fairly warrant, in order to override the general rule.

In the present case, it seems to us very evident that no such intention is to be gathered from the terms of this will. It is evident that, by the direction to his executors to convert all his property into money and to dispose of it as thereafter directed, he intended to create a fund and to wholly dispose of it by the subsequent provisions of the will. He did not propose to die intestate as to any part of the fund, which would result from the conversion of his estate. When he subsequently directs that “whatever moneys may remain in the hands of my said executors,, after the payment of the foregoing bequests ” are to be divided and paid out in certain proportions to certain residuary legatees, while-it is clear that he intended the specific bequests to take effect, it. is equally clear that he intended making a testamentary disposition of all of his estate and such an intention is only effectuated by carrying into the residuary estate any prior ineffectual bequests. Read in connection with the rest of the will, the words “ after the payment of the foregoing bequests ” in the residuary-clause have a wider significance than the appellants would havens attach to them. The executors are to pay the Specific bequests; from the fund; but if they are unable to pay some of them, because of their invalidity, then the moneys remaining in their hands; are so much of the fund as had not been used, or drawn upon, for the purpose of paying the specific bequests.

In Riker v. Cornwell, 113 N. Y. 115, a case where the wolds were after payment of all the legacies and carrying out all the trusts and provisions made,” it was argued that they were indicative of an intention to give only a specific residue. We held otherwise and we considered those words as words of description, rather than of exclusion and limitation. It was observed in that case, that we should not seek the intention of the will maker in particular words and phrases; but should find it by construing the provisions of the will with the aid of the context and by considering what is the entire scheme of the will.

In Lamb v. Lamb, 131 N. Y. 227 ; 43 St. Rep. 112, it was said : “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."

We think the general term below correctly held that the. void legacies passed into the residuary estate; and their judgment should be affirmed, with costs.

All concur.

Judgment affirmed.


author: Peckham,

text:
    John E. Waller, App’lt. v. The State, Resp’t. Skaneateles Paper Company, App'lt, v. Same, Resp’t.

      (Court of Appeals,

      Filed February 5, 1895.)

    1. State—Appropriation of land.
    Mere words of appropriation, unaccompanied by any act on the part of the officers of the state towards carrying such appropriation into execution and taking possession of and controlling in some form the property which is to be appropriated, do not amount to an actual and complete appropriation.

      3. Same.
    No person had any ground upon which to base an appearance before the canal appraisers and attempt to prove any permanent damage to his rights by virtue of their resolution of appropriation, until such appropriation touched him or his rights.
    Appeals from awards of the Board of Claims which dismissed the claims and awarded the claimants above named nothing for damages alleged to have been sustained by them as riparian proprietors on the canal forming the outlet to Skaneateles lake by the stoppage by the state of the flow of water from the lake through the outlet, from February 1 to April 30, 1892.
    Prior to 1843 the state had been accustomed as occasion required to use the water in the Skaneateles lake for the purpose of a feeder to the Jordan level of the Erie canal. At that time there existed a dam at the northern end of the lake and just at the outlet through which its waters ran to the Seneca river, a distance of about nine miles. Along this creek or outlet there were various mill owners, and from the place where the waters issued from the lake into the creek down to the Seneca river there was a fall of about four hundred and fifty feet, thus making a valuable water right along the line of the creek. The owners of the land and of the water privilege at the outlet of the lake were the grantees of an individual named Gibbs, who in 1816 and 1817 was the owner and in possession of the land and of the dam across the outlet, and in one of the above-named years he had obtained the consent in writing, for a valuable consideration, of a large' number of the ■owners of land on the shores of the lake, giving him the right and privilege to build and maintain a new dam at the outlet of the lake and across the same and to raise and keep up the water in the lake to the height of the water therein as it then was, which was about six feet above its natural height at the outlet. The instruments conveying these rights were recorded as conveyances of real estate, and in 1843 the title and rights of Gibbs had become vested in three individuals named David Hall, George F. Leitch and Warren Hecox. Pursuant to this license or privilege Gibbs or his grantees, prior to 1835, had constructed a stone dam at the ogtlet of the lake and across the same to a height sufficient to raise the water in the lake six feet above its natural height, and that dam remained of the same height as thus constructed until 1868, when it was re-built by the state as mentioned hereafter. Gibbs or his grantees, prior to 1842, had erected on the lands •owned by him or them immediately below the dam, mills and factories, machine shops and a tannery, all operated by the water furnished by the dam, the water for the mills being taken by races or flumes directly from the lake and discharged into the outlet thereof after passing through the. mills and then passing along down the creek to its junction with Seneca river. The head of water for these mills immediately below this dam was only about seven feet, and hence it was quite a detriment to them to have the water in the lake drawn appreciably below the height at which it could be kept by the dam; but, nevertheless, in some instances .prior to 1843 the agents of the state, using the strong arm, had gone upon the land where the dam was and opened the gates and drawn down the lake and used the waters for the purposes of supplying the level of the canal with a sufficient-quantity of water. This was done without right and subject, of course, to the claims of the individuals who were damaged by reason of this action of the authorities of the state. The state recognized its liabilities for this action of its agents, and it had, prior to 1843, on several occasions passed statutes providing for a hearing of the claims of the owners of these lands and dam, and of the mill privileges immediately below the dam, and for paying to them such damages as they had sustained by reason of these acts of the state. This action on the part of the state in taking the waters from the lake would not be detrimental to owners of lands further down the creek, because of the fact of the great fall' in the water, they having, by reason of such fall, all the force that they required, and the water passed oyer their lands on its way to the canal to be used for canal purposes, and its was only a damage to those who were so close to the dam that they required all the head which the keeping of the waters of the lake up to the height that was permitted gave them in order to profitably work their mills. This situation at the outlet of the lake was not such as commended itself to the state authorities. It was naturally thought better to control these waters by obtaining the title and interests of the dam than by allowing them to remain such owners and p'aying damages to them whenever the state used the waters for the purposes of the canal. So in 1842, at a meeting of the board of canal commissioners" held in February of that year, there was presented to that board a report of Mr. Childs, chief engineer in the employment of the state, dated January 6, 1842, which contained a plan for the improvement of Skaneateles lake and outlet as a reservoir and feeder to the Erie canal. This plan provided for a cutting ' down of the bed of the outlet below the dam and for the making of an excavation in the lake and outlet above the dam. While this report was under consideration by the commissioners a proposition was presented to the board by one of the owners of the land and dam at the outlet of said lake, and who was also the owner of a factory about one mile lower down the stream, in which he proposed to release the state from all claims for damages upon certain conditions contained in the proposal, and it was then resolved by the board that the waters of Skaneateles lake and the outlet thereof should be and the same were thereby appropriated to the- public use as a feeder to the Erie canal, and that the' plan proposed in the report of the engineer for the improvement of the lake should be adopted and measures taken for the construction of such work as would be necessary to carry into effect the object of the resolution. Bnt it was also resolved that the resolutions were not to go into effect and no work was to be commenced until this owner already mentioned should have executed and delivered a release to the state of all claims for damages; as was proposed by him. Such release was not given, and on the 27th of May, 1842, the above resolutions, adopting the plan described in the engineer’s report of January 6th, were rescinded and no subsequent proceedings were taken under them. Subsequently, and on the 6 th of September, 1842, the board of canal commissioners, after reciting that there was an insufficient supply of water for the Erie canal between certain points, and that it appeared from the report of the chief engineer in the employment of the state, bearing date January 6, 1842 (being the same report already mentioned), that the remainder of the required supply of water for that portion of the canal could be obtained from Skaneateles lake and the outlet thereof with more economy than from any other source, adopted resolutions by which it was first resolved that “ the waters of Skaneateles lake and outlet be and the same are hereby appropriated for public use for a reservoir and feeder to the Erie canal; ” and, second, “that the plan upon which it is proposed to construct such feeder, together with the surveys and estimates of expenses,” should be submitted to the canal board for their approbation pursuant to the provisions of the Eevised Statutes in that behalf. A plan, surveys, estimates, etc., were immediately submitted to the canal board for its approbation, but the canal board, instead of approving the plan, made further alterations and placed other conditions thereon, and provided generally that, prior to the construction of the work, the commissioners should make such arrangements with owners of land and of the water power as should secure the state from *all claims for damages arising from such appropriation. Nothing further was done, however, and neither the order nor directions of the canal commissioners or canal board were executed or carried out, and no proceeding or action was taken under either of those resolutions for the reason, as is stated, that the releases as required to be secured by them could not be obtained. These proceedings are given simply as a preliminary history of the case. Finally, however, on the 29th day of June, 1843, it appears that a meeting of the canal board was held, and that resolutions set forth below were adopted by it. The resolutions were prefaced by a recital that the canal commissioners had represented to the board that the supply of water to the Erie canal at this point (the Jordan level) had been found insufficient for the purposes of navigation, and that the deficiency of such supply might be obtained from Skaneateles lake at a less expense to the state than the same could be obtained elsewhere, and that the commissioners had “ caused the necessary surveys and levels to be taken, and accurate plans, drafts and maps of the contemplated improvement, together with an estimate in minute detail of the probable expense to be incurred thereby, to be made and submitted to the canal board, which estimated expense does not exceed the sum of $30,000.” The canal board then adopted the following resolutions: “1st. That the waters of the Skaneateles lake and the outlet to the same be, and they are hereby appropriated to the use of the public for a reservoir and feeder to the Erie canal. 2d. That the canal commissioner be directed to make the improvements necessary to carry the above resolutions into effect.” The plan, map and estimate of the expenses which were referred to in the above resolution by the canal board were the plan and estimate contained in a second report of Orville W. Childs, made to the canal commissioners subsequently to the report of January 6,1842, and the map was one which showed the land and water appropriated by the state and included within the blue lines at the outlet of Skaneateles lake, which map was put in evidence by the claimants, and with those exceptions no surveys, levels, drafts, maps, plans and estimates were .submitted to the canal board. This second report of the engineer refers to the first report, dated January 6,1842, and speaks of that first report as contemplating a plan which provided for the lowering of the bed of the outlet below the dam, and also for the making of an excavation into the lake above the dam. This was to be done without reducing the head and fall at the dam below what it had formerly been “or in any respect impairing the value of the hydraulic power immediately at the outlet.” But by the second plan it was proposed to obtain the supply of water for the canal when •enlarged as well as at the then present time from this source, Skaneateles lake, “and without lowering the bed of the outlet below the present dam.” The report then continued as follows: “ By individual enterprise an artificial reservoir has been made of ■Skaneateles lake ; the surface of the lake has by means of a dam across the outlet been raised about five feet above its former elevation ; by properly controlling this discharge, this depth may be held in reserve, and, with a slight excavation which will be required in the bed of the outlet above the dam, it may be drawn for the purpose of navigation, as circumstances may require, without injuring the hydraulic power on the stream below. Although the expense of appropriating the waters of the lake and outlet upon this plan, may exceed that described in the before mentioned report, yet it is believed that the supply required may be obtained with more economy from this than from any other source.” The report then contains an estimate as to the cost of this new plan, and estimates some $18,000 as damages to the owners of the hydraulic power, evidently referring to the hydraulic power “immediately at the outlet and just below the dam,” because the report says the owners on the stream below are not to be injured. By the plan contained in the first report the alteration was to be so made as not to impair the value of the hydraulic power immediately at the outlet; by the second report the value of this hydraulic power immediately at the outlet would be impaired, but provision was made for paying the damage, and at the same time the execution of the plan would be carried out toithout injuring the hydraulic power on the stream below. The plan, map and estimate of expenses which were before the canal board, and referred to as having been sent to that board by the canal commissioners, were the plan, map and estimate of expenses contained in this second report of the engineer, by carrying out which the value of the hydraulic power immediately below the dam would be impaired and the hydraulic power on the stream below would not be injured at all.

    And the map accompanying the report of the engineer and transtnitted with it to the canal board by the canal commissioners and put in evidence on this trial showed exactly when taken with this report and plan what the state proposed to take, and what work it proposed to do in order to carry out the resolution of the canal board as to appropriating the waters of Skaneateles lake and the outlet for the purposes of a feeder for the Erie canal. That plan was to take this dam. and the lands adjoining it and immediately below it, and all the mill privileges and rights of the owners, Hall, Leitch and Hecox, and to thus appropriate as against them all the waters of the lake and outlet
    The claimants in these two cases now before us had properties which were situated, the one a mile and a quarter, the other nearly three miles below this dam on the banks of this creek, and the map which was filed did not embrace any portion of their land, nor did it extend beyond the lands owned by the three owners above named. Immediately upon the passage of this resolution appropriating these waters the state took possession of the lands of the owners above named, including the dam, and placed gate tenders who acted under the orders of the agents of the state in the use of such gates and in the supplying of the waters through them. Soon after taking possession of this dam and property adjoining by the state, the three owners of the lands thus taken filed their claims with the canal appraisers to obtain payment for the appropriation of their property by the state, and there was awarded by the board to them in varying proportions, nearly $30,000, which included damages for water power taken, for land taken, for loss in respect to the factory building, for loss in respect to the machine shop and water wheels, and indeed for all their interests at that point. Ho claim for damage was made by any one else, and no payment was ever made by the state to the owner of water rights lower down this creek, and the state has never paid any one for its appropriation of the waters of Skaneateles lake other than ¡these landowners above mentioned. From the time when the state took possession of the dam and control of the gates, while the gate tenders acted under the order of the state and gave or withheld waters as they were directed to do by the state’s agents, yet for most of the time the water had been sufficient for all the purposes of the claimants in regard to their mills and' machinery erected by them or their predecessors along the banks of this stream. It would seem that a mark had been made on behalf of the agents of the state, indicating that if the water was kept to that point there would be sufficient head for the mill immediately below the dam to run a certain number of stone, and when that was the case there was sufficient water flowing down the stream to supply the owners lower down with all that was requisite for their use. The state did not divert any of the waters of the lake through any other channel, but all of the water has flowed down * the natural channel of the creek and along and across the respective premises of the claimants from the time when the state took possession of the dam, as above mentioned. The flow of water from the creek, with occasional short periods, since this appropriation, has been uninterrupted and continuous, both in what is termed the open and closed seasons of navigation on the canal and during all of the time that the agents of the state have been in charge of the gates at said dam, except in some half dozen different years when they have been held back for a short time. In 1866 the flow of the water was stopped by closing the gates from eighteen to twenty, days; and in 1868 the flow of water was wholly cut off for about forty-nine days, for the purpose of rebuilding the dam at the outlet. In 1892 there was another stoppage. The flow, with the exceptions as above stated, has been quite uniform and substantially the same in quantity during the season of closed as during the season of open navigation on the canal, and the flow has been substantially such in quantity as was-required for the operation of the mills on the creek below those immediately at the dam, including the mills of the respective claimants herein, and this quantity has been thus permitted to-flow fi'om the lake, except as already mentioned.
    In 1868 the state re-built the dam but did not increase its height, but by virtue of lowering the bed under the dam and up the outlet of the lake about two and a.-half feet, it secured that increased amount of water. The legislature in 1868 passed an act (chapter 330 of the Laws of that year), which authorized the canal appraisers to hear claims of all persons owning or occupying any water power on this creek for damages sustained since January 1, 1866, by reason of obstructing or withholding the waters'of the creek by the state or its officers, hnd the law provided that in case the act proved were such as would establish a legal liability in a civil action against an individual or. corporation, then the board had power to award such damages to such claimants as-should be just, and provision was made authorizing the payment pf any award thus made. By virtue of that act, the predecessors in title and in the occupancy of the premises and water power of the claimant, the Skaneateles Paper Company, presented to the canal appraisers a claim for damages suffered by them for the suspension of the running of their mill for want of water power for certain days in April, 1866, and in January, February and March, 1868, and the claim was subsequently heard upon its merits by the canal appraisers and an award made September 30, 1869, of over $6,000 for the damage, which award was subsequently paid. A large number of other and like claims were made about this same time and under this same statute, including: the claim of one who was the owner of the premises described in the claim of the claimant Waller herein, and those claims were-tried and awards made pursuant to the statute, and- those awards-were subsequently paid, including the award to the predecessor of the claimant Waller. In 1872, by chapter 583 of the Laws of that year, the legislature appropriated a certain sum for the payment of damages to the mill owners of Skaneateles outlet for the-temporary diversion or appropriation of the waters of the outlet, to be settled by -the canal commissioners, but no claim was to exceed $600 in amount. Pursuant to that act claims were made on the part of the owners of mills on the creek for damages for the temporary appropriation or diversion of the waters of the lake by the state, and such claims were -allowed and awards made and paid, and many of them were those who were lessees, occupants or owner of the premises now owned by the claimant John E. Waller. From February 1, 1892, to March 5, 1892, the gates in this dam were one-half closed, and from March 5 to April 30, 1892, they were wholly closed and no water flowed down the creek. The closing of the gates and the withholding of the water was for the purpose of accumulating and storing water inside of the lake for supplying the canal during the following season of canal navigation, and this action was by the state authorities and to the damage of, the two claimants in this case. It is to obtain payment of these damages that these claims have been filed. The amount of damage has been agreed upon in case the state is responsible for any amount whatever, the amount being $1,000 in the Waller, and $2,500 in the case of the Skaneateles Paper Company. By chapter 314 of the Laws of 1890, amending chapter 291 of the Laws of 1889, permission was given to the Syracuse water board, under certain conditions and restrictions, to conduct a certain amount of water not required for the Brie canal, from Skaneateles lake to the city of Syracuse, for the purpose of supplying that city and its inhabitants with water. That act provided, however, that before any water should be taken from the lake under the provisions of the act, the city of Syracuse should acquire or extinguish the water power rights upon the outlet of said lake, to be affected by the proposed storage of water, and the city was directed to protect and save harmless the state of New York from and against all claims and demands of riparian owners upon said lake for loss or damage occasioned by any act or structure authorized by the act. The Board of Claims, after a hearing on the whole case, has made an award of “ nothing,” and each of these claimants has appealed to this court.

      Edwin Nottingham, for app’lt, Skaneateles Paper Company ; Charles A. Hawley, for app’lt, Waller; T. E. Hancock, Attorney-General, for resp’t.
   Peckham,

I think that the board of claims has erred in its award in this case. The facts set forth in the above statement seem to me to show beyond controversy that the state never intended to, and, in fact, never has appropriated and taken possession as owner of all the waters of Skaneateles lake, as against all the riparian owners, below the dam down the Seneca river. The state, prior to 1843, had been frequently guilty of acts of trespass as against the owners of the dam and the lands immediately sur? rounding it and the mills immediately below it. The state’s agents had, upon occasion, gone upon the lands of these private individuals' and without right opened the gates of the dam and taken the waters from the lake in larger quantities than the proper use thereof by the owners themselves would have required for the running of their mills and their machinery dependent upon that water power, and by taking this excess of water they reduced the head and thus impaired the power and prevented the owners from exercising the rights which they had at the dam and in the use of the waters above it. Although the state was thus a wrongdoer, and though by reason of the wrong it had injured the owners of the water rights immediately below the dam, yet it had thereby done no injury whatever to the lower riparian owners. The water flowed through its natural channel across the lands of these owners, and the natural fall between the dam and themselves was sufficient, and hence they had all the use of the water power which they required. It was not in the letting of the water down that any injury could come to the owners below. The retention of the water, if carried far enough to prevent the use of the machinery by the lower mill owners, would alone cause them injury. But nothing of that kind had happened up to 1843, and it is evident that the final action of the state was without reference to them. The first report made by the engineer to the canal commissioners, in 1842, January 6th, gave a plan by which more water could be obtained from the lake without injury to the mill owners immediately below the dam. The method by which that work was to be done is not important to .now notice, but it is material to note that the plan provided for no damage being done to any owner of hydraulic rights on this stream. To speak of the method by which this end was to be accomplished is not necessary. That report and plan were never carried out; no work was ever done under it, and the plan was abandoned. Another report was made by the engineer containing a plan which was to be more expensive in carrying out than the plan contained in the first report, because while the owners of hydraulic power further down on the stream below were not to be injured, yet the owners of such rights immediately below the dam would be damaged, and the value of their rights greatly diminished. This second plan provided, therefore, that these owners were to be compensated for the loss of their rights, and for the lands which they owned, and for the dam itself, all of which were to be appropriated and taken possession of and owned by the state, and payment was to.be made therefor to such owners. As the canal had been completed for quite a number of years at this time, neither the canal commissioners nor the canal board had the right to take any property or appropriate any lands which they might have had under provisions looking to the construction of the canal; and the powers of the canal commissioners and of the canal board have their origin, so far as their right to take these lands and these waters are concerned, in §§ 17 and 18 of the 1st Revised Statutes (p. 221), and § 74 (id. p. 230).

I have found in the record here no actual decision of the canal commissioners, pursuant to § 17 of the above statute, that, in their opinion, it was necessary or expedient to open a new feeder for the canal at this point, nor is there anything showing that they had caused to be made the necessary surveys and levels, and accurate drafts, plans and models or maps of the contemplated work necessary in opening such new feeder, or showing that any estimate in minute detail of the probable expense to be incurred, had been made, except such proof as may be inferred from the recitals which precede the resolution adopted by the canal board in June, 1843. We may assume, however, that the canal commissioners had done all that was requisite in order to comply with § 17 above cited, and that the canal board had the necessary plan, map, levels, etc., before it at the time when it passed that resolution. There is no pretense that any other plan or map was adopted by the canal commissioners, or was before the canal board, than the plan which is spoken of in the second report of the engineer to. the canal commissioners, and that report provides for the execution of the work and the taking of the land necessary therefor upon the plan of dispensing with lowering the bed of the outlet below the dam at the village and also for the payment of damages for the water rights to be appropriated belonging to the individuals whose mills are situated immediately below the dam which was to be taken. This plan worked no injury to the owners lower down. The map which accompanied this report showed the land which was to be taken and the dam and the situation of the mills, the owners of which were to be compensated for the property of which they were to be deprived and for their water rights. With this plan and this map before the board and with this recital which precedes the resolution adopted by it, it is plain that when the canal board made use of the words of appropriation regarding the waters of the lake and the outlet, it had reference to the subject-matter which was then before that board as contained in that report, plan and map. The general use, therefore, of the words of appropriation, where the resolution speaks of appropriating all the waters of the lake and of the outlet, must be held under such circumstances to refer to the appropriation of all such waters as against those owners whose lands and property and water rights were by the plan to be taken and appropriated and who were specially designated and known and described in the report, the plan and the map before the board when the resolution was adopted. If there were any doubt in regard to the meaning of such language it seems to me that the acts of the officers of the state at the time and immediately subsequent to the passing of that resolution, even down to the year 1892, have been consistent with no other idea than that this appropriation was directed at and meant to apply to the owners rights and lands described in the report, the plan and the map. In this way it could very properly be said that as against them the waters of the lake and of the outlet were taken possession of and appropriated by the state, because the state immediately took the lands and extinguished the rights of those owners by virtue of such appropriation. But they never have asserted any right absolutely and subject to no claim or liability for damage, to appropriate the waters of this lake and its outlet as against the lower riparian owners and the state has not assumed the right to wholly withold the supply of water, without any corresponding obligation to pay to the owners the amount of the damage which such owners might sustain by reason of such withholding. The finding of the Board of Claims and the evidence to support it are both clear upon this question, and although the state has exercised its rights to use the water in this lake for the purpose of a feeder to the canal, yet that right has never been inconsistent with the rights of the riparian owners below, excepting in the case of the storage of the water and the withholding of the supply, and in those cases where the withholding of the supply was to such an amount as to prevent the operation of the machincry of the mills by their owners on the stream below, the state has recognized that snch withholding was unlawful, and it has passed statutes providing for the hearing of the claims of such owners, and upon proof of facts which would, as against individuals, con-' stitute a legal claim, it has made provision for the ascertainment of the amount and the payment thereof by its agents. This was done in 1868, after the state had withheld the waters for purposes of its own for a length of time sufficient to cause an appreciable damage to the owners below, and thousands of dollars were paid to such owners by the state on account of such damage, which, if the theory of the counsel for the state as now presented were- correct, the state was never under the slightest obligation, legal or moral, to pay because of the fact that it had taken possession of and appropriated to its own use those rights many years ago.

We do not think that by the action of the canal board or the canal commissioners, or their combined action, these rights of the -owners upon the stream below were included in the words of appropriation in the resolution of the canal board. Therefore, neither they nor their predecessors had any ground to base an appearance upon before the canal appraisers and attempt to prove any permanent damage to their rights by virtue of the- resolution of appropriation. The appropriation did not touch them or their rights. Mere words of appropriation, unaccompanied by any act on the part of the officers of the state towards carrying such appropriation into execution and taking possesion of or controling in some form the property which is to be appropriated, cannot amount to an actual and complete appropriation, and when we have, as we have-in this case, ample scope for the application of these words of appropriation to those owners .only, who were included in the engineer’s report and plan and map. and in respect to vvhom actual possession was taken, -they will not be extended so as to include those who beyond all question were not within the contemplation of the board which, with the plan and map before it, passed the resolution.

This policy on the part of the state not to then take the rights of the riparian owners farther down the stream was- not unwise at the time. For more than twenty years after the appropriation as stated, there was no trouble with these owners, and the state had all the water it required. And for more than twenty years in addition the occasions have been few for withholding the water to the damage of the owners. It would probably have been quite expensive to extinguish those rights at that time, and the necessity for doing so was not present. The state continued on, therefore, and when the necessity arose for temporarily withholding water it was done, its liability for the damage it thus caused was acknowledged, and it was paid under legislative sanction. It is conceded that the state has never in fact paid for the permanent appropriation of these rights, and we find no hardship in making it liable for causing them temporary damage since the Iqst payment on that account.

There is nothing in the case of Sweet v. City of Syracuse, 129 N. Y. 316; 38 St. Rep. 933, which is inconsistent with the view herein expressed. The question as to what rights existed in the lower owners of the waters below the dam on this stream was not in controversy. The plaintiff in that case assumed that the state was the owner of the waters of the lake and of the outlet, and that by virtue of proceedings heretofore taken the state had made ■Skaneateles lake substantially a part of the canal system of the state, and that it had no constitutional power, therefore, to permit any portion of the waters of that lake to be used for any other than canal purposes. There were some other constitutional objections discussed in that case which are not material here. This ■court simply said that at most the state had taken the waters of the lake to an extent that was necessary for canal purposes, and that any surplus beyond that might be, by legislative act, permitted to be used for other purposes without in any degree infringing upon the constitutional provision that the canals of the state shall not be sold or in any manner disposed of. What was stated in regard to the rights of the state in the lake was simply with reference to this question, and without having the subject of the rights of the lower proprietors on the stream as between them and the state in mind, and without deciding or attempting to decide, or even referring to the question whether such rights did or did not exist. The act itself, however, which enabled the city of Syracuse to take the water upon conditions specified, recognizes that there might be important rights on the part of these lower owners on the stream, and indeed the act seems to assume that there were, and it provides that the city shall not go on with the construction of the work unless, under certain circumstances, those rights are extinguished, as provided for in the act. •

I recognize the importance of the principles which might be deduced ¡from the decision of this case in some of its possible aspects. We do not, however, intend to decide what generally it may be necessary .and requisite for the state to do in order to obtain the right to the use of all the water in this or any other lake or stream, and as against the world and for the purpose of carrying on its canal system. We limit our decision to the peculiar facts in the case, and we hold that the words contained in the resolution of the canal board appropriating the waters of Skaneateles lake and the outlet of the same to the use of the public as a reservoir and feeder to the Erie canal are to be limited, by reason of the facts above detailed, to the property and rights spoken of in the report, plans and map of the engineer, which were before the canal board at the time of its adoption of the resolution, and which, when read in connection with the resolution, limit those words in the manner already indicated.

For these reasons we think the claimants made out a good cause of action against the state for damages sustained by them by the withholding of the waters in the Skaneateles creek in 1892, as described in their claims, and as all the facts have been brought out, and there is substantially no dispute in regard to them, and as they lead, as matter of law, to the conclusion that a cause of action was made out, it is proper to order judgment here for the amount of the damage that it was conceded the plaintiffs were en-_ titled to, if they were entitled to any. The award of the board of claims should, therefore, be reversed and an award entered for '$1,000 in favor of the claimant John E. Waller, and an award of $2,500 entered in favor of the claimant the Skaneateles Paper Company, with costs.

All concur, except Andrews, Ch. J., not voting, and O’Brien,. J., dissenting.

Award reversed and ordered accordingly.


author: Peckhah, J.

text:
    Cornelia Fay Cline, App’lt, v. David H. Sherman et al., as Executors, etc., Resp’ts.

      (Court of Appeals,

      Filed February 5, 1895.)

    Trustees—Liability.
    A trustee is not liable for a trust fund held by his co-trustee, where a. division of such fund, made between them, has been approved by a binding adjudication of the surrogate’s court.
    Appeal from a judgment of the general term of the supreme court in the second judicial department, entered upon an order which amended a judgment in favor of, defendants entered upon a decision of the court on trial at special term.
    This action is brought by the plaintiff, a granddaughter of one Walter Sherman, deceased, to compel defendants, as executor's and trustees under his will, to account for a trust fund to. which, the plaintiff was entitled under her grandfather’s will upon attaining her majority.
    The judgment was in favor of the defendant David H. Sherman, on the ground that he was not responsible, upon the facts appearing, for the acts of the other defendant, who was also a trustee and in whose custody the $10,000 trust fund was placed.
    The following is the fourth clause of the will under which the-trust fund was created :
    “ Fourth." I give and bequeath to each of my four grandchildren, Walter A. Sherman, Jr., Mary 0. Sherman, Cornelia. Fay Sherman and David H. Sherman, Jr., the sum of $10,000 apiece, to be set apart for each by my executors one year after my decease, and to be invested and re-invested safely by my executors-with the accumulated interest until each.of my said grandchildren severally shall become of age; and I order and direct my said executors to pay over said sum, with its.accumulations, to each of my said grandchildren respectively, as be or she reaches the age of twenty-one years. If any of my grandchildren shall die before reaching the age of twenty-one years, leaving issue, such issue shall thereupon take the sum so given hereby to the parent; but should any-so die without issue before twenty-one the said sum or sums, with the accumulations, shall revert to my general estate.”
    The defendants were made executors by the seventh clause of the will. They were sons of the testator, and each had two children, the four.being-the beneficiaries named in the above fourth clause of the will. The executors subsequently duly presented their petition for a final accounting as executors, and in the account, as presented by them, the following statement was made after acknowledging the receipt by them of the assets of the testator:
    “ From the amount thereof we have set apart the sum of $40,-000, and adding from our own funds the amount of premiums, we have purchased and now hold $10,000 in United States four peícent. bonds, registered in the name of- David H. Sherman, trustee of Walter A. Sherman; $10,000 in like bonds, registered in the name of David H. Sherman, trustee for Mary C. Sherman ; $10,-000 in like bonds, registered in the name of Samuel W. Sherman,, trustee for Cornelia Fay Sherman, and $10,000 in like bonds,, registered in the name of Samuel W. Sherman, trustee for David H. Sherman, Jr., all of said bonds being here set down at their face value.”
    Everybody interested was duly cited and appeared on the accounting ; the plaintiff, at that time an infant, appeared by her guardian ad litem.

    The court on this trial finds that the defendant “David H. Sherman retained in his hands and custody from the property of the estate the sum of twenty thousand ($20,000) dollars, by which the ‘fourth ’ clause of said will was set apart for Walter A. Sherman, and Mary 0. Sherman, and that Samuel W. Sherman retained from the property of the estate the sum of twenty thousand'-($20,000) dollars, which was set apart for the plaintiff, Cornelia. Fay Sherman, and David H. Sherman, Jr., and that he invested $10,000 of the same in United States bonds, registered in the name of Samuel W. Sherman, trustee for Cornelia Fay Sherman, the plain tiff. ”
    Each executor thus retained in his character of trustee that portion of the trust fund applicable to his own children. The surrogate, after the presentation of the account and the appearance of all interested and no one opposing, entered a decree, approving of the action of the executors in these words: “And it appearing by said accounts so signed and verified by said executors, and by • proof now made before the surrogate, that the said David H. Sherman and Samuel W. Sherman are the sole heirs at law and next of kin of said deceased, and also the only residuary legatees under said will, and that they have equally and fairly divided the remainder of said estate between themselves as such legatees, after paying all the specific legacies given by said will, and establishing the four trusts of ten thousand dollars each, provided for therein, the said David H. Sherman and Samuel W. Sherman are, and each of them is, hereby released and discharged from all and every liability, as well to each other as to others, as executors, as aforesaid, or otherwise for or on account of all moneys or property received or disbursed by them for or on account of the estate of the said Walter Sherman, deceased, and all the transactions and proceedings of the said executors are hereby approved, ratified and confirmed.”

      Milton A. Fowler, for app’lt; Ira D. Warren, for resp’t.

      Affirming, 61 St. Rep. 696.,

   Peckhah, J.

The language of the will of Walter Sherman made the executors trustees of the fund of forty thousand dollars provided for in the fourth clause of the will. This fund came into their possession in the iirst place in their character as executors, ior the purpose of being disposed of as the will directed. They in due time sought to end their duties and liabilities as executors, And to that end applied for a final accounting as such. In the accounts whicli they presented they showed in effect that they had taken the trust fund and divided it by distributing one-half to each of the executors in their character as trustees under the above mentioned fourth clause. This account so presented showed that they had paid as executors to themselves as trustees under the will the Amount of the trust fund in the way stated. Thus, in assumed •compliance with the will, this distribution of the estate was made ■by the executors, and the question for the surrogate to decide was whether such payment and distribution were right. It may or may not have been right, but the surrogate had the power to •decide in regard to it by virtue of his power to decree a distribution of the estate of the testator according to the terms of the will, including the trust fund. Everybody interested in the estate was before the surrogate, and with all the facts before him he approved •of this distribution and decreed accordingly. From that time the •executors were discharged and they held the trust fund as trustees under a decree which approved of and substantially directed this separation. The surrogate had jurisdiction to make such a direction and decree such a distribution even though it may have been erroneous. No appeal was taken from the decree, and now, after twelve years of acquiescence in all of its provisions, one of the •children of one of the trustees desires to make.the other trustee liable for the misconduct of his original co-trustee in relation to the fund in the possession of such co-trustee. I do not think the liability remained after the decree providing for and approving of the distribution was made. It would also seem to be going a long way in advance of any decision we have heretofore made to hold such a trustee liable for the waste of that part of a trust fund which under these circumstances had been placed in the physical possession and control of one of his colleagues by the direction and approval of the surrogate and where no negligence was shown ■on the part of the trustee who was sought to be made liable other than an acquiescence in the decision of the surrogate decreeing and approving of such separation of the funds.

We think the decision was right and it should be affirmed, with ■costs.

All concur, except Bartlett, J., not voting.

Judgment affirmed.


author: Haight, J.

text:
    In the Matter of the Judicial Settlement of the Accounts of David B. Johnston et al., as Administrator, etc. William T. A. Hart, as Administrator, etc., App’lt, v. Hugh Langan et al., Resp’ts.

      (Court of Appeals,

      Filed February 5, 1895.)

    Evidence—Value.
    Where, upon the settlement of the accounts of an administrator, it was sought to charge him with the value of an undivided one-eighth interest in a certain leasehold estate, which he sold at public auction, upon the ground that the sale was not properly conducted, and it appeared that he purchased at private sale nine days before the sale in question another one-eighth interest in the same estate, evidence of the price paid upon such purchase is competent against him upon the question as to the value of the interest sold.
    Appeal from j udgment of the general term of the supreme court in the first judicial department, entered upon an order which modified and affirmed as modified a decree of the surrogate of the county of New York on settlement of the accounts of the administrators of Archibald Johnston, deceased.

      George L. Terry for app’lt; William G. Reddy, for resp’t.
   Haight, J.

Archibald Johnston died on the 31st day of August, 1887, and letters of administration were issued upon his estate to David B. Johnston and the appellant, William T. A. Hart, November 22, 1887. David B. Johnston was a non-resident, and has taken no part in the administration of the estate.

At the time of the death of Archibald Johnston he was the owner of an undivided one-eighth interest in a leasehold estate for a term of years in premises known as Nos. 105 and 107 East Thirteenth street in the city of New York, - with covenants of renewal, etc. At that time the appellant Hart was the owner of an undivided one-half, Ambrose 0. Neall an undivided one-fourth and Theodosia H. Johnston, the wife of Archibald Johnston, the other undivided one-eighth part of such leasehold.

Thereafter, on the 18th day of February, 1888, the appellant Hart purchased from Theodosia H. Johnston her undivided one-eighth interest for $1,500, and on the 27th day of February thereafter the appellant, as such administrator, at public auction, sold the undivided one-eighth interest owned by Archibald Johnston at the time of his decease to James Kenney for the sum of $110. The referee found that the value of this one-eighth interest was the sum of $1,500; that the sale was for an inadequate consideration, improvidently made, with knowledge of the actual value thereof, and in violation of his duty as administrator. It further appears that the sale was first advertised in the New York World on the 12th, 15th and 19th days of February, to take place on the 20th ; that on the 20th it was adjourned to the 27th of February ; but no proof was presented showing that such adjournment was advertised; that on the last-mentioned day there was present at the sale, Hart, the administrator, and his attorney; that Kenny was not present, but the premises were bid in by-the attorney for Kenny ; that thereafter Hart brought an action for the partition of the leasehold estate; that it proceeded' to judgment and the premises were sold, pursuant to the decree entered in the action, to Ambrose 0. Neall for the sum of $6,300, but that Neall assigned his bid to the appellant Hart, who thus became the owner of the entire leasehold estate.

An exception was taken to the finding that the value of the interest of the intestate sold by the administrator to Kenny was the sum of $1,500; and it is now contended that there was no evidence to sustain such finding; that the evidence that Hart gave Mrs. Johnston $1,500 for her one-eighth interest was not competent and cannot be considered on the question of value.

It appears to us that the testimony was competent andds some-evidence of the value of the leasehold estate. It .is true that the appellant purchased Mrs. Johnston’s interest at private sale; but presumably he paid no greater sum than he considered it worth. There is no pretense -that any fraud or deception was practiced upon him or that he was in "any manner deceived as to its value. This was but nine days before he sold the interest belonging to the estate. The purchase was not remote, nor is there any claim of any change in the value of the property. It has been repeatedly held that the prices paid at auction, or public sale, tended to show the value of the property, and we fail to see why the principle-upon which such decisions rest, does not apply with equal force,, under the circumstances, to the sale made by Mrs. Johnston to-the appellant. In Parmenter v. Fitzpatrick, 135 N. Y. 190; 48 St. Rep. 80, it was held that proof of the price obtained at an actual bona fide sale of property fairly conducted and not forced, whether at auction or private sale, is competent upon the question of value.

In Hoffman v. Connor, 76 N. Y. 121-124, the plaintiff, for the purpose of proving the value of the property, was asked what she paid for it. This was objected to as incompetent, and the objection was overruled. The evidence was held competent; that what a party paid for property “is some evidence of its value." See, also, Knicherbocker Life Ins. Co. v. Nelson, 78 N. Y. 137, 144; Campell v. Woodworth, 20 id. 499; Gill v. McNamee, 42 id. 44-46. The facts here disclosed distinguish the case from that of Dailey v. Crowley, 5 Lans. 301. .

" The decree appealed from should be affirmed, with costs.

All concur.

Judgment affirmed.

       Affirming 56 St. Rep. 692.


author: Haight J.

text:
    Ann McDonald, App’lt, v. Bryan O’Hara, as Executor etc., Impleaded, etc., Res’pt.

      (Court of Appeals,

      Filed February 6, 1895.)

    1. Will—Conversion—Election.
    Where the direction to sell, embraced in the will, is imperative and operates to convert the realty into personalty, the persons who are exclusively entitled to the fund arising from the sale may, if they so elect prior to the actual sale, take the real estate in its unconverted form.

      3. Same.
    But there must be a concurrence on the part of all the beneficiaries in such election, in order to take it out of the operation of the power of sale given by the will.
    Appeal from order of the general term of the superior court of the city of Hew York, which affirmed an order of special term, which denied a motion by plaintiff to continue a temporary injunction restraining defendant from executing the power of sale contained in the will of John T. McDonald, deceased.

      James Kearney, for app’lt; William J. Lacey, for resp’t.

      Affirming 63 St. Rep. 133.

   Haight J.

This action was brought for the partition of real estate.

It appears that John T. McDonald, late of the city of Hew York, died in the month of May, 1891, leaving him surviving six sisters, of which the plaintiff was one, together with Thomas F. McDonald, John P. McDonald, and James A. McDonald, children of a deceased brother, Patrick McDonald; that lie left a last will and testament which had been duly proved and admitted to probate, in which it was provided in the fourth item thereof that, “All the rest, residue and remainder of my estate, real and personal, I hereby direct and empower my said executors, or the survivor of them, as soon as practicable, to sell and divide into equal parts, and pay and distribute the said residue and remainder among my sisters, Mary Conlon, Ann McDonald, Bridget McDonald, Kate McDonald, Margaret Kilduff, Ellen McDonald and the children of my brother, Patrick McDonald, share and share alike; and in case of the death of either of them, then such residue to be divided among the survivors of them in equal parts, share and share alike, the said children of my brother Patrick taking thé share to which they would be entitled in one of said equal parts.” At the time of his decease he was the owner of real estate situated on the southeasterly corner of 85th street and Madison avenue in the city of Hew York, consisting of three five-story apartment houses. These houses were occupied throughout by tenants, producing a fair income. In the month of June, 1894, the defendant O'Hara, as sole surviving executor, advertised the real estate in question for sale at public auction at the Hew York Beal Estate Sales Booms, 111 Broadway, upon liberal terms. As soon as this notice was discovered by the plaintiff she objected to the sale, insisting that the market was dull and money for real estate investments scarce, and that irreparable injury would result from a forced sale at that time. Four of her sisters and her nephews Thomas F. and John P. McDonald joined with her in the request that the premises be not then sold, and that the injunction prayed for issue restraining the sale. The plaintiff’s sister Mary Conlon and her nephew James A. McDonald were made parties defendant; but they do not appear to have joined in the request. James A. McDonald is an infant thirteen years of age.

We are inclined to the view that there is no escape from the conclusion that the direction to sell embraced in the will is imperative, and that it operates to convert the realty into personalty. Delafield v. Barlow, 107 N. Y. 535; 12 St. Rep. 494. It is, however, well settled that the persons who are exclusively entitled to the fund arising from the sale may, if they so elect prior to the actual sale, take the real estate in its unconverted form. Story’s Eq. § 793; Hetzel v. Barber, 69 N. Y. 1-11; Prentice v. Janssen, 79 N. Y. 478-485 ; Mellen v. Mellen, 139 N. Y. 210-220; 54 St Rep. 670. There must, however, be a concurrence on the part of all the beneficiaries in an election to take the land in order to take it out of the operation of the power of sale given by the will. This has not been done. Should we assume that the request signed by Kate McDonald and others, that the sale advertised by the executor be enjoined, amounts to an election, a question which we do not now determine, the election is still incomplete, because only made by a part of those entitled to the proceeds of the sale. It is contended that James A. McDonald, being a minor, is incapable of making an election. True, he has himself no such power. Whether his guardian, by the consent of the court, might elect for him it is not necessary now to determine, for no election by guardian has been made, or consent of the court asked. Mary Gonlon was of full age, capable of making an election, and yet no act on her part is disclosed from which she can be said to have consented to accept the real estate.

The order appealed from should, therefore, be affirmed, with costs.

All concur.

Order affirmed.