author: Sherman, S.

text:
    In the Matter of the Estate of Enoch Marcial, Deceased.

      (Surrogate’s Court, Chautauqua County,

      Filed May 21, 1891.)

    1. Will—Poxver op surrogate to construe will op real estate.
    The surrogate’s court has jurisdiction to give judicial construction to a will of real estate.

      2. Same—Perpetuities.
    The testator died seized of one hundred acres of real estate, and owned no personal property. He left five children and three grand children, heirs-at-law, all of full age. He appointed his son Martin Marcial executor, and in terms devised his real estate to him and to his, Martin’s, four sons, aged respectively ten, seven, four and two years at date of will, September 11, 1889. as follows: The use of it to his son, Martin, until Martin’s oldest son should be thirty years old, and then such son to have the title. In case such son should die before being thirty years old, then said Martin to have the use of the land until said Martin’s next oldest^ son should he thirty years old, but in case such son should die before arriving to that age, then said Martin should have the use until his next .oldest son should be thirty years old, but in case of his death before that age, then said Martin should continue to have the use of the land until his next oldest son should arrive at the age of thirty years, and so on, untü the oldest live son of said Martin should become vested with the title to said land. Held, that such will was void under the Revised .Statutes relating to perpetuities.
    The testator, Enoch Marcial, died January 31, 1890 leaving two sons, three daughters and three grandchildren, his only heirs-at-law, and owning a farm of one hundred acres, worth $3,000, situate in the town of Mina in said county, on which he resided at his death, and leaving no personal property. He made his will, dated September 11, 1889, and appointed his son Martin Marcial sole executor, who then had four sons living, who were grandchildren of the testator, of the ages respectively of ten, seven, four and two years.
    The learned counsel for the proponent, Martin Marcial, and also the counsel for the eight heirs-at-law of the decedent, contestants herein, requested the surrogate to give judicial construction to the instrument propounded as and for the last will of the deceased, as to whether or not the same was a valid instrument to convey the legal title of such land to the legatees therein named under the provisions of the Eevised Statutes relating to perpetuities, against suspending the power of alienation during a longer period than the continuance of .two lives in being at the time of the creation of the estate, neither counsel making any suggestion as to the jurisdiction of the surrogate in the premises.
    The following is a copy of the material parts of such instrument:
    “I, Enoch Marcial, of Mina, ¡N". Y., aged eighty-one years, declare this to be my last will and testament, that is to say :

      “First. After all my lawful debts are paid and discharged, I give and bequeath to my son Martin Marcial the use of one hundred acres of land in said town of Mina (describing it) until Ira Marcial, son of my said son, Martin Marcial, becomes thirty years of age, and in case of said Ira’s death before arriving at the age of thirty years, then said use of -said 100 acres of land_ continues to Mai’tin Marcial until the next oldest son of said Martin Marcial arrives at the age of said thirty years, and so on until the oldest live son of said Martin Marcial arrives at the age of thirty years. Upon said Ira Marcial’s arriving at the age of thirty years the title of said 100 acres of land is to vest absolutely in said Ira Marcial, or in case of said Ira’s death before arriving at the age of thirty years then said title is to vest absolutely in said next oldest son on arriving at the age of thirty years, and so on until the oldest live son of said Martin Marcial shall become invested with the title to said 100 acres of land. It is understood that the use of said 100 acres of land is to be expended by said Martin Marcial in the schooling and education of his children until the title to said 100 acres of land vests as aforesaid.
    “ Likewise I make, constitute and appoint my said son Martin Marcial to be executor of this my last will and testament.”
    Such instrument was duly signed by the testator and witnessed and proved to have been duly executed, and that the said testator •was of sound mind when making said will, and under no restraint.

      Walter L. Sessions, for the proponent.
    The will does not give Martin Marcial a life estate in the land, but only the use until his oldest son is thirty years old, so there is no suspension of the power of alienation during Martin’s life, or during the life of either of his sons. 4 R. S., 8th ed., 2432, § 15; Fowler v. Depau, 26 Barb., 224; Savage v. Burnham, 17 N. Y., 561. Martin, the father, may work the land for years. The boys are alive and the one first of age takes the fee. No trust is created for lives unborn.

      Van Dusen & Martin, for contestants.
    The testator attempted to create a certain future contingent estate, by a devise to his grandson, Ira, providing he should live to be thirty years old, with the life estate in his son Martin during such limitation. That Ira would live to such age was uncertain. 4 E. S. 2432, § 13. Future estates are void in their creation, which suspend the power of alienation longer than during the continuance of two lives in being at the creation of the estate. E. S., supra, § 15. Alienation is suspended when there are no persons in being by whom an absolute fee in possession can be conveyed. E. S., supra, § 14. The instrument attempted to create future estates in the grandchildren, with a dependent life estate in their father in contravention to the above statute and is void. Jennings v. Jennings, 7 N. Y., 547; Hawley v. James, 16 Wend., 61; Beekman v. Bonsor, 23 N. Y., 314; Schettler v. Smith, 41 id., 328; Knox v. Jones, 47 id., 389; Colton v. Fox, 67 id., 348; Smith v. Edwards, 88 id., 92 ; Crooke v. County of Kings, 97 id., 421; Ward v. Ward, 105 id., 68, 74; 6 N. Y. State Rep., 798. Such estates must be so limited that in every possible contingency they will absolutely terminate at such period or be held void. Haynes v. Sherman, 117 N. Y., 433; 27 N. Y. State Rep., 254; Lewis on Perpetuities, 170; Hawley v. James, supra; Schettler v. Smith, supra. In this case both the life estate and the remainder are void ; the principal devise failing, all fail, giving effect to above §§ 14, 15, 17 and 19, E. S., 2432. Amory v. Lord, 9 N. Y., 403, 413, 419 ; In re Wood's Estate, 7 N. Y. Supp., 436.
   Sherman, S.

I am of the opinion that the instrument produced as the last will of Enoch Marcial is utterly void, under the statute of perpetuities, and the authorities cited by the learned counsel for the contestants; that it is not a valid will to pass title to real estate. It suspends the power of alienation beyond the continuance of two lives in being at the creation of the estate. It attempts to create contingent estates to at least four lives in being. The fee of the land may never vest in any of the four grandchildren, nor in any other grandson of the testator that might be born after the date of the alleged will. The four living grandchildren can convey no legal title, because they are not heirs at law, and as legatees the title might not vest in any one of them, or in any other after born son of Martin Marcial until after the death of four persons in being at the creation of the estate, September 11, 1889.

The important question to be considered is whether the surro: gate court has jurisdiction to give construction to this instrument upon the consent and request of all the parties interested. Such request cannot give the court jurisdiction in the premises. If it exists, it must be found in the several provisions of the Code of Civil Procedure, statutes of this state, and decisions of the courts relating thereto. I have carefully examined these and have come to the conclusion that each surrogate court of this state has jurisdiction to give construction- to wills on probate, relating to both real and personal property. That it has such jurisdiction as to wills of personal property there can be no doubt. Section 2624 of the Code not only grants it, but positively requires such courts to determine the question in making decrees in cases of residents of the state owning personal property therein.

In most cases wills requiring construction on probate relate to both real and personal property, and the questions involved are the same, and generally the value of the personal property involved largely exceeds that of the real. The surrogate court has undoubted jurisdiction to construe that part of wills relating to personalty, and it has been claimed that the supreme court only can in the first instance construe parts of such wills that relate to the realty, thus necessarily constituting two parallel lines of litigation, in two courts, under the same will, upon the same identical questions as to construction, with the chances that -the decision of the highest court will on appeal be first rendered upon the construction given in the surrogate court relating to the personalty.

It is not credible that the learned codifiers of the Code of Civil Procedure, and the legislature, ever intended to create such an anomaly. • On the contrary, is not the presumption reasonable that they should have endeavored to assimilate the practice and jurisdiction of these courts, in the important matter of probate of wills of real and personal property, by adopting a harmonious and symmetrical system, avoiding unnecessary costs and delays, and so conserve the rights of litigants ? I think that a careful examination of the history of legislation on this subject shows that the latter course has been adopted by giving surrogate courts jurisdiction to construe wills of both real and personal property, on probate, the same as has been given on settlement of estates, and was given to the surrogate court of the county of Rew York by chap. 359, Laws 1870, § 11, the same as possessed by the supreme court; which act was repealed by the provisions of the Code that went into effect September 1, 1880, and such provisions of the Code were substituted therefor.

The case of Marx v. McGlynn, 4 Redf., 455. was decided by Calvin, surrogate of the county of New York, in August, 1880, a few days before §§ 1866, 2622, 2623, 2624, 2625, 2626, 2627, 2628 and 2629 of the Code, extending the jurisdiction of the surrogate courts on probate of wills, and recording same, went into effect, and while the act of 1870 was in full force. The learned ex-surrogate, Calvin, says in the above case that his predecessors had never recognized the authority conferred by that act, and in that case he only gave construction to that part of the will relating to personal property, and referred the parties interested to suit in the supreme court, for their remedy as to the realty, saying that § 2624 of the Code, giving surrogate courts jurisdiction to construe wills of personal property on probate, might be regarded as a legislative expression of opinion that such jurisdiction should not be exercised over wills of real estate.”

I have been unable to find any reported case in which the surrogate court of New York ever gave construction to any will relating to either personal or real property under the act of 1870, except the one above cited, during the decade preceding September 1, 1880, when the Code went into effect

In construing the above sections of the Code, the first and an important one to be considered is § 1866, which is as follows:

“ The validity, construction or effect, under the laws of the state, of a testamentary disposition of real property, situated within the state, or of an interest in such property, which would descend to the heir of an intestate, may be determined in an action brought foi; that purpose in like manner as the validity of a deed, purporting to convey land, may be determined. * * * But this section does not apply to a case where the question in controversy is determined by the decree of a surrogate's court, duly rendered upon allegations for the purpose, as prescribed in art 1 of tit. 3 of chap. 18 of this act, where the plaintiff was duly cited in the special proceeding in the surrogate’s court before the commencement of the action.”

It will be noticed that this section relates only to wills of real property; and that the last sentence of the section states that such section does not apply to a case where the question in controversy, i. e., relating to wills of real property, is determined by the decree of the surrogate court, duly rendered upon allegations for that purpose, as prescribed in art. 1, tit 3, chap. 18, of this act (being the sections of the Code above cited), where the plaintiff was duly cited in the special proceeding in the surrogate court before the commencement of the action.

Commissioner Throop says in his note to above section: “ The provision has been expressly confined to real property within the state, and to questions arising under the laws of the state, in accordance with Knox v. Jones, 47 N. Y., 389 ; and it has been so framed as to avoid a conflict with various provisions of chap. 18, post, particularly those contained in tit. 3, art. 1, § 2625, post, whereby Laws 1870, chap. 359, § 11, which authorizes the surrogate of New York to determine questions of validity, etc., has been extended to surrogates throughout the statu”

It will be noticed that the commissioner says that this section (1866) has been expressly confined to real property, and has been ■so framed as to avoid a conflict with the various provisions of chap. 18 (particularly § 2625), whereby the provisions of said act of 1870, to construe wills, etc., was extended to the surrogate’s ■courts throughout the state, which,§ 2625 reads as follows:

“ Where the surrogate decides against the sufficiency of proof or against the validity of a will, or upon the construction, validity or the legal effect of any provision thereof, he must make a decree accordingly; and, if required by either party, he must enter in the minutes the grounds of his decision.”

This section should be considered in connection with § 1866., supra, relating only to wills of real estate, and to which it is made to conform.

Section 2622 relates to the duty of the surrogate to inquire particularly as to all the facts and circumstances relating to the genuineness of the will and to the validity of its execution, the competency of the testator, whether under any restraint, etc., as elucidated in numerous decisions of the courts before the Code, relating only to the factum, of the will and not to its construc tion.

Section 2623 is important in this connection and reads : “If it appears to the surrogate that the will was duly executed ; and that the testator at the time of executing it was in all respects competent to make a will, and not under restraint; it must be admitted to probate, as a will valid to pass real property or personal property or both, as the surrogate determines, and the petition .and citation require, and must be recorded accordingly. The decree admitting it to probate must state whether it was or was not contested.”

Section 2624 requires the surrogate to determine the question of construction of a will of personal property when put in issue, in cases where the will was made within the state by a resident of the state, and the reason given by the commissioner is his note to this section for its insertion was for the special purpose to limit the jurisdiction of surrogate’s courts to construe wills of personal property to cases where the testator was a resident of the state at his death, and owning personal property within the state, citing Despard v. Churchill, 53 N. Y., 192.

Section 2627 provides that “ a decree admitting to probate a will of real property as prescribed in this article, establishes presumptively only all matters determined by the surrogate pursuant to this article as against a party who was duly cited, or a person claiming from, through or under him ; or upon the trial of an action or the hearing of a special proceeding, in which a controversy arises concerning the will.”

Section 2629 requires the surrogate to certify under his hand and seal of office upon every will admitted to probate before him, that it has upon due proof been admitted to probate as a will valid to pass real or personal property, or both, as the case may be, and § 2633 requires the executor to have a will of real property recorded in the office of the county clerk in every county of the state in which lands of the testator are situate, in twenty-days after letters testamentary are issued to him.

It may be claimed that the statutes nowhere give such courts, in terms, direct authority to construe wills of real estate on probate. Such authority is claimed to be granted under their general authority in probating wills, in connection with the authority contained in the above sections of the Code. Neither do the statutes give to such courts, in terms, jurisdiction to construe wills of real estate on the settlement of estates, but it has been long held that such authority exists as clearly implied under their general authority to settle estates and as incident thereto. Riggs v. Cragg, 89 N. Y., 479; Purdy v. Hoyt, 92 id., 446; Du Bois v. Brown, 1 Dem., 317; In re Verplanck, 91 N. Y., 439; Matter of Collyer, 4 Dem., 24; Matter of Thompson, 5 id., 117, 123; §§ 2473, 2481, sub. 11, 2482 of Code.

While 1 find dicta in several cases decided by the surrogates of the county of New York, stating that the surrogate court has not jurisdiction to construe wills of real estate on probate, yet an examination of these cases discloses the fact that the question here-involved was not material in them, such cases having been decided upon other points.

In the case of Prive v. Foucher, 3 Dem., 339, decided by the learned surrogate, Rollins, in 1885, the surrogate assumed that the will in question related to personal property, saying that the surrogate had no jurisdiction to make a determination respecting a testamentary disposition of real property. The decision in that case turned upon an entirely different question, being that the contingency upon which the legatee under certain statutes could take had not arisen, and that, therefore, the methods by which the interest of such legatee could be practically ascertained need not he considered; and the case does not show that the question here concerned was raised, considered or examined by the learned surrogate.

In Jones v. Hamersley, 4 Dem., 427, decided by Rollins, surrogate, in 1886, the will related to both real and personal property, and the surrogate was asked only to construe that part of the will relating to personal property, under § 2624 of the Code. The surrogate held that the parties asking for construction had no standing in court; that the application was not one which would be then ascertained and passed upon by the supreme court, and adds that the provision of the Code then under discussion was enacted in the place of an earlier provision. Laws 1870, chap. 359, § 11, referring to § 2624.

In Matter of Rhoda Fuller, 22 N. Y. State Rep., 352, decided in 1889 by Abbott, surrogate, Kings county, it appears that the counsel for the contestant, Luther M. Fuller, asked only for the construction of the will in respect to a personal legacy to Ella S. C. of the testatrix’ “ bank book in the South Brooklyn Savings Bank, with the contents, on her twenty-first birth-day,” on the ground that the bequest was contingent, and did not vest until the contingency should happen; and, if it should never happen, the legacy would lapse. In the same case the bequest to Lydia E. BrinkerhoS, of personal property in two items of $2,500 and $2,000, was discussed by Judge Abbott, and was not passed upon only as postponing the same until the termination of a cer-' tain life interest. The points presented by the counsel for the proponent did not raise the question as to the testamentary disposition of real estate, yet the learned surrogate incidentally referred to the fourth paragraph of the answer as relating to real property by saying: “The fourth paragraph of the answer refers to a disposition of real property which the surrogate has no jurisdiction to construe under § 2624 of the Code,” a proposition too patent to be denied.

In Matter of Anthony Ellis, 22 N. Y. State Rep., 77, the only question raised or discussed related to the proposition to ask for a construction of the will on petition for revocation under § 2647 of the Code; the learned surrogate (Ransom) holding that such question could only be raised on probate, and not on petition, for revocation of probate.

The case of Matter of Roselia S. Look, 22 N. Y. State Rep., 86, appears to be like this in all essential particulars, and the parties interested asked the surrogate'to give construction to the will which related to both real and personal property. The testatrix died in 1888 seized of the title in fee to land in Chautauqua county valued at $400, and personal property appraised at $5,000, and leaving her surviving twenty-five heirs at law who contested the will. After bequeathing $500 in two legacies, by the third paragraph of her will, she gave and devised all the residue of her property real and personal to the American Bible Society formed in New York in the year 1816, to be used by said society for the promulgation of the Holy Bible. The contestants, heirs at law of the decedent, asked the surrogate to give construction to such residuary clause and adjudge the same void. It clearly appeared that such devise included said real estate as the testatrix owed no debts of any amount, and the surrogate made his decree holding the devise valid. If he had held it void the title to the land would have vested in the contestants. The surrogate’s decree was confirmed by the general term, fifth department, 26 N. Y. State Rep., 745, and has since been affirmed by the court of appeals.

I direct decree, holding that the surrogate court has jurisdiction to give judicial construction to the will in question on probate, and adjudging same void, and denying probate thereof, without' costs to either party.


source: Caselaw Access Project

author: Lansing, S.

license: Public Domain

text:
    In the Matter of the Estate of Aaron Perry, Deceased.

      (Surrogate’s Court, Rensselaer County,

      Filed April 1, 1891.)

    1. Executors and administrators—Accounting—Limitation.
    *'The right of creditors or next of kin of a decedent to require the executor or administrator to account is barred by the statute after thé • expiration of six years from the time when the accounting might be ordered according to § 3724 of the Code. The surety on the bond of an administrator (at least before being charged) has no greater rights or longer time to compel an accounting than other creditors.

      .2. Same—Waiver.
    The plea-of the statute of limitations may be interposed at any time before the evidence is in, and is not waived by the voluntary filing of an account.
    This is an application made by Charles H. Hitchcock, as administrator of the goods, etc., of Ella V. Hitchcock, deceased, for -an order to show cause why Maria Perry, as administratrix of the goods, etc., of Aaron Perry, deceased, should not render an account of her proceedings as such, and pay the petitioner the amount of his distributive share, as administrator, etc., of Eila Y. Hitchcock, deceased.
    Letters of administration upon the estate of Aaron Perry, late of the town of Lansingburgh, deceased, were on the 5th day of February, 1880, granted to Maria Y. Perry, his widow. He left him surviving his widow and children, as follows: Ella Y. Perry (afterwards married to Charles H. Hitchcock), and Clarence A. Perry, both of full age. Ella Y. Hitchcock died October 12, 1888, intestate, and letters on her estate were issued to her husband, November 7, 1883. No inventory was ever filed of the estate of Aaron Perry.
    June 4, 1890, Charles Hitchcock filed a petition in this court to compel a settlement of the account of Maria Y. Perry, as administratrix. On the 8th day of July, 1890, said Hitchcock filed an amended petition in behalf of the estate of Ella Y. Hitchcock as one of the sureties of Maria Y. Perry on the grant of administration to her, for the same relief On the return day of the citation the said Maria Y. Perry as administratrix, etc., filed her account, but at the same time answered the petition, and set up the defense of payment of the claim or share of petitioner’s intestate in the estate of Aaron Perry, deceased; and further answered that the remedy of the petitioner, either as next of kin or ■surety was barred by lapse of time since her liability as administratrix to account had accrued.
    The proceeding was commenced by the filing of the petition June 4, 1890. Code, § 2517.

      King & Ashley (Charles E. Patterson, of counsel), for petitioner; McClellan & McClellan, for Maria V. Perry, administratrix, etc.
   Lansing, S.

The principal question in this case is whether the statute of limitation has run upon the right of the next of kin of said deceased to require the administratrix herein to account and pay the distributive share, if any, alleged to be due the petitioner’s intestate as such next of kin.

Up to the enactment of the Code, and even prior to the Be vised Statutes, Borst v. Corey, 15 N. Y., 505-509, it was settled that the statute of limitations began to run as soon as the right to compel an accounting had accrued. This was originally fixed at one year, and subsequently eighteen months, from the time letters were issued upon the estate of the deceased. Clark v. Ford, 1 Abb. Ct. App. Dec., 359; McCartee v. Camel, 1 Barb. Ch., 455; Clock v. Chad eagne, 10 Hun, 97; Smith, v. Remington, 42 Barb., 75; Dayton on Surrogates, 515.

This was not by reason of any statute upon the subject, but because originally by rule of equity, ahd. subsequently by statute it was provided that where there was a concurrent jurisdiction at law and in equity and in the surrogate’s court (when the same jurisdiction was extended to it) for the collection of debts, legacies and distributive shares, that the statutory -limitation applicable in such actions at law govern the institution of like proceedings in equity and in the surrogate’s court 2 R. S., 301, § 49; id., 114, § 9 ; id., 116, § 18; Kane v. Bloodgood, 7 Johns. Ch., 90, 114; McCartee v. Camel, supra.

Although the relation of an administrator to a distributee is; quite analogous to the relation of trustee and cestui que trust, in which case no lapse of time will bar the claim of 'the cestui que trust, Murray v. Coster, 20 Johns., 576, yet it differs in this, that it is not a direct, express or continuing trust, which is solely cognizable in a court of equity.

Indeed the relation is more akin to that of bailment where the property is held under a contract, obligation or liability, express or implied.” But whatever may be the distinction between the relation of an administrator to the next of kin and of a trustee to-his cestui que trust, it is conclusively settled by repeated adjudications that proceedings for an accounting against an administrator in the surrogate’s court are not exempt from the operation of the statute of limitations.

But the important question which remains is as to the effect of the enactment of the Code of Civil Procedure upon the statute of limitations relative to a compulsory accounting in the surrogate’s court. There has not been entire uniformity of decision by the courts upon that subject since the adoption of the Code of Civil Procedure.

Section 1819 is relied upon to sustain the position that a new rule of limitation has been established by the Code of Civil Procedure, not in direct terms, but by necessary implication upon the subject of an accounting in surrogates’ courts. This section is a part of title 3, chap. 15 of the Code of Civil Procedure. The title is declared to refer to “ actions relating to the estate of a decedent.”

And the first article of the title in which § 1819 occurs is stated to be “ in regard to an action by or against an administrator.”

It will be observed that there is nothing said about special proceedings in this section, nor is it by any provision made applicable to them. The whole title relates to actions only, and the section itself provides for maintaining “ such action ” under certain conditions. The very terms of the section seem to us to preclude the construction that it was intended to embrace special proceedings.

The provision of that section in substance is that the statute of limitations, in respect to actions for the recovery of legacies and distributive shares, shall only begin to run when the executor’s or administrator’s account is judicially settled.

It would seem that the effect of construing this section as applicable to special proceedings in surrogate’s courts would be not to furnish a uniform rule of limitations applicable alike to actions •and special proceedings, but would result in a relegation of such , proceedings to the rule of limitation, if any, arising from presumption of payment; viz.: that after the expiration of twenty years from the time when an action might have been brought or proceedings instituted, the court will presume payment.

We do not think the legislature intended any such result.

But we are not left to reason alone as to the proper construction ■of this section, for the supreme court at general term in the Matter of Van Dyke, 44 Hun, 394; 9 N. Y. State Rep., 137, in a well considered opinion by Mr. Justice Daniels, has decided that this section (1819) applies only to actions. This decision has been followed by numerous adjudications in the surrogate’s Court. Matter of Dunham, Coffin, Sur. (1889); 1 Conn., 321; Matter of Clayton (Bansom, Sur.), id., 444 ; 22 N. Y. State Rep., 886 ; Matter of Nicholls, 23 Abb. N. C. (Potter, Sun), 479; 27 N. Y. State Rep., 37.

Again the distinction between civil actions and special proceedings is recognized throughout the Code and especially by § 414 ■of the Code of Civil Procedure, which provided: “ That the provision of this chapter (entitled limitations for the time of enforcing a civil remedy) apply and constitute the only rule of limitations applicable to a civil action or a special proceeding,” except where otherwise expressly provided.

It is manifest, therefore, that there was no intention on the part •of the legislature to have § 1819 apply to special proceedings, for it is not so expressly provided or necessarily implied therein. We must look elsewhere, therefore, for the rule of limitation applicable to the institution of such proceedings in the surrogate’s court.

Section 414 requires the word “ action ’’ to be construed, when it is necessary to do so, as including a special proceeding. And the same section also declares that chap. 4 contains the “only limitation applicable to special proceedings.” As the proceeding in this case before the surrogate is concededly a special proceeding, we now turn to § 382, chap. 4, subd. 1, and find in effect the rule that proceedings to enforce an account should be commenced within six years after the right to require it has accrued; for this is a proceeding to “ enforce an obligation or liability not arising from a judgment or sealed instrument;” either this or subd. 2 of the same section, relating to a “liability created by statute,” must include the case of a proceeding against an administrator for an accounting in the surrogate’s court.

Then turning to § 2724 of the Code, we find that an administrator may be required'to submit to the judicial settlement of his accounts after the expiration of one year from the time the letters were issued to him. The obligation to account, therefore, accrues at that time; and under the provision of § 382 above referred to the right to require an accounting will be barred after the expiration of six years from the time when the accounting may be ordered according to § 2724. It follows, therefore, that the statute had'run upon the right to compel an accounting by the administratrix before the petition herein was filed.

Although this construction of these several sections (1819, 414 and 382) will result in producing different periods of limitation, one in law and in equity and another in the surrogate’s court, for the enforcement of the same obligation (which we are not quite sure the legislature contemplated), still it may be stated that these sections are not inharmonious ; for § 1819 provides that the action mentioned in it should not be commenced until an accounting had taken place; while §§ 414 and 382 provide fori the time within which the accounting must be had, in order to avoid the effects of a statutory limitation upon the accounting.

We have carefully examined all the cases cited and the provisions of the present Code referred to by the learned counsel for the petitioner in his able brief in support of his contention ; and while it must be conceded that the course of legislation prior to’ the present Code indicated a design upon the part of the legislature of having the same limitation apply to an action and a special proceeding, yet, notwithstanding the legislature has by direct provision in the present Code changed and greatly extended the period of limitation for the institution of actions of the character herein considered, we cannot agree that there is any provision of the Code which directly or by necessary implication warrants the conclusion that the period of limitation within which to institute proceedings for the collection of legacies or distributive shares in the surrogate’s courts has been extended or that the former law upon the subject has been in any manner changed.

Another question suggested for consideration is that of waiver. In this case the administratrix voluntarily filed an account; but at the same time by her answer she set up the statute of limitations. The question of waiver, therefore, becomes merged in the question as to what stage of the proceeding the statute of limitations may be interposed. It has been repeatedly held that it may be set up at any time before all the evidence is in, so that the claimant may have an opportunity to contest the same by proofs which may relieve him from the operation of the statute. Clock v. Chadeagne, supra ; Smith v. Remington, supra ; McCartee v. Camel, supra ; Matter of Clayton, supra.

The remaining question involves the character of the party who institutes the proceedings. It is suggested that the twenty years limitation, § 381, should apply, if at all, to a proceeding where the same was instituted by a surety upon the bond of the administratrix, or at least that the right given a surety under § 2726, Code of Civil Procedure, to require an accounting is not barred by any other statute or rule.

If this proceeding was based upon the bond upon which the petitioner’s intestate, Ella V. Hitchcock, was surety, assuming it-to be in the usual form, this claim would be plausible, as the bond doubtless provides that an administratrix should obey the decree of the surrogate; and he is authorized to require her to account. But the duty to account does not rest on that obligation. It exists independently of any contract liability. The surety will doubtless rest under liability in a proper case for the debts or defaults of his administrator for twenty years. Still it does not follow that distributees or legatees may avail themselves of this extended liability of the principal (the administratrix) or her sureties so as to maintain those proceedings to account in the surrogate’s court after the expiration of six years; nor can the surety (at least before being charged) have any greater right or longer time within which to compel an accounting in that court than any other creditor. Matter of Nicholls, supra. In the latter case this very question, the right of a surety to compel an accounting, was before the court and decided adversely to the petitioner’s contention.

The petition is dismissed, therefore, unless the petitioner shall desire to offer evidence of facts which will avoid the statute of limitations applicable to this proceeding; in which case the hearing may proceed upon that issue. Matter of Underhill, 1 Conn., 314.


author: Corlett, J.

text:
    Junius Judson, Pl’ff, v. Mary O’Connell, Ex’rx, et al., Impl’d, App’lts, and James Fee et al., Purchasers, Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    1. Foreclosure—Resale—Appeal.
    An order denying motion to open a resale on foreclosure and allow the purchaser on the first sale to complete his purchase is a discretionary one, and when made by the county court is not appealable to the supreme court.
    3. Same.
    The referee on a sale in foreclosure correctly stated the amount due on an incumbrance upon the premises, but the purchaser ascertaining that the incumbrance apparently was for a greater sum, refused to complete, and the premises were on the same day sold for a less sum, and the purchasers on the resale completed the purchase and received the deed and the report was subsequently confirmed. Held, that it appearing that there were numerous bidders at the resale, and there being no irregularity claimed, a denial of a motion to open the latter sale and allow the first purchaser to complete was properly denied.
    Appeal from an order of the Monroe county court denying a re-sale of premises sold upon a mortgage foreclosure.

      W. Martin Jones, for app’lts; James M. E. O'Grady, for resp’ts.
   Corlett, J.

In 1887, an action was commenced in the Monroe county court to foreclose a mortgage covering premises in the city of Rochester. Such proceedings were had that in November, 1887, judgment was obtained, and the mortgaged premises were directed to be sold by Greorge H. Humphrey as referee. He advertised the premises for sale, and on the 27th day of December, 1889, they were sold and bid off by one Samuel D. Purdy for $4,000, subject to a mortgage upon which there was unpaid $2,400, and also subject to taxes.

It was discovered by the purchaser immediately after his bid that there was a mortgage of $8,000 on the premises undischarged of record. He declined to consummate the sale for want of time to ascertain the status of that mortgage, and the referee sold on the same day for $2,650. The purchasers on the re-sale paid the amount bid to the referee and received a deed of the. premises, and the next day paid the taxes and the amount due upon the prior mortgage. It appeared there was in fact only due upon the mortgage the amount stated by the referee at the sale, On the 31st day of December, 1889, an order to show cause why the sale •should not be set aside and Purdy allowed to perfect his bid was granted by the county judge of Monroe county. Such proceedings were had that on the 6th day of January, 1890, a referee was appointed to take proofs upon certain conditions specified in the order, which were not complied with. A hearing was had before the county court without the report of a referee, and the order to show cause was dismissed.

On the 20th day of January, 1890, the referee made his report of sale to the county court. On the 2d of April of the same year the county judge appointed a referee to take depositions to be used on a motion to open the sale which resulted in no adjudication, and finally in December, 1890, an order was obtained to show cause why the sale should not be vacated and Purdy permitted to complete his purchase. On the 24th day of December, the motion was denied. From that order, including its incidents, the appellants appealed to this court.

The order was discretionary, and, having been made by a county court, was not appealable to this court. Kingsland et al. v. Bartlett et al., 28 Barb., 480; White v. Coulter, 1 Hun, 357; Buffalo Savings Bank v. Newton, 23 N. Y., 160; Wollung v. Aiken, 6 N. Y. Supp., 331; 25 N. Y. State Rep., 445; Townsend v. Tolhurst, 10 N. Y. Supp., 378; 32 N. Y. State Rep., 21; § 1342 Code Civ. Pro.; Thomas v. Keeler, 52 Hun, 318 ; 23 N. Y. State Rep., 436 ; Myers v. Riley, 36 Hun, 20.

An examination of the case at bar upon the merits fails to show errors on the part of the county court which would authorize a reversal. It is true that the second sale was for $1,350 less than the first purchase. But it appears that there were numerous bidders at the second sale. There is no claim of irregularity, and the county judge seems to have granted every facility to the persons claiming to be aggrieved to obtain a re-sale.

It is not shown that the referee acted improperly at the sale, or that the conditions imposed by the county court were unreasonable. The delays preceding the granting of the order appealed from were very great, and no substantial reason appears which would authorize a reversal. Aside from this the cases above cited, including the adjudications in this department, are decisive against the .appellant’s contention.

It follows that the order appealed from must be affirmed.

Order affirmed, with ten dollars costs and disbursements.

Dwight, P. J., and Macomber, J., concur.


text:
    William Richardson, Assignee for Creditors of A. H. Bradner, App’lt, v. James Fogarty, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    Landlord and tenant—Title to real estate.
    Plaintiff's assignor purchased certain premises at foreclosure sale, hut one L., a subsequent lienor, having threatened to take proceedings to set the sale aside, it was agreed that in consideration of the abandonment of such proceedings the premises in question should be conveyed to him. He then entered into possession thereof, and leased the same to defendant, but no deed was ever executed. In an action to recover rent of such premises, Held, that said premises were owned by L., and that defendant was indebted to said L., and to no other person, for rent, and that judgment in favor of defendant was properly directed.
    Appeal by the plaintiff from a judgment entered upon the report of a referee.

      James Wood, for app’lt; Fred. W. Noyes, for resp’t.
   Corlett, J.

This action was originally commenced before a justice of the peace in Livingston county by Amariah H. Bradner against the respondent in August, 1882, to recover $200 for rent. A plea of title was interposed which alleged that one Martin F. Linsley was the owner of the premises producing the rent, and that the defendant was Linsley’s tenant. The justice, upon the execution of the proper bond, discontinued.

An action was then commenced in the Livingston county court. The complaint delivered to the justice was answered. The county judge was disqualified, and the case was transferred to this court. The action was afterwards referred. The original plaintiff made an assignment for the benefit of creditors to the present plaintiff, who was substituted in his place. The action was tried before the referee, who found as follows:

“First. That this action was originally commenced in the name of Amariah H. Bradner, as plaintiff, before B. T. Squires, Esq., a justice of the peace, to recover the sum of $200 rent money, alleged to be due plaintiff pursuant to the a greement for the letting the premises referred to in the complaint by the said Bradner to the defendant. That the defendant appeared in said action and pleaded title and filed his bond for tlfe purpose of removing the cause to the proper court. That thereafter, and on or about the 30th day of August, 1882, the plaintiff brought this action for the same cause in the Livingston county court, and issue was joined in such action by the service, of the defendant’s answer. That thereafter such action was removed to this court upon the ground that the county judge of Livingston county was a material and necessary witness to the defendant in the prosecution of his defense in this action.
Second. That the Bennet farm, so called, and of which the premises mentioned in the complaint was a parcel, was sold on or about the 5th day of April, 1873, at a foreclosure sale, and Amariah H. Bradner became the purchaser thereof at such sale and took a deed and conveyance thereof.
“Third. That one Martin F. Linsley was a creditor of Fuel H. Blake, the defendant mortgagor in suit which resulted in said foreclosure sale. That said Linsley was a subsequent lienor on the premises sold by virtue of a mortgage on said premises sold at said sale, given to him by said Blake as collateral to said Blake’s bond to said Linsley. That said Linsley went to Greneseo, the place where such sale was held, on the day of said sale for the purpose of buying said farm to protect the lien of his said mortgage; that when he arrived at Geneseo he was informed that the said sale had closed.
“Fourth. That thereafter said Linsley threatened to take such legal proceedings as were necessary to set aside such sale, and he employed counsel for that purpose.
“Fifth. That thereafter Alonzo Bradner, a brother of said Amayah H. Bradner, said Martin F. Linsley and his counsel met pursuant to arrangement at the village of Avon, N. Y, to adjust the matter in dispute, and such negotiations were then and there had that said Linsley, in consideration of the abandonment on his part of his proceedings to set aside such sale, should have thé premises mentioned in the complaint, and known as the ' Bed House Lot,’ secured to him by a deed and conveyance thereof from the said Amariah H. Bradner, the then owner of said premises.
“Sixth. That said Amariah H. Bradner subsequently declared to said Linsley in the presence of one James Yan Ness that he, Bradner, understood the arrangement entered into as above found ^between said Linsley and Alonzo Bradner, and that he would execute a deed of the said premises to said Linsley and send it to him.
“Seventh. That after the arrangement at Avon, hereinbefore found, said Linsley took no further steps to set aside said sale, but, pursuant to the terms of the agreement entered into at the conference at Avon, abandoned all proceedings in that behalf and took possession of the premises mentioned in the complaint in this action, fenced off a portion thereof and let the remainder of said premises to the defendant, James Fogarty, as his tenant, and said Fogarty as such tenant accounted to and with said Linsley for the rental value of said premises to their mutual agreement from time to time, until said Amariah H. Bradner took steps to dispossess said Fogarty, and which course on the part of said Bradner resulted in this suit
“Eighth. That said Amariah H. Bradner during the pendency of this action made a general assignment to William Bichardson, and thereafter died. That said William Bichardson as such assignee was, by an order duly made, substituted as plaintiff in this action.
“Ninth. That said Amariah H. Bradner never executed and delivered any deed or conveyance of said premises to said Linsley nor to any one for him, nor has any deed or conveyance ever been delivered.
Tenth. That said Martin F. Linsley from the time he took possession of the premises mentioned in the complaint, as herein-before found, has at all times since been in continual occupation of- the same, either by himself or his tenants.
Eleventh. That the defendant, James Fogarty, hired and leased said premises of Martin F. Linsley, upon his own behalf and of no other person.
“ Twelfth. That before this action was commenced in the justices’ court, said Amariah H. Bradner caused a notice to be served on-the defendant, in which he claimed to be the owner of said premises, and. thereafter Fogarty refused to pay rent until he knew to whom, -to pay it. That he afterwards paid the rent money to Linsley, or for his benefit, and took Linsley’s bond of indemnity.
Thirteenth. That at or before the joinder of issue before said justice, said Linsley promised the defendant that he would take care of said suit, and employed counsel for that purpose.
“ I further certify and find as a fact established before me on the trial of this action that the title of real estate came in question.
“ From the foregoing facts I find and decide:
“First. That the premises mentioned, in the complaint were at all times set forth in the complaint, owned by one Martin F. Linsley, and that the defendant occupied the same as the tenant of said Linsley as such owner.
“Second. That said defendant became and was indebted to said Martin F. Linsley for rent, use and occupation of said premises and to no other person.
“Third. That the defendant is entitled to judgment dismissing the complaint in this action, with costs to be taxed, which are hereby awarded to the defendant, and I direct judgment to be entered accordingly.
“ Dated April 18, 1890.”

The referee’s findings were warranted by the evidence. Numerous exceptions were taken and many requests to find were made, all of which have been carefully considered, but no error has been discovered which would warrant a reversal.

The judgment must be affirmed.

Judgment affirmed,'with costs.

Dwight, P. J., and Macomber, J., concur.


text:
    William S. Patterson and Jerome J. Patterson, Resp’ts, v. Joseph H. Delaney, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    Attachment—Affidavit.
    An affidavit for an attachment stated an indebtedness on contract over and above all counterclaims known to the plaintiffs; that defendant was a resident of the state, and stated positively that he had left the county suddenly and clandestinely; that he employed help to assist him in the removal of his household goods to a railroad station to be shipped to Boston, and the help were then actively employed in packing the goods. Held, in the absence of counter affidavits, sufficient to uphold an attachment.
    Appeal from a judgment of the Grenesee county court, affirming a justice’s judgment.

      William E. Prentice, for app’lt; E. A. Washburn, for resp’ts.
   Corlett, J.

In July, 1890, the plaintiffs commenced an action in a justices’ court in the county of Grenesee against the defendant, and an attachment was obtained by them. The summons was served as last provided in § 2910 of the Code of Civil Procedure. The affidavit upon which the attachment was issued was as follows:

" Jerome J. Patterson being duly sworn deposes and says that he is one of the plaintiffs above named; that the above named defendant is justly and truly indebted to the above named plaintiffs in the sum of $15.75 and interest thereon from February 11, 1889, for one photograph album and one easel purchased by defendant of plaintiffs, December 24,1889, and by plaintiffs sold and delivered to said defendant respectively of the value and at the agreed price of $5.50 and $4.25, for which the defendant agreed to pay, and for the sum of six dollars cash loaned defendant- by plaintiffs on or about February 11,1890, upon defendant’s express promise to repay the same, no part of which has been paid, and that the plaintiffs are entitled to recover said sum over and above all counterclaims known to deponent. That the defendant being a natural person and a resident of the state, has departed from the county of Genesee, where he last resided, with intent to defraud his creditors, and that the defendant, being a natural person, is about to remove property from the county of Genesee, where the defendant, being a natural person, last resided, with intent, as deponent is informed and believes, to defraud his creditors. That early in the present month or thereabouts said defendant, who was then a resident of said county of Genesee and was employed as a clothing cutter by a firm of clothing merchants in Batavia, in said county, left said, county suddenly and clandestinely, leaving, as deponent is informed and believes, a large number of unsatisfied debts other than that of plaintiffs; that said defendant is now reputed to be somewhere in the city of Boston, Mass., and that he has sent to Batavia aforesaid and employed help to assist in the removal of his household goods to a railroad station in which to have them shipped to Boston aforesaid, and said help are now employed in packing said goods with intent so to assist in their removal and shipment.”

On the return day the defendant appeared by attorney and moved to vacate the attachment upon the ground of the insufficiency of the affidavit and the constable’s return. The latter was amended, the court denied the motion, judgment was entered for the plaintiffs, the defendant appealed to the Genesee county court, which affirmed the justice’s judgment, and the defendant appealed to this court.

The affidavit shows an indebtedness arising upon contract in favor of the plaintiffs and against the defendant, for about twenty-one dollars over and above all counterclaims known to deponent. Also, that the defendant was a resident of the state and had departed from the county of Genesee, where he last resided, with intent to defraud his creditors. It states positively that the defendant was a resident of Genesee county and was employed as a clothing cutter by a firm of merchants. That early in February he left the county suddenly and clandestinely; that he was indebted to the plaintiffs in the sum set forth in the affidavit; that he sent to Batavia and employed help to assist him in the removal of his household goods to a railroad station in order to have them shipped to Boston, and the help at the time of making the affidavit were actively employed in packing the goods. Those allegations are stated positively. Some other statements in the affidavit were made upon information and belief.

The defendant’s contention on this appeal is, that the affidavit was not sufficient to authorize the issuing of the attachment. Under § 2916 of the Code, the defendant might have made proof by affidavit or otherwise to vacate the attachment. He chose to rest upon the papers upon which it was granted.

In Pierson v. Freeman, 77 N. Y., 589, it was held that “ where in an affidavit upon which an order of arrest is granted the facts are stated positively, not on information and belief, are not denied or disputed by defendant when opportunity is afforded, and the facts alleged are not such that the affiant could not by any possibility have sufficient knowledge of to verify, an appellate court, sitting in review of the order, may take the facts as stated.”

To the same effect is James v. Richardson, 39 Hun, 399, which was an attachment case, and the court held “that statements in the affidavits will be presumed to have been made on personal knowledge unless stated to be on information, or unless it appeared affirmatively or by fair inference that they could not have been or were not made on such knowledge.”

The positive statements in the affidavit in the case at bar might have been within the personal knowledge of the affiant.

Those cases, in connection with the doctrine established in Jaffray et al. v. Nast et al., 32 N. Y. State Rep., 250; Leiser v. Rosman, id., 739; Davis v. Fleming, 18 N. Y. Wk. Dig., 460-461; Schoonmaker v. Spencer, 54 N. Y., 366, where it was held to be the uniform practice in reviewing proceedings before a justice of the peace to sustain them if possible by every reasonable and warrant-able intendment; and Mayor v. Genet, 4 Hun, 487; affirmed 63 N.Y., 646, show that the affidavit was sufficient to confer jurisdiction.

The learned counsel for the appellant, also, insists that the goods were exempt, and, therefore, not liable to be attached. Exemption is an affirmative defense, and there is nothing in the record showing or tending to show that those goods were exempt.

It follows that the judgment of the county court must be affirmed.

Judgment affirmed, with costs.

Dwight, P. J., and Macomber, J., concur.


text:
    John Paine, Resp’t, v. The City of Rochester, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    Negligence—Highways.
    While traveling on one of defendant’s streets plaintiff’s horse became frightened by a steam roller which was being operated thereon. A man. seventy-six years old who was there for the purpose of protecting travelers from injury by the roller seized the horse", but was thrown down, and plaintiff and his wife were thrown out and the buggy and other property injured. In an action to recover for such injuries, Reid, that a motion " for nonsuit was properly denied.
    Appeal from a judgment of the county court of Monroe county, entered upon the verdict of a jury.

      Henry J. Sullivan, for app’lt; Eugene Van Voorhis, for resp’t.
   Corlett, J.

The action was originally brought in a justice’s court of the town of Greece, Monroe county, to recover damages for injuries to the plaintiff’s horse and buggy, and some other articles of property. The justice rendered judgment-for the plaintiff for $200 damages. The defendant appealed to the county court of Monroe county for a new trial, which was had, and resulted in a verdict of like amount. Judgment was entered, and the defendant appealed to this court.

The plaintiff resided in the town of Greece, and on the 26th day of June, 1889, his wife and himself started with a horse and buggy to go to Rochester, where they intended to take a train for Canandaigua to attend a wedding. When they reached Lake avenue, which is one of the public streets of the city, there was a heavy steam roller, operated by steam, being used to level the street. The engine was from twelve to twenty feet in length, and puffed considerable steam when in use. The plaintiff’s horse became frightened. A man seventy-six years of age was upon the street for the purpose of protecting travelers from injury by the engine on the day of the accident. He seized the plaintiff’s horse, but was thrown down, the horse ran away, and the plaintiff and his wife were thrown out and the buggy and other property injured.

The evidence tended to show that the defendant was guilty of negligence in keeping the engine in motion when the plaintiff's horse was approaching; also, in omitting to provide proper signals and protection, and in keeping a man inadequate, by reason of age, to perform the duties required.

It also tended to show that the plaintiff was guilty of no negligence which contributed to the injury. He had a right to travel on the street and assume that it was in proper condition. Pettengill v. City of Yonkers, 116 N. Y., 558; 27 N. Y. State Rep., 531.

At the close of the evidence a motion was made for a nonsuit, which was properly denied. No exception was taken to the charge of the trial court, which was full and clear on every material question.

The case was properly submitted to the jury, and no errors appearing, the judgment must be affirmed.

Judgment affirmed, with costs.

Dwight, P. J., and Macomber, J., concur.


text:
    Albert A. Jarvis, Resp’t, v. Joseph Benedict et al.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    Interpleader—When order oe proper.
    Plaintiff was employed by defendant Benedict to obtain some property of an estate in which he was interested, and was successful, the executor, on his accounting, being directed to pay a certain sum to Benedict, who had drawn a draft on the executor in favor of a bank, which draft had been accepted by the executor but not paid when this action was brought by plaintiff, who claimed a lien on the fund for his services. Held, that an order interpleading the bankers in place of the executor was properly granted.

      Appeal by the defendants from an order of the special term of Monroe county.

      Edward Lewis, for app’lts; W. F. Jenks, for resp’t.
   Corlett, J.

In June, 1888, T anny S. Benedict died leaving a will by which she gave her p’".perty to legatees. Joseph Benedict was not one of them. U was a relative of the deceased and as such entitled to a third of - ,e personal property, which the will did not otherwise dispose >L The will was admitted to probate, and the defendant, Her y T. Dunham, was appointed executor. The defendant, Benedict, employed the plaintiff, who was an attorney, to assist him in obtaining some of the property of the deceased The advice of the plaintiff was to the effect that the bequests were invalid. A contest ensued which resulted in favor of the plaintiff’s contention. He claims to have necessarily disbursed in the proceeding $147.87, and that his services were worth $492.76, to recover which this action was brought. He also claimed that there came into the executor’s hands money to the amount of $1,478.28, which belonged to the defendant, Benedict. Upon the final accounting of the executor in September, 1890, a decree was made by that court adjudging that this sum belonged to Benedict and should be paid to him as his distributive share of the estate.

On the 4th day of April, 1890, Benedict drew his draft or order on Dunham, as executor, for the sum of $1,000, payable to the order of A. D. Mather & Co.’s bank. The same was accepted by Dunham, but before the money was paid to the bank this action was commenced, the plaintiff asking for a decree adjudging that he had an attorney’s lien upon the share of Benedict to the amount of $640.63, the alleged value of his services and disbursements. The plaintiff, at the same time, served a notice of the lien upon Dunham and forbid his paying the money to Benedict. Dunham then made a motion which resulted in the order appealed from, which was as follows:

“ On reading and filing notice of this motion, the affidavit of the defendant, Henry T. Dunham, verified on the 3d day of October, 1890, and a copy of the plaintiff’s complaint thereto annexed, and on proof of due service of the notice of motion on the plaintiff, defendant Benedict, and A. D. Mather & Oo.’s bank, .•and after hearing W. F. Jenks of counsel for defendant Dunham, and on reading and filing the affidavits of J. Benedict and Charles W. Mather, and after hearing Mr. E. Lewis for defendant Benedict and for A. D. Mather & Co., and Mr. Gr. F. Yeoman for plaintiff:
“ Ordered, that on payment by the defendant, Henry T. Dun-ham, to the clerk of the county of Monroe of the sum of $1,238.28, within ten days from the entry of this order, less ten dollars costs of this motion, Charles W. Mather and Joshua Mather be substituted as party defendants in this action in place of Henry T. Dunham, and that thereupon said Henry T. Dunham both individually and as executor of Fanny S. Benedict, deceased, be discharged from liability either to the plaintiff herein, or to the defendant Joseph Benedict, or to said A. D. Mather & Co., and that the plaintiff, if so advised, be at liberty within twenty days from the entry of this order to serve upon said substituted defendants, the summons and complaint in this action.
“And it is further ordered that if the said Charles W. Mather and Joshua Mather do not appear and defend this action within twenty days after service of this order, together with a copy of the summons and complaint as aforesaid, the plaintiff may apply on eight days notice for an order that the amount of his claim as stated in the complaint herein may be paid to him from the moneys so deposited, and that the balance of said moneys be paid to A. D. Mather & Co.'s bank.”

The sum named in the order was the amount which remained in the executor’s hands. Dunham held the money in controversy as executor. After the surrogate’s final decree this controversy arose, and the executor was compelled either to pay the money according to the surrogate’s decree or obtain the direction of the court as to what he should do with it. The plaintiff in this action was not a party to the proceedings or decree in the surrogate’s court. Section 820 of the Code of Civil Procedure provides for proceedings such as resulted in the order.

In Crane v. McDonald, 118 N. Y., 648; 30 N. Y. State Rep., 98, it was held that where a person without collusion is subjected to a double demand for money, and it fairly appears that there is a substantial controversy, the person who is holding the fund may resort to interpleader. The plaintiff’s position in this case is analogous. The fact that the surrogate’s court had made a decree before this controversy arose is of no importance. Goodrich v. McDonald, 112 N. Y., 157; 20 N. Y. State Rep., 509.

Such proceedings have often been resorted to and sustained. Dorn v. Fox, 61 N. Y., 264; Dreyfus v. Casey, 52 Hun, 95: 23 N. Y. State Rep., 397.

The order of the special term was properly granted, and must be affirmed.

Order affirmed, with ten dollars costs and disbursements.

Dwight, P. J., and Macomber, J., concur.


text:
    Hugh C. Reid, Resp’t, v. The Town of Ripley, Appl’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    Highways—Negligence.
    While plaintiff was driving along a narrow road in the defendant town, which adjoined a ravine, the horse stumbled on some small rolling stones, and the carriage with its occupants was precipitated over the bank and injured. In an action for such injuries, plaintiff’s evidence tended to show that the road was not guarded at that point; that he exercised caution and care in driving, and that the horse was manageable. Defendant’s, evidence showed that plaintiff was acquainted with the road, and that the-horse was difficult to manage. Held, that the questions of negligence and contributory negligence were properly submitted to the jury.
    Appeal by the defendant from the judgment entered upon a verdict, and an order denying a new trial.

      H. C. Kingsbury, for app’lt; A. B. Ottaway, for resp’t.
   Corlett, J.

In July, 1885, the plaintiff was driving a horse harnessed to a buggy, in which there were two other persons. He was going to the village of Ripley, in Chautauqua county, and took the road that led through what is known as Gage’s Gulf. It was a highway along the bank of a ravine. On the right side there was a sloping, high bank; on the left, a precipitous descent. The plaintiff in driving came to a steep declivity where the road was very narrow. Between the bank and the road-bed there was a ditch from four inches to four feet deep.

At this point the road had been made by cutting down the bank and building up with logs. It was narrow, about nine feet in width. The road-bed had upon it small rolling stones on the surface. These conditions had existed since the building of the road. There was no barricade to prevent a traveler from going over the precipice. As the plaintiff was driving over those stones on the day in question, the horse stumbled, and he, with the occupants of the carriage, were precipitated over the bank, together with the. horse and carriage. The horse’s leg was broken. His estimated value was $150. The carriage was broken, and the plaintiff, including the occupants, injured.

An action was brought to recover damages before a justice of the peace of the town of Mina, Chautauqua county, which resulted in a judgment of $150 for the plaintiff. An appeal for a new trial was taken by the defendant to the county court of Chautauqua county. It was had, resulting in a verdict for a like amount. A motion for a new trial was made and denied, and the defendant appealed to this court.

The evidence on the part of the plaintiff tended to show that the road at the point of the accident was not guarded on its sides, or in any way protected; also, that the plaintiff in driving exercised caution and care, and that the horse was manageable. The testimony on the part of the defendant tended to show that the plaintiff was well acquainted with the road, and that the horse was difficult to manage.

The evidence as a whole required its submission to the jury, both on the question of the defendant’s negligence and the contributory negligence of the plaintiff. No exceptions were taken, and the sole question presented here is one of fact. The whole subject has been recently considered in this court. Fay v. Town of Lindley, 33 N. Y. State Rep., 539 ; 11 N. Y. Supp., 355.

It was also considered in Ivory v. Town of Deerpark, 116 N. Y., 476; 27 N. Y. State Rep., 643, and Holcomb v. Town of Champion, 12 N. Y. Supp., 882 ; 36 N. Y. .State Rep., 759.

The order and judgment must be affirmed, with costs.

Dwight, P. J., and Macombeb, J., concur:


author: Dwight, P. J.

text:
    Stephen D. Burritt, Resp’t, v. Allen Sheffer, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    'Chattel mortgage—Given as continuing security for advances, covers SUBSEQUENT ADVANCE THOUGH OTHER SECURITY BE ALSO GIVEN.
    A chattel mortgage given to secure payment of a note and as continuing security for notes thereafter due to or endorsed by the mortgagee covers a note subsequently given to or endorsed by him, and the fact that other security was also taken for the note does not, of itself, exclude it from the benefit of the security first given.
    Appeal by the defendant from a judgment of the county court of Monroe county, and from an order denying the defendant’s motion for a new trial on the minutes of the court, in an action commenced in a justice’s court and appealed to the county court for a new trial.

      W. S. Hubbell, for app’lt; George D. Forsyth, for resp’t.
   Dwight, P. J.

The action was to recover damages for the alleged wrongful taking of a quantity of household goods. The defendant justified under a chattel mortgage executed to him by the plaintiff, which covered the goods in question. The question tried was whether any debt or obligation was due or owing from the plaintiff to the defendant, or any liability of the defendant for the plaintiff was outstanding, for the payment of which'the mortgage was given as security. The mortgage, dated April 16,1886, was, by its terms, given as security for the payment of a .note of fifty dollars, endorsed by the defendant for the plaintiff, and also-as continuing security, to the extent of $100 at any one time, for the payment of any other notes or obligations which should thereafter be due to the defendant or endorsed by him for the plaintiff. The fifty-dollar note, after being once renewed, was paid October 16, 1886. In the meantime, August 14, 1886, the plaintiff had given the defendant another note for $150, which was then outstanding, either in the hands of the defendant or endorsed by him, and was secured by another chattel mortgage on other property. It was for the collection of the last mentioned note, which had been several times renewed, that the property in question was seized by virtue of the first mentioned chattel mortgage, May 10, 1888.

The contention of the plaintiff is that the first mortgage was satisfied by the payment of the fifty dollar note, and was no longer security for any subsequent indebtedness or endorsement This contention, on the trial, seems to have been based upon what took place between the parties at the time the fifty dollar note was paid. The plaintiff’s testimony in that respect was as follows: “ On the 16th of October, 1886, I went up and paid Mr. Sheffer fifty-one dollars, and I said to him, ‘Will you discharge this mortgage?’ He says, ‘Why, all you want is this receipt,’ and. this receipt (in evidence) was made out at the time the note was paid.

“Q. Was there anything said by you at anjr time in reference to that mortgage ? A. No, sir; it was never mentioned; the fifty dollar mortgage.”

He subsequently testified that after he had commenced this action, the defendant, in speaking to him of his having done so, said: “You supposed this mortgage was discharged, but it was part of my cuteness that it was not.”

It is very plain that there was nothing in this evidence to warrant the jury in finding that there was an agreement, even, to discharge the mortgage, and if there had been it would have been ineffectual for want of consideration. There is no pretense that the plaintiff paid anything more than was actually due at the time on the fifty dollar note. And so the learned county judge held. He withheld entirely from the jury the question whether there was any such agreement at the time of the payment of the fifty dollar note, charging that the mortgage was not to be deemed satisfied or discharged by that payment, “ even though they should find that the parties said so at the time.” The question submitted to the jury was limited, by repeated and careful instructions, to what took place at the time the second note and mortgage was given, viz.: whether at that time it was agreed and understood between the parties that such mortgage should stand as security solely for the note which it accompanied. Undoubtedly if such an arrangement had been made at that time and as part of the transaction of which the giving of the new security was also a part, it would have been supported by a sufficient consideration, and the payment of the first note would have satisfied the first mortgage. But we are at a loss to see where the learned county judge found in the evidence, if correctly and fully presented in the record before us, any evidence to sustain such a theory of the case. There seems to us to be none.

The plaintiff’s own version of the transaction in reference to the $150 note and mortgage is as follows: “After I got acquainted with Mr. Sheffer I told him that Hirschfield & Farrar had a mortgage against me for $150, * * * and I said ‘ if you want to. carry this, you can go up and get this of Hirschfield & Farrar,’ and he did go and get it and took a copy of it, and that was the transaction in regard to this note of $150, and that was renewed every three months down to the last renewal.” And the undisputed evidence oh the part of the defendant is that after he obtained the note and mortgage from Hirschfield & Farrar, the plaintiff substituted for them a new note for the same amount, payable to the order of the defendant, and a new mortgage covering the same property as that embraced in the mortgage to Hirschfield & Farrar, which, as we have seen, was property distinct from that embraced in the first mortgage to the defendant.

We find in the case no evidence from which the jury was warranted in finding that any agreement or understanding existed between the plaintiff and defendant which had the effect to defeat the first mortgage as a continuing security, which it was by its terms, for any indebtedness or liability, to the extent of $100 at any one time, of the plaintiff to the defendant, incurred subsequent to the date of its execution.

The second note, to the extent of $100, was plainly included in the terms of the first mortgage, and the fact that other security was also taken for the note, does not, of itself, exclude it from the benefit of the security first given. Such being the case upon the evidence received on the trial under review, there was error in the refusal of the court to nonsuit the plaintiff, and in the denial of the defendant’s motion for a new trial.

The judgment and order appealed from should be reversed, and a new trial granted.

Judgment and order reversed and a new trial granted, with costs to abide the event.

Macomber and Corlett, JJ., concur.


author: Macomber, J.

text:
    Adam Sander, Resp’t, v. Charles Harris, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    Service—Exemption .
    To entitle a foreign witness or party to exemption from the service of process, it must appear that he came from without the state voluntarily on the occasion of the proceeding which he was attending and for the purpose of attending it.
    Appeal from a judgment of the county court of Cattaraugus county, entered August 13, 1890, affirming a judgment of a justice of the peace.

      Inman & Cook, for app’lt; T. H. Dowd, for resp’t.
   Macomber, J.

This action, which was brought before a justice of the peace to recover the balance of an unpaid meat bill, resulted, on the 10th day of April, 1890, in a judgment in the plaintiff’s favor of $15.70, including costs.

The summons was served on the 2d or 3d day of April, 1890, by a constable of the town of Salamanca,' N. Y. No answer was interposed by the defendant, and no general appearance was made by him. He, however, appeared by counsel specially in this case, and claimed that the action should not have been begun against him, and that the service of the summons was irregular because of the defendant’s exemption from the service thereof.

The objection to the irregularity or illegality of the service of the summons was timely made, and nothing was done by the defendant to waive his exemption, if such exemption could be claimed by the defendant under our law within the facts ■disclosed. The only question, therefore, is whether the defendant in his affidavit (for there was no opposing affidavit made in behalf of the plaintiff), has brought himself within the rule so well recognized in our courts, that the due administration of justice and decent regard for the rights of sojourners in our state should not permit the service of civil process upon them while called to and engaged in this state in the prosecution or defense of other actions in which they are parties or material and necessary witnesses; as is held in Matthews v. Tufts, 87 N. Y., 568; Thorp v. Adams, 33 N. Y. State Rep., 797, and cases there cited.

The defendant’s affidavit, in full, is as follows:

“ Charles Harris, being duly sworn, deposes and says that the annexed summons was served upon deponent in the village and town of Salamanca, aforesaid, at about the hour of eleven A. M. and not later than the hour of twelve noon of the 2d day of April, 1890. Deponent further says that he now is and for the past year and upwards has been a resident of the city of Jersey City in the state of New Jersey, and that deponent for the past year and upwards has not been a resident of the state of New York. Deponent further says that at the time of the service of the aforesaid summons deponent was in attendance before S. H. Seymour, Esq., a justice of the peace of the said town of Salamanca, as a witness in his own behalf in an action then being prosecuted in the name of the People of the State of Hew York against this deponent, and before the conclusion of the said action and while deponent was in the custody of a constable of the aforesaid town of Salamanca, and while deponent was under arrest for and upon the charge of being a disorderly person. Deponent further says that he came to said town of Salamanca for the sole and only purpose of appearing in said action and as a witness in his own behalf, and while deponent was at said town of Salamanca as such party and witness, and before the conclusion of said action and before deponent could get a train to go to his home, deponent was served as aforesaid with said summons.”

It may safely be assumed, in the absence of any evidence to the contrary, that the defendant was not brought into this state by any requisition for the purpose of standing a trial as a disorderly person. There is no allegation that he was so brought into the state, or that any criminal charge was made against him for the purpose of getting jurisdiction of his person in a civil action. The fatal omission in the affidavit is the failure of the defendant to furnish any evidence that he came into this state voluntarily to stand a trial as a defendant in the criminal action before the special sessions under the charge of being a disorderly person. He says that he came to the town of Salamanca for the sole and only purpose of appearing in said action and as a witness in his own behalf. But he does not state that he came from Hew Jersey for that purpose. For ought that appears he was within the state before and at the time the criminal complaint was made against him.

The assertion in his affidavit that he had not been a resident of the state of Hew York for upwards of a year, comes to nothing, in the absence of an allegation that his presence here was accounted for by reason of some legal proceedings in our courts in which it was proper for him to attend either as a party or as a witness in the furtherance of justice. If the defendant was voluntarily within the state on private business, other than attending trial as a party to a litigation, or appearing as a witness in the courts of this state, or in other judicial proceedings, he cannot claim the exemption here attempted to be set up. The presumption is that the service of process was regular, and the defendant has failed to overcome that presumption by proof.

Judgment appealed from should be affirmed, with costs.

Dwight, P. J., and Corlett, J., concur.


author: O’Brien, J.

text:
    Edwin Weltin, App’lt, v. The Union Marine Ins. Co., Limited, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    Pleading—Insurance (marine).
    Where a suit is brought to recover on a policy of insurance or certiflcates covered thereby, it is not sufficient to allege in the complaint that a policy was issued and a loss sustained, but it should be averred that the policy or certificates covered the precise loss which occurred and were still binding and in force when the loss occurred. In the absence of such allegations an averment that there was “ a loss on so much of the cargo damaged as aforesaid, which was covered by the certificates aforesaid ’’ is a mere unsupported conclusion.
    Appeal from interlocutory judgment, sustaining demurrer to complaint
    This action was brought on a contract of marine insurance made by the defendant with one Staenglen, to protect and cover the latter’s interest in a cargo of cotton to be shipped from Galveston, Texas, to Cronstadt, Russia.
    The complaint simply alleged that defendant issued certificates covering and intending to cover the owner’s interest in said cotton; that they were issued under a certain policy and were intended to convey all the rights of the original policy holder; that upon arrival at Cronstadt the cargo was discharged by means of lighters, as was customary, and that one of the lighters took fire and so much of the cargo as was upon it was damaged. The complaint did not state the terms of either the certificates or policy.

      DeL. Benner, for app’lt; Lewis Cass Ledyard, for resp’t.
   O’Brien, J.

The objections to be found with the complaint are that it is nowhere stated therein what risks were insured against nor whether the policy of insurance represented by the certificates was a true policy or a voyage policy.

What is required in a pleading is a brief statement of facts showing a cause of action. These though imperfectly, informally or argumentatively averred, or though the pleading be indefinite or uncertain, such defects do not render the pleading obnoxious to demurrer. Where, however, as here, a suit is brought to recover on a policy of insurance or certificates covered thereby, it is not sufficient to aver in a complaint that a policy was issued and a loss sustained.

Insurances are of various kinds and many different forms of policy are in use covering very different risks.

Here none of the terms of the policy or of the certificates are given.

Is it not clear that in order to recover it must be proved that the policy or certificates were in force at the time of the loss and that the agreement was to pay such loss as occurred ?

No promise to pay any loss is alleged nor is any description of the perils insured against given. There is a single conclusion stated in paragraph 8 of the complaint, that “ there still remains a loss on so much of the cargo damaged as aforesaid which was covered by the. certificates aforesaid.”

Assuming the language “ which was covered ” to refer to the loss and not to the “damaged cargo,” and giving to “covered” the broadest signification as a concise mode of stating “that the loss sustained was one against which the assured’s interest was protected,” the objection still remains that in the absence of any statement of facts showing the terms or conditions of the policy or certificate this is a mere unsupported conclusion and one which by the most forced construction only can be tortured into an allegation that the loss was one insured against.

Admitting every fact distinctly alleged or that by reasonable and fair intendment can be implied, there is still an absence of the averments essential to plaintiffs’ cause of action, viz.: that the policy or certificates covered the precise loss by fire and water, or that when the loss occurred the policy and certificates were still binding and in force.

The conclusion reached by the trial judge justified the judgment sustaining the demurrer and it should be affirmed, with the costs and disbursements of this appeal, but with leave upon payment thereof and the costs of the demurrer in the court below to serve an amended complaint.

Van Brunt, P. J., and Daniels, J., concur.


author: Van Brunt, P. J.

text:
    Max S. Korn, Resp’t, v. The Metropolitan Elevated Railway Co. et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    1. Railroad—Elevated—Parties.
    The owner of the record title of abutting property may maintain an action in his own name to restrain the operation of an elevated railroad in front of said premises, and what private arrangements he may have with other parties is a matter of no consequence to the defendant proceeded against.

      2. Same—Contract of sale.
    Plaintiff’s right of action is not affected by the fact that before the trial he had entered into a contract for the sale of a portion of the premises.
    3. Same—Evidence.
    In an action to restrain the operation of an elevated railroad and for damages, a witness was allowed, under objection, to answer the question, “ What in your opinion is the value of that property including the easement in * * * avenue which would give to the property the use of the whole street above the surface? ” Held, no error.
    Appeal from judgment of special term enjoining defendants from maintaining and using their elevated railroad in Second avenue in front of certain premises unless they pay to the plaintiff the sum fixed for the conveyance thereof, and granting plaintiff judgment for loss of rental value, etc.

      E. C. James, for app’lts; J. E. Burrill, for resp’t.
   Van Brunt, P. J.

The first objection presented upon this appeal is upon fact action is brought by Max S. Korn, in whose name the title stood, and that Isidor S. Korn, who is his partner in the real estate transactions, was not joined therein as plaintiff or defendant.

Upon the trial this objection was taken, and upon it being ruled that such an objection could only be availed of by answer where it did not appear upon the face of the complaint, a motion was made to amend the answer, which motion the court denied upon the' ground that it was too late. We think, even if it was necessary to pass upon that question, that the rulings of the court in this particular were entirely correct. There was no merit in the motion to amend and no reasonable purpose to be subserved thereby except delay, and therefore there was no reasonable ground for its being granted.

But we had supposed that since the decision in the case of Sheridan v. Mayor, 68 N. Y., 30, the party who was the owner of record or by a written instrument of premises or of a cause of action may maintain in his own name, as being the real party in interest, actions in relation thereto, and what private arrangement he might have outside of his paper title was a matter of no consequence to the defendant proceeded against.

The next objection necessary to consider is the fact that as to a portion of these premises the plaintiff had entered into a contract of sale intermediate the commencement of the action and the trial thereof, which contract was not completed, however, prior to the time of the trial.

That the court was entirely right in its statement that a mere contract of sale is not a sale seems to be established by the case of Mitchell v. Bartlett, 52 Barb., 319, affirmed 51 N. Y., 447, where it is held that a purchaser upon a foreclosure sale acquires no title until the delivery of the deed. In sales of that description, and as was the fact in the case cited, a contract of sale was entered into between the referee and the purchaser precisely of as valid a nature as the contract entered into between the plaintiff in the case at bar and his purchaser, and it was distinctly held in the case cited that until the delivery of the deed the purchasers did not acquire any title, neither were-they entitled to the possession. of the land or the rents thereof, although he was charged with interest upon his purchase money because he did not take the deed when it was ready for him.

This principle was approved in Cheney v. Woodruff, 45 N. Y., 98.

The only other question presented upon this appeal is that relating to an objection to a question which was put to an expert by the court. It was as follows :

“ What in your opinion is the value of that property including the easement in Second avenue, which would give to the property the use of the whole street above the surface?”

This question was objected to upon various grounds and was overruled and the question answered.

It is claimed that under the rule laid down in McGean v. Manhattan R. Co., 117 N. Y., 219 ; 27 N. Y. State Rep., 337, the objection is well taken.

We do not think that the question conflicts with any rule laid down in that case. We know of no means of proving damages in cases of this description except by evidence of this character, and if such evidence is to be excluded then there is no basis whatever for proof upon which a recovery may be founded in these actions.

It certainly could not have -been intended by the court of appeals to shut out all testimony tending to prove the value of the easement which was taken, by anything that was said in the case ■cited.

The case of McGean v. Manhattan Ry. Co. was an action at law to recover past damages, and the rules of evidence applicable to such a case do not necessarily control the course of testimony in an action in equity where the defendants are asking the court to determine what in good conscience they should pay in order to avoid the injunction which the plaintiff shows himself to be entitled to.

It seems to us that in the consideration of these questions of evidence in cases of this description that, as far as the fixing of damages is concerned, it is not the request of the plaintiff that is being considered, but it is the prayer of the defendant that it might be allowed to avoid the injunction by the payment of a certain sum; and the question is, what in good conscience is the sum which these defendants should pay in order to avoid the operation of the injunction. Clearly upon such an investigation the harsh and rigid rules of evidence in actions at law canndt apply, and, even if they did, we think that the question under consideration would be allowed even in an action at law for the purpose of establishing what had been the injury sustained in the past by reason of the trespass which the defendants had committed.

The judgment should be affirmed, with costs.

Daniels and O’Brien, JJ., concur.


author: Daniels, J. (dissenting.) Van Brunt, P. J.

text:
    Franziska Harris, Resp’t, v. The Mutual Ins. Co., Impl’d, Appl’t.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    Poor person—Leave to sue as—Attorneys.
    While the court has power to allow a non-resident to sue as a poor. person, such leave should not be granted except in a reasonably clear case, and the attorney making the application should not be assigned as counsel except in exceptional cases, and then only where it appears that the person seeking the leave knows that the counsel assigned is bound to act without compensation, and the counsel certifies that he will so act.
    (Daniels, J., dissents.)
    Appeal from an order denying a motion to vacate an order allowing the plaintiff to maintian this action as a poor person, and also denying a motion to vacate an order relieving her from an order to file security for costs.

      Julien T. Davies and Edward Lyman Short, for app’lt; Christopher Fine, for resp’t.
   Daniels, J. (dissenting.)

The petition presented by the plaintiff for leave to prosecute this action as a poor person contained all that has been required for that purpose by § 459 of the Code of Civil Procedure. But it appeared that she was a resident of the city of Chicago, in the state of Illinois, and for that reason it has been urged that she was not within this privilege as it has been created by the statute. But the section preceding the one just referred to has been made so broad as to include any poor person, and no language has been employed which by any fair implication can be restricted to residents of this state. And no substantial reason for making that distinction appears to exist. To maintain the plaintiff’s action it became necessary for her to resort to the courts of this state. The defendant is a corporation organized and carrying on its business under the laws of this state. And if the plaintiff is to secure any redress whatever by an action in her favor, it must be by means of a suit prosecuted against the defendant in this state. And to all such actions the provisions of the Code upon this subject appear to extend. And no solid distinction can be made between the rights or merits of a claimant residing within this state and those presented by a resident of another state obliged to resort to the tribunals of this state for redress and indemnity. But all such cases appear to stand upon the same-meritorious ground where the plaintiff is not financially capable of commencing and prosecuting the action otherwise than as a poor person. This subject was considered in Heckman v. Mackey, 19 Abb. N. C., 394, by the United States circuit court for the southern district of New York. And it was there held that no such distinction as the defendant’s counsel have now insisted upon can be maintained under the language of the statute. And under a similar law in the state of North Carolina the same construction was deemed to be both required and justified. Porter v. Jones, 68 N. C., 320.

And the decision which was then made was in part placed upon subd. 1 of § 2, art. 4 of the constitution of the United States, declaring that: “ The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” Cases have been decided by the special terms in which this distinction has been approved, but they do not stand upon the application of any such rules of construction as should commend them to the adoption of this court. On the contrary the two decisions which have already been mentioned are more consistent with the language of the law and the remedy intended to be provided by it, and should be followed in preference to the other cases which have been decided under these provisions of the statute.

The plaintiff previously brought an action for the same relief in the court of common pleas of the city of New York, and it was there dismissed upon the facts set forth in her complaint. But, whether this dismissal will constitute a bar to the present action, does not sufficiently appear from the affidavits presented upon the hearing of the motion, as to justify a conclusion adverse to the-plaintiff. It is.stated that the dismissal took place under the authority of Frank v. Mutual Ins. Co., etc., 102 N. Y., 266; 1 N. Y. State Rep., 681. But in that case it appeared that the policy in suit had become forfeited by tile omission to keep up the premium, while in this case that fact does not appear to exist. Whether the plaintiff will be able to maintain her action upon the policy it is not, however, necessary to decide. It is sufficient that no legal obstacle positively appears to stand at the present, time in her way. The case is one, therefore, where the court could properly refuse to vacate the order allowing her to prosecute the action as a poor person. And it followed from that fact that the order .requiring her to file security for costs could not regularly be made or maintained. The order should be affirmed, with ten dollars costs, and the disbursements.

Van Brunt, P. J.

The court undoubtedly has the power to make an order allowing a non-resident to sue as a poor person ; but such an order even in the case of a resident should not be granted except in a reasonably clear case, and where it is reasonably certain that the process of the court will not be abused, and it may well be doubted whether the case at bar falls within that category; but the court should not assign as counsel the attorney making the application except in exceptional cases and then only where it clearly appears that the party seeking to sue as a poor person knows that the counsel assigned is bound to act in the action without compensation and where the counsel certifies to the court that he will so act, and that no charge or claim for counsel fees by anybody will be made.

In most cases, however, in order to prevent abuses a person entirely disconnected with the proceeding should be appointed, who will see that improper use is not made of the privilege granted.

I think, therefore, that the order appealed from should be reversed, with leave to the plaintiff to make a new application.

O’Brien, J., concurs.