author: Davis, P. J.: Davis, P. J.:

text:
    HENRY W. HUBBELL, Respondent, v. THE GREAT WESTERN INSURANCE COMPANY, Appellant.

      Policy of insw'cmae —■ right of alamdonment — acceptance of.

    The plaintiff took out policies of insurance upon a ship and cargo owned by him, and also procured one to be issued to him by the defendant upon the freight. The latter policy provided that “ no claim for total loss shall be made * * * except in the case of * * * an actual or technical loss of the vessel under the policies of insurance on her.” The vessel was wrecked at a short distance from her port of destination, and both vessel and cargo abandoned to the underwriters, including defendant, who took possession of the ship and succeeded in transporting a portion of the cargo to the said port, where it was sold and the proceeds arising thereon distributed among them.

      An abandonment of the freight was also made, but the same was not accepted by the defendant. Reid, that the plaintiff had the right to abandon the freight, and that the defendant was liable under the policy for a total loss thereof, and that his right so to do was not affected by the fact that the underwriters succeeded in transporting a portion of the cargo to the port of destination and there disposing of the same.

      The Búfalo Gity Bcmh v. The Rm'th-western Ins. Go. (30 1ST. Y., 251) followed.
    Where an abandonment has been accepted, the question as to whether or not the loss was a total one is no longer an open one, but where it has not been accepted, the insured must establish by satisfactory proof a state of facts clearly showing his right to abandon.
    Appeajl from a judgment in favor of the plaintiff, entered upon the verdict of a jury.

      Joseph IT. Ohoate, for the .appellant.
    The law is well settled that, as between insured and insurers on freight, the insured, or the master, as representing him, is bound, in case of disaster, to forward the goods to the port of destination, so as to earn the freight, if it is possible to do so; where the freight insured is that which is to be earned under a bill of lading, he has the right to hold on to the goods and forward them for the very purpose of earning his freight; and if he abandons them or lets the shipper take them without paying the freight, it is his own loss, and he cannot throw it on the underwriters of that interest. {Bradhwrst v. The Gol/wmbicm Ins. Go., 9 Johns., 17; Griswold v. The N. Y. Ins. Go., 3 id., 321; Sugg v. The Augusta Ins. cmd Bcmlmig Go., 7 How. [U. S.], 595; Saltas v. Ocean Ins. Go., 14 Johns., 138; Palmer v. Iorilla/rd, 16 id., 348; Howa/rd v. Astor Mut. Ins. Go., 5 Bosw., 38; Ogden v. The Gen. Mut. Ins. Go., 2 Duer, 204; Allen v. The Mercantile Mut. Ins. Go., 44 N. Y., 437; lord v. The H&ptmie Ins. Go., 10 Gray, 109; Scottish Ins. Go. v. Turner, 1 MacQueen’s App. Gas., 334.)

      Hemry I Scudder, for the respondent.
   Davis, P. J.:

This action is brought upon a valued policy of insurance on the freight of the ship Tartar.

The freight was valued in the policy at $25,000. It, as well as the ship and the cargo, belonged to the same owners, and by the policy the loss thereon, if any, was payable to the plaintiff.

The ship was insured for $50,000, valued at $70,000, and of this insurance $10,000 was in the defendant’s company. The cargo was insured for $125,728. The value of the cargo in bond was about $152,000, but about $182,000 in market, after payment of duties. On the 3d of February, 1867, the ship was stranded at Deal beach, about fifty miles from the city of New York which was her port of destination, and became a total loss. On the fifth of February following, the ship and cargo were abandoned to the respective insurers; and these abandonments were accepted by them. The freight (as the jury must be regarded as finding) was at or about the same time abandoned to the defendants, but the abandonment thereof was not accepted. The Coast Wrecking Company, shortly after the stranding of the ship, took possession of her and made efforts to save her and her cargo. This possession was taken at first with the consent of the mastei, but after the abandonment the wrecking company was employed by the underwriters, and acted as salvors and agents. A very small amount in value of the material of the ship was saved, but a considerable portion of her cargo was taken out by the company and carried to New York, where it was sold for the benefit of the several underwriters. The gross value of cargo thus saved was $66,899.63, but out of that sum there was paid $14,165.80 for expenses, and $18,743.38 for salvage, leaving of actual net proceeds of cargo, the sum of $28,115.37. The actual net proceeds for materials saved from the ship after deducting salvage and charges was $2,311.81.

The defendants received their share of the proceeds of the materials saved from the ship. After the abandonment, the plaintiff had nothing to do with the ship or cargo, nor had any one on his behalf. The policy on the freight contained these words: “No claim for total loss shall be made under this insurance, except in the case of loss of more than fifty per cent of the freight on board, and also an actual or technical loss of the vessel under the policy of insurance on her, any savings of freight then on board to be for the benefit of the company, but in ease the vessel is not totally lost, the liability, under this insurance, is not to be greater than the actual loss by the destruction of the freight on board.” The defendants admitted their liability for the freight, on so much of the cargo as was lost and paid the same, but they denied all liability for freight on so much of the cargo as was rescued by the wrecking company in bulk and brought to New York. The right of the plaintiff to make a total abandonment of the freight seems to- be clearly established by the evidence in the case. The ship was both an actual and technical loss, and the defendants accepted the abandonment of the vessel, under the provisions of their policy on her as a total loss. This acceptance by the defendants, and by the other underwriters, of the ship as a total loss, necessarily conceded the absolute inability of the vessel to complete her voyage and deliver her cargo at the port of New York. The abandonment of the cargo as a total loss was accepted by the several insurers of the cargo. These abandonments of ship and cargo, and the acceptance thereof, entitled the abandonees to the possession of the wreck and cargo on board, and to treat the same, or whatever thereof could be rescued by their agents or by salvors, as salvage the proceeds of which should be applied to their benefit. This salvage was carried by the underwriters to the port of New York, not as a continuation of the voyage for the purpose of earning freight fro tcmto, but as salvage to be disposed of and applied in accordance with their respective interests. The plaintiff appears to have been consulted to some extent, in respect to the disposition of the salvage, but the evidence of his connection with it was not sufficient to have justified the jury in finding that he received any portion of it as cargo, delivered from the vessel for the purpose of earning any portion of the freight. But for a single circumstance of distinction, we should regard this case as completely disposed of by The Buffalo City Bank v. The North-western Insurance Co. (30 N. Y., 251). In that case the vessel, cargo and freight all belonged to the same owner, and each was insured in different companies, the defendant being insurer only of the freight lost. The owner made abandonments of the different subjects of insurance to the respective underwriters, which were accepted. The insurers of the cargo sent persons to the wreck, and saved and caused to be brought into port a very large proportion of the cargo, but in a damaged condition. The defendant insisted that the plaintiff was not entitled to recover for a total loss of the freight, but only^w rata upon so much as was wholly lost. The trial court held otherwise, and gave judgment for the whole amount of the freight. The only difference between the facts in that case and the present, is, that the defendants in that case, who were insurers of the freight list, accepted the abandonment.

The Court of Appeals sustained the recovery in that action, holding that the owner having abandoned the freight as a total loss, and the defendant having accepted the same, such acceptance was conclusive upon it, and the plaintiff was entitled to recover the full amount of the freight, and not merely freight pro rata iti/neris. Denio, Oh. J., in the course of his opinion, after alluding to the fact of the acceptance of the abandonment, says: “But I think there was just occasion for abandonment. The vessel became a total wreck at an intermediate point which was not a port, and vessel, cargo and right to freight, were prima facie lost. No freight had been earned, and the vessel which was to have earned it was broken to pieces. If any could have ever been earned, it would not have been in any natural, but in an extraordinary way, as by the owner of the cargo accepting it where it then was, or by getting it to the port in some other way.'

“Abandonment is said to be justified by any thing which, in the course of the voyage, constitutes at that time a total loss. If any thing subsequently occurs, as a rescue in the case of a vessel captured, or the getting the cargo to port in another vessel, it is the good fortune of the underwriters, but it does not affect the legality of the abandonment. (Holdsworth v. Wise, 7 B. & C., 794; 14 Eng. C. L., 355.) ”

He held, also, that the defendants, as insurers of freight, succeeded to all claims for freight which Bruce (the owner) would have had against the owners of the cargo had it been owned by any other person. The precise state of things described in the opinion of the learned chief justice, in that ease, have occurred in this, so far as respects the total loss of the ship and freight at the time the abandonment was made.

The absence of the acceptance of the abandonment of the freight by the defendant, in this case, only leaves open the question whether such abandonment was rightfully and properly made. If it were, the same conclusions attach to it, we think, as though it had been accepted by the defendant. The only difference, as it seems to us, being that where the abandonment is accepted, the question of total loss iSj no longer an open one, but where the abandonment is not accepted the insured is obliged to establish by satisfactory proof, a state of facts clearly showing the right to abandon. That state of facts was in this case clearly proved. The vessel was stranded, and despite all efforts to save her was destroyed by the action of the waves. The abandonment, as a total loss, was accepted by the defendant upon its policy on the vessel. Her cargo was also abandoned as a 'total loss to the underwriters and accepted by them; and salvors, or agents in their behalf, were engaged in an attempt to save so much of it as it might be possible to rescue. Whatever was saved was in a damaged condition, and would have been totally lost, but for the interference of the abandonees, or salvors. Hpon such a state of facts the abandonment of the freight to the defendant was a plain, legal right under the stipulations of the policy. The exigency had arisen upon which, by the terms of the contract, abandonment as a total loss, might be made ; for we think no one can doubt that at the time of the abandonment, both vessel and cargo were justly to be regarded as a total loss, notwithstanding the intervention of subsequent circumstances saved a portion of the damaged cargo. The principles, therefore, which controlled the case of the Buffalo City Bank v. The North-western Ins. Co. (supra) seem to us to be entirely controlling of the present case. The ease under the policy for total abandonment having thus been established, the policy itself provides for the disposition of any savings of freight in a clause which is in these words: “Any savings of freight, then on board, to be for the benefit of the company.” And it was for the defendant, if the abandonees of the cargo succeeded in getting any portion of it into port under such circumstances that there were “ savings of freight,” to see to it that their rights to such savings, under the abandonment, were enforced as against the other abandonees.

They cannot, we think, charge their liability for a total loss, under the policy, by proving that the abandonees of the cargo have applied to their use, such savings of freight; but we, by no means, intend to indicate that upon the state of facts existing in this case, there could be any such claim.

The true rule, on 'that subject, is probably that laid down by Chancellor Kent, in Devy v. Hallett (3 Caines, 16). (See Wallerstein, v. Columbia Ins. Co., 44 N. Y., 208 ; Allen v. Mercantile and Mutual Ins. Co., id., 437.) We are not insensible to the ingenious argument of the learned counsel for the appellant, nor to the embarrassment which some of the points made by him bring into this case, yet the consideration we have been able to give to it, leads us satisfactorily to ourselves, to the conclusion that the judgment of the court below is right and should be affirmed.

Brady and Daniels, JJ., concurred.

Judgment affirmed.

On motion for a reargument made at this term, the following opinion was delivered:

Davis, P. J.:

It is not correct to say that the court, at the close of the charge, withdrew the question of abandonment from the jury. On the contrary, the question was, and was intended by the court to be left to the jury. It was supposed, when the former opinion was written, that the verdict necessarily involved the finding of a formal abandonment. Our attention is called to a request of the plaintiff, made at the close of the charge, which is in these words : “ I ask your honor to charge that if the jury find that there was no formal abandonment of the freight, and they find that no part of the cargo reached .the plaintiff at the port of destination i/n specie, they may still find for the plaintiff, for there was then a total loss of the freight.” The court so charged.” If the jury found, as they may have done, that there was no formal abandonment of the freight, but that no part of the cargo ever reached the plaintiff m specie, it seems to us that the plaintiff would still be entitled to a verdict. The cargo was taken possession of by its abandonees, and by salvors, under such circumstances and for such purposes that its character was changed ; and by the terms of the contract between these parties, the right to freight was transferred to the defendants. Unless some portion of the cargo came to the plaintiff’s hands m specie and as ca/rgo, no freight would be earned entitling defendants to a deduction from its total loss, whatever rights defendants may have had to participate in the distribution of the salvage.

There was no error in charging the request. Ve find no reason to change our views as to the correctness of the verdict and judgment, and wish to add nothing further than to indicate that if the jury found favorably to plaintiff on either of the propositions submitted, to wit, the abandonment or the delivery m specie to plaintiff of any part of the cargo, the plaintiff was entitled to recover.

The motion for reargument should be denied.

Daniels, J., concurred.

Motion denied.


source: Caselaw Access Project

author: Davis, P. J.:

license: Public Domain

text:
    ALGERNON S. SULLIVAN, Public Administrator, and as Administrator, etc., of DOMINIQUE STROMENER, Deceased, Respondent, v. CHARLES B. FOSDICK and others, Executors, etc., of HENRY DELAFIELD, Deceased, Appellants.

      Statute of limitations — money deposited at interest subject, to draft— bu/t'den of proof as to draft — Adminisin'ator with will a/nnexed■ — administers entwe personalty —what assets justify Ms appointment — the appointment eammot be attached, col-lat&rcMy.

    Where money is deposited with any individual, not a hanker, trustee or agent, upon an agreement that he shall pay interest thereon, and that the same shall not he withdrawn except hy drafts, payable thirty days after sight, no presumption of payment arises, nor will the statute of limitations run against the debt, until it is shown that drafts drawn against the said person, in pursuance of the agreement, have been presented and dishonored.
    It rests upon the party claiming the benefit of the statute to show the presentation and dishonor of such drafts.
    In March, 1854, $4,000 was deposited with one D., upon the agreement that he should pay interest thereon at the rate of six per cent per annum, and that the principal should only be withdrawn by drafts payable thirty days after sight. March 7, 1855, D. wrote to the depositor stating that he had credited him with $240, being the interest to March 1, 1855.
    In an action brought by the administrator of the depositor in 1876, held,

    (1) That no presumption of payment arose under the statute of limitations in regard to the $4,000, until the presentation and dishonor of drafts drawn against the same;
    (2) That the letter informing the depositor that the interest due March 1, 1855, had been credited to him, did not have the effect of adding the amount thereof to the principal, so as to cause it to bear interest thereafter, nor did it make that amount then due, so that the statute of limitations would then commence to run against it.
    Where an application is made to a surrogate for letters of administration upon the estate of one who has died in a foreign country, upon the ground that he has left assets in the county of such surrogate, it is sufficient if it appear that the deceased had a claim against a resident of the said county for money deposited with him, even though it should subsequently be shown that such claim was invalid and incapable of enforcement.
    Where a surrogate has issued letters of administration, with the will annexed, upon the estate of one who has died in a foreign country, neither the validity of the will nor the authority of the administrator can be attacked, by one against whom an action is brought to recover a debt alleged to be due to the estate.
    The authority of an administrator, with the will annexed, is not confined to the property disposed of by the will, but it is his duty to collect and administer the entire personal estate within his jurisdiction.
    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe report of a referee.
    Tbis action was brought to recover tbe sum of $4,000 and interest, wbicb sum was deposited by Dominique Stromener with Henry Delafield.
    Tbe Abbe Stromener, a priest, at Jeremie, Hayti, in November, 1853, forwarded to Henry Delafield two drafts amounting to $4,000, upon wbicb Mr. Delafield, in February, 1854, realized that sum.
    It was agreed that tbe moneys should be left in Mr. Delafield’s bands at six per cent interest, to be drawn only as follows: “And when you wish to withdraw them you can draw on me at thirty days’ sight, if that is preferable to sixty days’ sight.”

      On March 1, 1855, Mr. Delafield credited Mr. Stromener with $240, the interest on the above sum to March 1, 1855, and on March seventh advised him thereof by letter.
    Mr. Stromener died in 1856 or 1857, and his death was admitted by Mr. Delafield. He left an olographic will, which was proved, under the laws of Hayti, in 1875, and an exemplification thereof was duly adjudicated upon and admitted to probate by the surrogate of the county of New York, by decree made November 30, 1875. The surrogate of said county also by an adjudication by him duly made granted letters of administration, with the will annexed, to the plaintiff, January 3,1876.
    The following is a copy of said will:
    “ Jeremie, the eighteenth January, thousand eight hundred fifty-six. To Miss Rosemonde G-aveau.— I come to thank you by this letter for all the good care you have bestowed upon me for six years; cares which appear to me like those of a mother or a sister. Therefore, in thankfulness I declare to you that on my death the trunk and all that it contains shall belong to you. That trunk which I have intrusted to you, and which you have deposited with you.
    “Your friend,
    “(Sd.) DOMINIQUE STROMENER.”
    Henry Delafield died in 1875 and the defendants duly qualified as his executors.
    Thereupon the proper draft and demand having been made of defendants, and they having refused payment, this action was brought; to which the defendants, after sundry admissions and denials, pleaded: 1. Payment; 2. Statute of limitations.
    Upon the trial the defendants offered no evidence, and the only questions raised by them were: 1. The statute of limitations; 2. Presumption of payment; 3. That the paper proved as Mr. Stromener’s will was not a will; 4. That plaintiff, in administering the estate, is limited to the assets mentioned in the will.
    The referee reported in favor of the plaintiff, and the defendants have appealed from the judgment thereupon.

      Flamen B. Oam,ctter, for thé appellants.
    The plaintiff, in the capacity of administrator with the will annexed, had no right to bring an action for the claim mentioned in the complaint, for an administrator with the will annexed has interest only in the property disposed of by the terms of the will. The will only disposed of a trunk and its contents, the evidence not disclosing what were the contents. Even where a demand is required, either by rule of law or by express agreement of the parties, before a right of action accrues, yet, after a reasonable lapse of time, a demand will be presumed. (Oodman v. Rogers, 10 Pick. [Mass.], 113; Angelí on Limitations [6th ed.], 95, § 96.) As a general rule, where an act on the part of the creditor is necessary to fix the liability of his debtor, the act must be performed within six years from the date of the contract. (Morrison v. Mulli/n, 31 Penn. St., 12.) If in a contract to pay money on a condition no time of payment or performance of the condition be fixed, the statute begins to run after the expiration of a reasonable time for payment. {Roe v. Thompson, 2 Post. [N. LI.], 217; Laforge v. Jayne, 9 Penn. St. 110; Pittsbwrg cmd Oormellsville R. Oo. v. Byers, 8 Casey [Penn. St.], 22; MeOully v. Pittsbwrg cmd Oormellsville R. Oo., 8 Casey, 25; Pittsbwrg cmd Oonnéllsville R. Oo. v. Graham, 12 id., 77; Pott v Olegg, 16 Mees. & "Weis., 321; Bank of Missowri v. Benoist, 10 Mo., 519; Foley v UiTl, 1 Phil. Ch. B., 101; Topham v. Braddñck, 1 Taunt., 572; Mitchell v. McLemon, 1 Texas, 151; Lyle v.. Murray, 1 Sandf., 59Ó.) Even if the statute has not run against the principal of the loan in the case at bar, for which a thirty or sixty days’ draft ‘or demand was made necessary by the terms of the agreement, the plaintiff’s alleged claim against that part ■ of the interest which was due prior to six years before the commencement of this action is barfed by the statute of limitations. {Greenleaf v. Kellogg, 2 Mass., 568 ; Oooley v. Rose, 3 id., 221; Herries v. Jamieson, 5 Term. Bep., 553.) A demand for the interest in the case at bar was not necessary before the right of action accrued for such interest. {Pott v. Olegg, 16 M. & W., 321; Oarr v. Oarr,l Meriv., 511 n; Demaynes v. Noble, 1 id., 568; Sims v. Bond, 5 Barne. & Adolph., 38; Foley v. Hill, 1 Phil. Oh. B., 399; affirmed in 2 House Lord Cases, 39; Bouvier’s Law Diet., “Deposit;” Bank of Missowri v. Benoist, 10 Mo., 119.) No demand is necessary, in the absence of an express agreement requiring it, before an action for a loan or deposit of money against an ordinary individual who is not a banker, nor an agent, nor a trastee. (See dissenting opinion of Wright, J., in Payne v. Gar diner, 29 N. Y., 171; Johnson v. Farmers’ Bank, 1 Harr. [Del.], 117; LarnaWs Ears. v. Magruder, 1 Harris & Gill, 139, Md. Ot. App.; Laforge v. Jayne, 9 Penn., 110; Oook v. Oook, 19 Tex., 131.) A provision to pay a note “ at any time within six years ” is a promise to pay on demand, though not in itself a note, and the statute runs from the date of the promise. (Yoimg v. Weston, 39 Me. [1 Heath], 192; Parsons on Contracts, vol. 3, *92; Little v. Blunt, 9 Pick. [Mass.], 188; Wemnan v. Mohawk Ins. Go., 13 Wend.-, 267; Perry v. Griffith, 1 Harris & Gill [Md.], 139; Norton v. Ellam, 2 Mees. & Weis., 161; Banough v. White, 1 Barne. & Cress., 325 ; Angelí on Limitations [6th ed.], § 95, and note; Swift v. Lanier, 1 Hill [S. C.], 31; Stafford v. Bichardson, 15 Wend., 302; Iliekoh v. Mickok, 13 Barb., 632 ; Lyle v. Murray, 1 Sandf., 591; Leonard v.' Pitney, 5 Wend., 30 ; Allen v. Mills, 17 id., 202.)

      James S. Stearns, for the respondent.
    The statute does not begin to ran until default made. (Payne v. Gardiner, 29 N. Y., 116; affirming Payne v. Slate, 39 Barb., 631; Sweet v. Irish,. 36 id., 167; 2 Greenl. on Ev., § 135 ; Cowen’s Treatise, § 1098.) No such presumption of payment can arise until the lapse of a certain period after the cause of action has accrued. (Ingraham v. Baldwin, 9 N. Y., 17; Jackson v. Motahhiss, 6 Cow., 103; Jackson v. Pierce, '10 Johns., 117; Meyers. Pruyn, 7 Paige, 170.) The letters of administration are conclusive evidence of the authority of the persons to whom granted. (2 Edm. Stat.; 82, § 56 ; Bálden v. Meeker, 17 N. Y., 310; same as to Public Administrator, 2 Edm. Stat., 127, § 23.)
   Davis, P. J.:

In deciding this case, the learned referee, William M. Pritchard, Esq., delivered the following opinion:

“In November, 1853, Dominique Stromener, an ecclesiastic, residing at Jeremie, in the Republic of Hayti, sent to defendants’ testator drafts due about 1st March, 1851, and then paid, for $1,000, which amount he desired Mr. Delafield to retain and allow him interest upon it. Mr. Delafield declined to allow interest if lie was to be liable to refund tbe money on demand; and it was thereupon agreed between, them, that in order to withdraw said money Stromener must draw on Delafield at thirty days or more after sight, and that Delafield should allow interest at six per cent per annum.

“ On 7th March, 1855, Delafield writes to Stromener: ‘According to my anterior agreement, I have credited you with $210, being interest for one year from 1st March, 1851, to 1st March, 1855, on the $1,000 of yours which I have in my possession.’

“In 1856 or 1857, Stromener died at Jeremie. In the course of 1857, his death was known to Delafield, and familiarly spoken of by him. The paper which has been admitted to probate as his will bears date 18th January, 1856. No evidence is given that Stromener, in his lifetime, ever drew for the money, or any part of it, or for the interest credited on 1st March, 1855, or that any draft was ever made for it until plaintiff made such draft upon defendants on 26th January, 1876.

“I. It is claimed by defendants that the lapse of time (more than twenty years), from the time of the deposit affords a legal presumption of payment. It is not claimed, however, that action could have been maintained against Mr. Delafield until after a draft at thirty days’ sight should have been dishonored; nor is it attempted to be shown, as matter of fact, that any such draft was drawn prior to that by plaintiff as administrator.

“ Undoubtedly, as matter of reason, there is ground for arguing ' that where a contract or transaction has left it optional with a creditor at any time, by notice or other act, to make the debt due after a certain interval, it may just as well be presumed, after suitable lapse of time, that the notice has been given, and payment made, as payment alone may be presumed when debt is due without notice. But presumptions, like other limitations, do. not depend upon the reasons applicable to a particular case. They depend solely upon authority, either of statute or of a course of judicial decisions; and upon authority, it is clear that presumption, of j>ayment arises only • upon a lapse of time after the cause of action has accrued. The rule is so stated by the text-books (Greenleaf, Phillips) and its application is well illustrated in such cases as Halden v. Crafts (4 E D. Smith, 490); Baird v. Walker (12 Barb., 298); Sweet v. Irish (26 id., 467). Payne v. Gandiner (29 N. Y., 146) lays down the same rule, tbe judges only differing upon the question whether it applies to that particular case.

“ The opinion of Judge Woodruff, in Halden v. Crafts, is an able vindication of the rule.

“ II. Many of the authorities cited by counsel were to the effect that presumptions arising from lapse of time may be repelled by proof of circumstances explaining delay, as for instance, in 1 Starlde Nisi Prius Cases, 101, where plaintiff had resided abroad for the last twenty years, and it seems that such proof is admissible. But I have not specially considered that point, having come to the conclusion that presumption of payment did not attach in the present case.

“ III. It is objected, by defendants’ counsel, that the paper proved as a will of Stromener is not a will within the meaning of 3 (Revised Statutes, 152, section 68 (5th ed.).

“ The sole requirement of that section for a will of personal estate executed by a person residing out of this State is, that it should be executed according to the laws of the State or country in which it was made.

“ The laws of Hayti (Code Civil) have been put in .evidence, and contain the following provisions:

“ ‘Art. 778. A will may be oligraphic, or made by public act, or in the mystic form.

“ ‘Art. 779. An oligraphic will shall not be valid unless it is written entirely, dated and signed by the hand of the testator. It is not subject to any other formality.’

“Afterwards, at section 813, the formalities for probate of such will in Hayti are prescribed.

“ The will in question is quite informal, but its substance and meaning are clearly and simply testamentary. Can it be doubted that the identical paper, if executed in this State in the manner required by our statute, would be entitled to probate ?

“It is shown to have been executed according to the laws of Hayti, and duly admitted to probate' there; and an authenticated copy of the will and probate having been produced before the surrogate of New York, he has adjudged and decreed that the will had been duly admitted, that the copy had been duly authenticated, and that letters of administration should issue thereon.

“ IV. But it is claimed tliat the surrogate liad uo jurisdiction to issue letters upon such will.

“ The surrogate’s jurisdiction does not depend in the least upon the will. Tie must have jurisdiction on other grounds, and then the statute requires the copy will to be presented to ‘ the surrogate having jurisdiction.’

“ The ground of jurisdiction here is a plain one, that the decedent left assets within this county. If defendants deny that fact because the claim against Mr. Delafield may be invalid, that would be a mere begging of the question. The claim itself, if made in good faith, is assets without reference to the final result of a suit upon it.

“ V. In this view and for the purposes of this action, it can hardly be material whether the will is valid or not. Upon the single fact of a decedent having left assets in the county, the surrogate had jurisdiction, and the public administrator, in the absence of relar fives, etc., was entitled to letters of administration. It makes no difference as to his powers whether they are issued with the will annexed or without. The difference is in the manner of distribution.

“VI. It would have been a shorter, and perhaps an equally proper and effectual mode of disposing of the fourth point of defendant’s counsel, to say that, after all, the mode of appointment of plaintiff was not open to objection by defendants in this action.

“ If this is a valid claim against their testator they will be abundantly protected in paying it to the plaintiff. (2 Edm. St., 80, § 47; 2 id., 82, § 56.)

“The letters of administration are sufficient evidence 'primafaoie to establish plaintiff’s representative capacity. (Belden v. Meeker, 47 N. Y., 310.)

“Payment to an administrator, duly appointed, is a bar to a second action, even though the intestate was not dead and appointment had been obtained by fraud. The decision of the surrogate that the requisite jurisdictional facts exist, is conclusive until regularly reversed or vacated, and will protect all innocent parties acting on the faith of it. (Roderigas v. E. R. Savings Institution, N. Y. Court of Appeals ; reported in American Law Register, for April, 1876; 63 N. Y., 460.)

“VII. The statute (3 R. S. [5th ed.], p. 157, § 22) makes no such limitation upon the authority of an administrator with the will annexed as is claimed in the brief of defendant’s counsel.

“ On the contrary, it is the obvious duty of any executor or administrator to collect and administer the entire personal estate within his jurisdiction. Our statute specially regulates the distribution of the surplus after all the requirements of the will are satisfied. (2 R. S. [1st ed.], 96, § Y5.) The whole system of our statutes is inconsistent with the theory that the powers of an executor or administrator with the will annexed, are limited to fulfilling the requirements of the will. The same principle and practice prevail in other States. (Parris v. Cobb, 5 Richardson’s Eq., 450; Hays v. Jackson, 6 Mass., 149.)

“VIII. A question of detail remains as to the exact amount of plaintiff’s recovery. "What was the effect, if any, of Mr. Delafield’s letter of March Y, 1855, informing Stromener that he had credited him with $240, being interest for one year, to 1st of March, 1855, on the $4,000, in the absence, so far as appears, of any answer from Stromener ?

“Was it added to the principal, so as itself to bear interest ? I think not. If Stromener had chosen to call for payment of interest at any time I suppose he would have been entitled to it on demand, and Mr. Delafield had expressly refused ■ to allow interest on any sum payable on demand.

“ Did that letter have the effect of separating the $240 from the principal and making it due, so that any statute of limitations might run against it ? Apparently not. According to Payne v. Gardner, cited above, action could not have been maintained for that $240 without previous demand, and the statute of limitations would not apply to it.

“ On the whole, I am of opinion that the letter merely informed Stromener of an existing fact, and had no legal effect whatever; that the true principal sum is $4,000, and that the interest incident to it runs from 24th February, 1854, at six per cent, and runs at that rate to the present time. When a contract calls for interest at less than the lawful rate, the same rate of interest continues after the debt becomes due, and until judgment. (Miller v. Buroughs, 4 Johns. Ch., 436; Van Beuren v. Van Gaasbeck,, 4 Cowen, 496; N. Y. L. and T. Co. v. Manning, 3 Sandf. Oh. [m. p.], 58.)”

This opinion covers, with admirable ability and clearness, every important question raised upon the trial, or on this appeal, but one. A careful examination of the case has led us to the same conclusions reached by the referee in respect to the points considered by him; and it is unnecessary, for that reason, to do more than adopt his opinion as our own.

In respect to the question so elaborately and ably argued by the learned counsel for the appellant, whether a demand was necessary in this case, in order to set the statute of limitations in motion, we are of opinion that the question is disposed of by the case of Payne v. Gardiner (29 N. Y., 146), which holds, in substance, that a demand is necessary before action, in the case of a deposit with an individual who is not a banker, trustee or agent. But in this case, a demand was required by the express agreement between the parties ; and the precise form of demand was specified by the agreement to be a draft at thirty or sixty days’ sight. In such a case we see no reason to doubt that the defendant’s testator could have protected himself against any action brought by the plaintiff’s testator at any time prior to such demand. In respect to the presumption that such demand had been made, so that the statute commenced to run long enough before the beginning of this action to bar the recovery, it may be suggested, in addition to the reasons presented by the learned referee, that it does not appear in the case that any person was authorized to make the demand, from the. time of the death of Stromener, in 1857, -until the probate of his will before the courts of Hayti, in 1875. Upon such a state of facts it is very questionable whether the presumption of a demand has any ground to stand upon, notwithstanding the great lapse of time since the deposit of the money.

Under the case of Roderigas v. East River Savings Institution (63 N. Y., 460) the appellants will be fully protected in making payment of. the demand to the respondent.

The judgment should be affirmed, with costs.

Brady and Daniels, JJ., concurred.

Judgment affirmed, with costs.


author: Davis, P. J. :

text:
    JAMES BUCHAN and ROBERT C. BUCHAN, Executors, etc., Appellants, v. JAMES RINTOUL, Executor, etc., Respondent.

      Executors and trustees — application for an accounting by, under- 2 B. S., 92, § 52— ma/y be made by their co-trustee — power of surrogate cf Yfew Yorh to order a reference to tahe such account— chap. 359 of 1870, sea. 6.
    Where a testator devises all the rest, residue and remainder oí his estate to his executors, to carry out the trust created hy his will, one of such executors may apply to the surrogate, under section 52 of 2 Revised Statutes (92), for an order requiring his co-executor to render and file an account as therein provided.
    Where objections are filed hy such applicant to the account rendered in pursuance of such an order, the surrogate of New York may, under section 6 of chapter 359 of 1870, appoint a referee to examine such account, and report thereon to him.
    Appear from an order made by tbe surrogate of tbe county of New York, denying a motion made on behalf of the appellants herein, to set aside an order of reference made herein, and to dismiss the objections made by the respondent to the account rendered by the appellants, without hearing the same, on the ground that the said respondent had no standing in court.

      J. P. Fitdh and A. Be Witt Balckovn, for the appellants.

      John L. Bmemport, for the respondent.
   Davis, P. J. :

The appellants and respondent herein were by the last will and testament of Thomas B. Rich, and by a codicil thereto, appointed, together with his widow, executors and executrix of the will. By the residuary clause of the will the testator gave, devised and bequeathed tQ his executrix and executors all the rest, residue and remainder of his estate, real and personal, in trust, to receive the rents, issues and profits of. said real estate, and to invest his personal estate at interest, and receive the interest and income thereof, and apply the whole of said rents, interest, profits and income to the use of his wife, for and during her natural life, and on her decease to divide the estate, real and personal, into two equal parts or shares, and convey or assign and deliver such shares as specially directed in said residuary clause.

The respondent and the-appellants all qualified as such executors, but the appellants have had the control and management of the estate. At the expiration of eighteen months after their appointment, the executors having filed no account as required by statute, the respondent made application by petition to the surrogate for an order requiring such account to be filed. . The surrogate made such an order and in obedience the appellants filed an account on oath, and subsequently a further account, amending the first in some particulars. The respondent filed objections thereto and the surrogate made an order referring the account for examination to an auditor, with instructions to the auditor to proceed to a hearing and to' audit said account, upon notice to be given to the several parties. Afterwards the several legatees under the will intervened and appeared by counsel, and a motion was made on behalf of the present appellants and the cestui que trust under the will, to set aside the order of reference to the auditor, and to dismiss the objections filed by the respondent without hearing the same. This motion was denied by the surrogate, and the present appeal is from the order of denial. The questions made upon the appeal are, first, whether the respondent occupied such a relation to the estate that he had a right under the statute to intervene and require an account to be rendered ? The statute provides that an executor or administrator after the expiration of eighteen months from the time of his appointment may be required to render an account of his proceedings by an order of the surrogate, to be granted upon application from some person having a demand against the personal estate of the deceased, whether as creditor, legatee or next of kin, or some person representing any minor having such claim. (2 R. S., 92, § 52.) It is insisted that an executor cannot move under this statute for an accoimting by his co-executors, because he is not a person having a demand against the personal estate of the deceased, either as creditor, legatee or next of kin, as required by the statute above quoted. But the respondent did not occupy the naked relation of executor in this case. He was, by the residuary clause, made one of the trustees of the entire residuary estate of the decedent, both real and personal. His petition to the surrogate for an order of accounting describes him as one of the trustees named in the last will of Thomas B. Rich, deceased. All the residue of the testator’s estate, after payment of specific legacies was given, devised and bequeathed to the executors, as trastees. Bor the purposes of the trust they took the legal title, and in our opinion, come fairly within the description of the persons in the fifty-second section of the act above cited, upon whose application the surrogate may order the executors to render an account of their proceedings after the lapse of eighteen months. Whether a mere executor can do this or not, it is not necessary for us to consider, for in our opinion, it is quite clear that such a trustee as the respondent in this case is, may properly proceed to 'require the rendition of an account by his co-executors who are in possession and control of the estate, although he is also an executor. The learned surrogate examined the question whether an executor may proceed against his co-executors, and he came to the conclusion that in such a ease the proceeding would be regular. His views seem to Be sustained by the authorities cited by him. The second question is, whether upon the rendition by the executors of an account of their proceedings under oath, the surrogate had power to make, upon objections interposed by the respondent, the order of reference to an auditor which the appellants and legatees moved to set aside. It is obvious that the account to be rendered under section 52 of the statute above quoted is not a final accounting by the executors. Section 54 of the same statute provides what may be done by an executor upon the rendition of this account; and that he may be examined on oath touching the payments made by him, and also touching any property or effects of the deceased which may have come to his hands and the disposition thereof. The petition of the respondent asked no relief whatever, except that the appellants appear and render an account under oath of their proceedings as executors, and it is insisted that, upon the rendition of such account pursuant to the prayer of the petition, the surrogate had no power to proceed beyond the examination of the executors on oath, as provided in the fifty-fourth section, without an application by the executors for a final settlement, under section 60 of the statute, or an application by creditors of the estate for payment of debts owing to them, and that his power to appoint an auditor under section (2 R. S., 94), is limited to proceedings on final settlement of the estate or upon proper application for that purpose. This question has been distinctly raised and carefully examined in two cases, first in Westervelt, Exr., etc., v. Gregg (1 Barb., Ch., 469), in which the learned chancellor examined the question and the several statutes in relation to the duties of executors and administrators in rendering accounts and making distributions, and he came to the conclusion that where the petition asked no relief whatever, general or specific,' except that the executors might be ordered to render an account according to law, and that prayer having been fully complied with, that the jurisdiction of the surrogate under the same was exhausted, and that he had no authority to proceed to appoint an auditor upon the rendition of such an account. In Campbell v. Bruen (1 Bradf., 224), the learned surrogate held that where an executor or administrator, in compliance with a citation to account, issued on the petition of a creditor, or legatee, or distributee, has rendered his account and submitted to an examination on oath, that terminates the proceeding, unless the executor asks for a final accounting, or the party who has applied for the account has also applied for the payment of his demand. In either of ‘ the two cases first named, the surrogate may proceed to settle the account. In this case no proceedings for a final settlement have been instituted, either on the application of the executors or on the petition of a creditor, or of the respondent. All that was prayed for was a rendering of the account required by the fifty-second section of the statute above quoted, and all that is intended by the reference to the auditor and the subsequent proceedings is to ascertain the correctness of that account. It is not to be presumed that the auditor or referee will go beyond the duty imposed upon him. This was, by the Revised Statutes, to be accomplished by the surrogate himself under the provisions of the fifty-fourth section. But we are of opinion that these provisions of the Revised Statutes have been changed, so far as they relate to the surrogate of the city and county of New York, by chapter 359 of the Laws of 18Y0. The sixth section of that chapter is as follows: In any accounting of the said Surrogate’s Court, or in any other proceeding therein, the surrogate may appoint a referee to take testimony as to the facts in relation thereto, to examine the accounts rendered to said surrogate, to hear and determine all disputed claims and other matters relating to said accounts, and to make report thereon, subject to the confirmation of the surrogate. Such referee shall have the same powers and compensation as referees appointed by the Supreme Court.” This section confers upon the surrogate all the power that he exercised in making the order, and the fact that the referee in the case is called an auditor, instead of a referee, can make no difference in the power to appoint him. This statute seemed to have been overlooked in the court below and upon the argument before us, but we regard it as changing the power of the surrogate, so far as relates to the city of New York, over the accounting sought for in this case, and as fully authorizing the order of reference, if in the judgment of the surrogate it was deemed proper. There can, it seems to us, be no doubt that the respondent in this case is within the provision of the statute defining who may appear and contest an account.

That language is- (2 E. S., 91, § 63): “Any creditors, legatees or other persons interested in the estate of the deceased, as next of kin or otherwise, may attend the settlement of such account and contest the same.” By that section, both as executor and trustee, the respondent is interested in the estate, and is empowered to attend and contest the estate.

The order below, therefore, must be affirmed with costs.

Beaut and Daniels, JJ., concurred.

Order affirmed, with costs.


text:
    EDWIN F. WIGGIN and EBEN F. BACON, Assignees, etc., Respondents, v. SHERMAN D. PHELPS and WILLIAM O. DOUGLASS, Appellants.

      Venue — change of, for convenience of witnesses — when granted.

    Wien, upon a motion to change the place of trial, the defendant swears to nineteen witnesses residing in another county, all of whom are sworn to be material, and the plaintiff swears to no witnesses residing in the county where the venue is laid, but simply sets forth, in his affidavit, facts tending to show that the defense, sought to be established by defendant’s witnesses has no real existence, the motion should be granted.

      Appeal from an order made at Special Term, denying a motion to change the place of trial.

      T. 0. Oroivm, for the appellants.

      Miles Beach, for the respondents.
   Davis, P. J.:

This is an appeal from an order denying motion of the defendants to change the place of trial from the city and county of New York to the county of Broome.

The defendants’ affidavit shows that the cause of action arose in the county of Broome, and that the defendants have nineteen witnesses residing in that county, all of whom aré sworn to be material, and the facts expected to be proved by each of them are set forth.

The plaintiffs swore to no witnesses residing in the city and county of New York, but presented an affidavit touching the merits of the action, and of the defense, tending strongly to show that no such defense or counter-claim as that set up by the defendants, in fact exists. To retain the place of trial, the plaintiffs should have shown some witnesses residing in the city of New York, and their failure to do so left it necessary for the court below to dispose of the motion solely by a partial trial of - the merits of the action upon the ex jpcurte affidavits presented by the plaintiffs.

It is claimed that upon the facts shown, to wit, that a large number of witnesses for the defendant resided in the county of Broome, and in the absence of any affidavit of witnesses residing in New York, it was a substantial right of the defendant to have the place of trial changed, and that the court below erred in denying the motion upon the supposed merits of the action and defense, as presented by the ex pa/rte affidavits of the plaintiffs.

We are inclined to think this view the proper one. It was the established practice, under the old system, to. grant motions of this kind, unless the plaintiff showed an equal or greater' number of witnesses in the county where the venue was laid.

Afterwards the court, by its rules, allowed the parties to state the facts expected to be proved by the respective witnesses. This opened the question of the materiality of the witnesses to the consideration of the court, without regard to the numbers stated; but it has never been, the practice to allow the plaintiff to retain Ms venue, where the defendant swears to witnesses residing in another county, by alleging facts in his affidavit tending to show that the defense, expected to be established by such witnesses, has no real existence. •It is manifest, if this practice be introduced, that in this Mnd of motions the court will be called to pass upon the merits of the issues, irrespective of the convenience of witnesses which is really the proper subject of consideration., Of course, where the facts show that the motion is made in bad faith the court may properly deny it, and in determining that question may undoubtedly take into consideration the question whether any substantial defense exists; but the conclusion as to bad faith ought not to be left to depend wholly upon the partial tidal of the action upon'the ex pa/rte affidavits of the plaintiffs. We think, upon all the papers presented, the defendants showed a substantial right to change the place of trial, and that such right was not met or impugned, according to the established practice. We do not intend to hold that orders made in this class of motions upon conflicting affidavits as to the convenience of witnesses, are appealable. The motion should have been granted.

The order below should be reversed, and the motion granted, with ten dollars costs of motion below, and ten dollars costs and disbursements of this appeal, to abide the event of the action.

Brady and Daniels, JJ., concurred in the result..

Ordered accordingly.


author: Daniels, J.:

text:
    MARY LOUISE COLT, Appellant, v. ELEANOR HEARD, Administratrix, etc., of THOMAS SCOTT, Deceased, Respondent.

      Will — absolute legacy to one — remainder to another, if the propei'ty be not disposed, °f by first legatee — construction of.

    A testatrix, by her will, devised and bequeathed all the rest, residue and remainder of her estate “unto my beloved husband, Thomas Scott, but such part thereof as he may have at the time of his decease, I give, devise and bequeath unto my niece, Mary Louise Ledyard', and my nephew, Gluy Carlton Ledyard. ” Eeld, that the husband took an estate for life in the property described in the will, with power to sell and dispose of the same, so far as necessary to secure to . himself the full beneficial enjoyment thereof, and that the nephew and niece were entitled to what might remain undisposed of by him at the time of his death.
    Appeal from an order of the surrogate of the county of New. York, granting letters of administration, with the will annexed, upon the estate of Catharine Louise Scott, to Eleanor Heard, in her right as administratrix of the estate of Thomas Scott, deceased, and denying the application of Mary Louise Colt, formerly Mary Louise Ledyard, for such letters of administration.

      Lucins O. Ashley, for the appellant.
    Thomas Scott took the entire fee simple by force of the word estate, and the subsequent limitation being repugnant thereto, is void. (Jackson v. Robins, 16 Johns., 53Y; Pinckney v. PincJmey, 1 Bradf., 2Y1; JacJtson v. Bull, 10 Johns., 18; McLean v. McDonald, 2 Barb., 531; Norris v. Beyea, 13 N. Y., 286; Fearn on Ex. Dev., 50; 6 Cruise’s Dig., 369, tit. Dev., chap. 1Y, § 11: Pells v. Brown, Croke Jac., 590; Preston v. Termell, ‘Willes’ R., 161.)

      Oha/rles Matthews, for the respondent.
   Daniels, J.:

The propriety of the order appealed from depends upon the construction which should be given to the will of Catharine Louise Scott, so far as it disposed of her residuary estate; and for the purpose of ascertaining what that should be, the third clause of the will alone requires consideration. Beyond that, there is nothing contained in the instrument which will afford any material assistance in the determination of the intention of the testatrix concerning this portion of her estate.

The third clause was expressed by her in the following terms: “ I give and bequeath and give and devise all the rest, residue and remainder of my estate, real and personal, and wheresoever situate, unto my beloved husband, Thomas Scott; but such part thereof as he may have at the time of his decease, I give, devise and bequeath unto my niece, Mary Louise Ledyard, my nephew, Guy Carlton Led-yard.” If the husband took the entire title to the residuary estate of the testatrix under, it then the order made by tbe surrogate was correct. But if he did not, and tbe Imitation over upon bis decease was valid, then tbe order should bave directed tbe letters, with tbe will annexed, to bave issued to tbe appellant, who is tbe person named as Mary Louise Ledyard. That tbe testatrix anticipated ber husband would bave some portion of tbe estate left at tbe time of his decease, which would then be subject to ber power of disposition, is evident from tbe declaration made by ber concerning it; and that is not consistent with tbe existence of an intention to make him tbe absolute owner of tbe residue of her estate. If that bad been ber purpose, then, clearly, she would bave provided for no further disposition of ber property. Tbe fact that she made such a provision indicates that she did not understand that she bad given him ber entire residuary estate. What appears to bave been ber intention was, to give him ber real and personal property for tbe term of bis life, with power to consume or dispose of it as that might become expedient or necessary to secure him its beneficial enjoyment. And. when those objects were subserved, that tbe final residue should still be subject to ber disposition and control, and become tbe property of ber nephew and niece in tbe manner ultimately declared by ber will. Tbe probability of tbe existence of this intention is advanced by tbe fact, that she would naturally be more desirous that ber own family relatives should in tbe end enjoy ber estate than that it should pass to those of ber deceased husband.' Her design was, that be should bave tbe benefit of ber property while be lived, and at bis decease that it should return again to ber own immediate relatives. And as that was clearly ber intention, it ought to be maintained by tbe courts, if that can be done consistently with tbe established principles of law. As far as it may be done, ber intention, as it may be capable of being discovered from ber will, should b'e carried into effect.

In this case tbe testatrix’s design, as she has disclosed it, can be supported and enforced under tbe authorities applicable to it; for, in cases quite similar, tbe hmitation over after tbe termination of tbe life of tbe party first intended to be provided for has been maintained. This was accomplished upon a full .examination of tbe authorities in tbe case of Smith v. Bell (6 Peters, 68). Tbe clause which was there tbe subject of consideration was in tbe following terms: “I give to my wife, Elizabeth Goodwin, all my personal estate, whatsoever and wheresoever, and of what nature, kind and quality soever, after payment of my debts, legacies and funeral expenses, which personal estate I give and bequeath unto my said wife, Elizabeth Goodwin, to and for her own use and benefit and disposal, absolutely; the remainder of the said estate, after her decease, to be for the use of the said Jesse Goodwin.” The interest given by this clause to the wife of the testator was described in terms more consistent with the complete disposition of his personal estate in her favor, than those used in the instrument now before the court, and yet it was held that she took but an estate for life. In the course of his opinion upon which that case was decided, Marshall, chief justice, said that “ these words give the remainder of the estate, after his wife’s decease, to the son, with as much clearness as the preceding words give the whole estate to his wife. They manifest the intention of the testator to make a future provision for his son, as clearly as the first part of the bequest mauifests his intention to make an immediate provision for his wife. If the first bequest is to take effect according to the obvious import of the words taken alone, the last is expunged from the will. The operation of the whole clause will be precisely the same as if the last member of the sentence were stricken out. Yet both clauses are equally the words of the testator, are equally binding, and equally claim the attention of those who may construe the will. We are no more at liberty to disregard the last member of the sentence than the first. No rule is better settled' than that the whole will is to be taken together, and is to be so construed as to give effect, if it be possible, to the whole.” (Id., 76.) In Terry v. Wiggins (41 N. Y., 512) the residuary clause was couched in terms equally as broad and comprehensive. By that the testator declared his purpose in the following form: “Also, I hereby bequeath to my said wife, Hannah Youngs, all other real and personal estate and effects that I may die possessed of, for her own personal and independent use and maintenance, with full power to sell or otherwise dispose of the same, in part or in the whole, if she should require it or deem it expedient so to do ; save and except the sum of $500, which I shall intrust to her to appropriate according to verbal instructions from me. And after her decease, I hereby authorize my executors, hereinafter named, to invest whatever residue there may be of personal or real estate and effects in the hands of the trustees of the Congregational Society of Greenport aforesaid, to be by them placed out on good legal security, and the interest to be by them appropriated yearly to the support of preaching the gospel,” etc. And it was held that the wife took but a life estate, with a power of disposition only, and consequently the limitation over was valid, and should be sustained.

In the course of his opinion, which was that of the entire court, Judge Allen held that “ there is no repugnancy in a general devise to one person, in terms which would ordinarily convey the whole estate, and a subsequent provision giving the same estate to another person upon the happening of a contingent event. Such a disposition of personal property has been held valid, and the limitation over good.”

“ By the will, the wife took an estate for life, for the residue, with remainder over at her death to the religious society, with power in the wife, during the continuance of the life estate, to defeat the remainder by an act authorized by the testator, to wit, a valid disposal of the subject-matter of the devise.” (Id., 518, 519.) So far as it can be considered applicable to this controversy, Barnes v Hathaway (66 Barb., 452) sustains the same view; and neither Marvin v. Smith (56 id., 600) nor Taggart v. Marray (53 N. Y., 233) is in conflict with it. The authorities bearing upon the construction which should be given to the will in this case are entirely consistent with the reasonable import of the clause as it was framed by the testatrix ; and both require that it should be so construed as to maintain the intention she has indicated; that is, that her husband should enjoy the full benefit which he couldl derive from her estate while he lived, and upon his decease that it ] should return to and be owned by her own family relatives. The I order made by the surrogate was therefore erroneous, and it should be reversed with costs, and an order should be entered directing the letters of administration, with the will annexed, to he issued to Mary Louise Colt, the appellant.

Davis, P. J., and Brady, J., concurred.

Order reversed, with costs; order entered directing letters of administration, with will annexed, to be issued to Mary Louise Oolt, appellant.


text:
    JENNIE YOUNGS, Respondent, v. HANNAH M. CARTER and NETTA YOUNGS, Impleaded, with DANIEL S. YOUNGS, Appellants.

      Equitable jurisdiction of Supreme Cowrt■ — extentof—Const., a/rt. 6,sec. 3 — Framd— conveya/nce by one, with intent to deframd intended wife of dowen' — remedy of wife.

    equitable jurisdiction, of the Supreme Court includes all cases which may be properly comprehended within established and existing equitable principles. It is not necessary to establish the existence of some definite precedent for the action which is sought to be maintained.
    One John Youngs, a widower, was engaged to be married to the plaintiff on the 27th of August, 1872, but in consequence of his sickness on that day the marriage was postponed to the third of September. On the thirtieth of August, he, without the knowledge of the plaintiff, conveyed real estate, of the value of $150,000, comprising nearly the whole of his estate, to two daughters by a former marriage, and took back from them a lease of the same for his life. ■
    After the marriage the plaintiff, upon learning that said conveyance had been made, brought this action to set the same aside. Eeld, that the conveyance was a fraud upon the rights of the wife; that the same should be adjudged void as to her inchoate right of dower, and that she should be adjudged entitled to a dower right in the land so conveyed.

      Held, further, that she might maintain such action during the life of the husband.
    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe trial of tbis action at Special Term.

      George W. lord, for tbe appellants.
    A court of equity cannot, by its decrees, supply “ omissions ” or “ defects ” in positive legislation, and do wbat tbe law-making power bas left undone. (1 Story’s Eq. Jur., §§ 14, 15, 16, 18, 19, 20 [7th ed.]; 1 Fonb. Eq. B., 1, § 3, note h ; Burgess v. Wheate, 1W. Black., 123; Bond v. Moslems, S. & L., 428, 429; Mamvmg v. Mamvmg, 1 Johns. Ob., 530; 1 Mod., 307; Oowjper v. Oowper, 2 P. Will., 753; Seld. Table Talk, tit. “Equity;” 3 Black. Comm., 432; Mitf. Plead. Eq., 4, note i.) A court of equity cannot, even in a case of extreme hardship, make a new statute or enlarge one already in existence. (3 Black. Com., 431; 1 Dane Abr. Ob., 9, art. 3, § 3 ; Story’s Eq. Jur., § 15 ; 6 Paige, 292; 4 Johns. Ob. R., 149 ; Head v. Stamford, 3 P. Wms., 412; Mayor, eto., v. Meserole, 26 Wend., 139 ; Supervisors, eto., v. Dv/ra/nt, id., 65.) Tbe settlement of a portion or of all a man’s estate upon his children in contemplation of a second marriage is not prohibited by' our laws, nor does it operate as a fraud upon the marital rights of the wife. (1 Hill, on R. E. [4th ed.], 168, chap. 10, § 6; Park on Dower, 231, 236, 375, 382; Ath. on Mar. Set., 323, 329 ; Rop. on Hus. and Wife, 354 [note], 356 ; 1 Wash, on Real Prop., 161, § 13; Hoy. on Frauds [vol. 2], 83; Swamorck v. Lynford, Oo. Litt., 208; JBottoml/y v. Fairfax, Prec. Oh., 336; Hill v. Adams, 2 Atk., 20; Banks v. Sutton, 2 P. Wms., 700; Show Pari. Oases, 71; Draper’s Oase, 2 Freem., 69; Ambl., 6; 14 Yes., 290; Stewart y. Stewart, 5 Conn., 317; McIntosh v. Ladd, 1 Humph. [Tenn.], 459; Richards v. Richards, 11 id., 429 ; Blood v. Blood, 23 Pick., 80; Thomas v. Davis, 6 Ala., 113; Oameron v. Oameron, 10 S. & M. [Miss.], 394; Whithead v. Mallory, 4 Cush., 138; Miller v. Wilson, 15 Ohio, 116 ; Link v. Edmonstone, 19 Miss., 457; Randall y. Randall, 3 Mass., 378; Balter v. Ohase, 6 Hill, 482; Holmes v. Holmes, 3 Paige, 363.) Fraud in such cases cannot be presumed. It must be proved. A settlement made in consideration of blood is never presumed to be fraudulent as against creditors or others. (.Bucklln v. Bucklln, 1 Keyes, 141; Frazer v. Weimire, 1 Barb. Oh., 220 ; Swan v. Jackson, 8 Oow., 406; Loeschigk v. Addison, 4 Abbt. [H. S.], 210; Ohatterton v. Gardner, 11 Leigh, 281; Freeghly v. Freeghly, 7 Md., 538; Reckets v. Reckets, 4 Gill., 105 ; Sangborn v. Lang, 41 Md.; Stewart v. Jackson, 8 Oow., 496.) This action cannot be maintained during the lifetime of the husband. (Moore y. The Mayor, etc., 8 N. Y., 110, 114.)

      William F. Shepard, for the respondent.
    Any voluntary conveyance made by a man on the eve of marriage, and kept secret from the intended wife, is fraudulent and void as against her claim for dower. (Swalne v. Perine, 5 Johns, 482 ; Smith v. Smith, 2 Hal., 515 ; id., 6 N. J., 515 ; Pettyv. Petty, 4 B. Mon. [Ky.], 215; Thayer v. Thayer, 14 Yt., 107; Jemmy v. Jemvy, 24 id., 324; Oranson v. Granson, 4 Mich., 230; London v. London, 1 Humph., 1; Brewer y. Oormdl, 11 id., 500; Wash, on Real Prop. [3d ed., vol. 3], 298, 299.) That a voluntary conveyance or settlement made by an intended wife is a fraud upon the marital rights of the husband may be considered settled law.) Pitt v. Hunt, 1 Yern., 18; Garitón v. Earl of Dorset, 2 Yern., 17; Howard v. Hooker, 2 Oh. R., 82;
      Godda/rcl v. Snow, 1 Russ. R., 42; Clancy on Husb., etc., 614.) Tbe plaintiff is entitled to maintain this action before tbe death of her husband. (4 Kent Com., 50 [marg.]; Mills v. Vcm Voorhies, 20 N. Y., 412, 420; Matthews v. Dwryee, 3 Abb. Ct. Ap. Dec., 220, 221; Simar v. Gcmaday, 53 N. T., 298, 314.)
   Daniels, J.:

Tbe plaintiff instituted tbis action as tbe wife of tbe defendant, Daniel S. Youngs, to annul and set aside a deed by which be conveyed nearly all his real estate to his two daughters four days before his intermarriage with her. By tbe evidence given, the conclusions of fact determined by the learned judge who presided at the trial were sufficiently sustained to render it tbe duty of tbis court, u2ion tbe present appeal, to regard them as expressive of the truth of the controversy between the parties. They show that the husband bad been previously married, and tbe defendants appealing were tbe daughters of that marriage. After tbe death of their mother, their father contracted a second marriage with tbe plaintiff, which was to have been solemnized on tbe 27th day of August, 1872, but by reason of his illness at that time, it was deferred to tbe third of the following month. Intermediate those days, and on the thirtieth of August, he conveyed the real estate in question, of tbe value of about $150,000 and comprising nearly all his property, to his two daughters, and they in turn executed and delivered to him a life lease of it. ' Tbis was done without tbe knowledge of tbe plaintiff, who remained ignorant of what bad transpired until after her marriage. When it was discovered by her, this action was- commenced for the purpose already stated. And by the judgment recovered the conveyance was adjudged to be void as to the plaintiff’s inchoate right of dower in tbe land on the ground of fraud, and she was adjudged to be entitled to such dower right in tbe property described in it.

It has been claimed, on behalf of the defendants appealing, that this court, as a court of equity, had no power to make tbe determination which resulted in tbe judgment, and several authorities were cited and relied upon in support of that proposition. But it will not become necessary to enter into any discussion of them for the purpose of making a proper disposition of this case; for even if it should be conceded that the jurisdiction of the court cannot be enlarged by its own inherent authority, no practical difficulty could result from the concession; for it now extends to all cases of law and equity, by virtue of the provision of the Constitution defining its power. (Const, of 1816, art. 6, § 3.) The authority given, in terms is, “ general jurisdiction in law and equity; ” and that, of necessity, includes all cases which may be properly comprehended by established and existing equitable principles. The test of jurisdiction cannot be restricted to the existence of some definite precedent for the action which may be brought. That would destroy the flexibility required to maintain the utility of the court, in the demands necessarily made for the exercise of its authority in new cases always arising out of the enterprises and progress of society. The novelty of the case can form no well-founded objection to the jurisdiction over it, if it falls within the limits of any defined .’equitable principle. That must constitute the test of the court’s authority, and not the existence or absence of precedent for the case over which it may be invoked. Those principles are as broad as the just wants and necessities of civilized society require; and it is scarcely possible to imagine a case in which equitable relief may be proper which they do not include. If there are cases of that description, the present one, certainly, is not among them in any' view which should be taken of it. For if the plaintiff must fail it must be for want of proof, and not because of any infirmity in the power of the court to administer relief. If her case has been made out it is for the reason that the conveyance which was made was, in the sense in which the term is understood and applied by courts of equity, a fraud upon her contemplated marital rights. That has been defined to include all acts, omissions and concealments which involve a breach of legal or equitable duty, trust, or confidence justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another. (1 Story’s Eq. Jur., § 187; Gale v. Gale, 19 Barb., 249.) And a case of this description must be brought by the facts within this general principle in order to secure its success.

"When the conveyance in controversy was executed, the relation óf the grantor to the plaintiff was of a strictly confidential nature, and a natural expectation inspired as well as implied by it was, that ■upon its consummation she should succeed to all the legal rights of a wife in the property owned by him. She acquired by means of it an equitable claim upon him to that extent. But, at the same time, it was not so entirely controlling as to prevent him from discharging such other equitable obligations as he might have previously incurred to his children. It simply restrained him from disposing of his property, fraudulently, for the purpose of preventing it from becoming subservient to the rights which the laws of the State secured to a wife. It has been substantially conceded in the argument, and has been so held in the early administration of the law by courts of equity, that a similar disposition of her property by the wife would be a fraud upon the marital rights of the husband, and for that reason would not be permitted to stand. But an effort was made to distinguish the case of a disposition of the husband’s property from the operation of the saíne principle; and reasons were assigned for it more consonant to the spirit of the times than creditable to an impartial administration of the law. The wife’s proprietary interests were then generally subordinated to the paramount rights of her husband, and her separate legal existence was, for most purposes, denied. But since then a more liberal policy has been adopted, which has afforded her a degree of security equal, at least, to that provided for her husband; and with its progress her contemplated marital rights have acquired an equal degree of security. There never was any good reason why the disability imposed in this respect upon the wife, should not have been equally applied to the conduct of the husband. If it was inequitable for her to convey away her property in anticipation of marriage, in order to prevent it from becoming subordinated to her husband’s anticipated rights in it, it was equally so for him to do the same. The principle that restrained her should be equally'as effectual over him; for, if the act of one was a fraud, it was certainly no less so when it was performed by the other.

* And so it has come to be regarded by courts of equity. The inchoate right of the wife to dower in her husband’s property is considered, as it should be, as one entitled to protection. That has been held in general terms in repeated instances. (Mills v. Van Voorhies, 20 N. Y., 412; Mathews v. Duryee, 3 Abb. Ct. Appeals, 220; Simar v. Canaday, 53 N. Y., 298.) In the last case the authorities were fully reviewed and the conclusion adopted as the settled law, that “ an inchoate- right of dower in lands is a subsisting and valuable interest, which will be protected and preserved to her, and that she has a right of action to that end.” (Id., 304.) - And, conformably to that conclusion, the courts have protected her against conveyances made before marriage, for the purpose of placing the husband’s property beyond the reach of that right. Its existence is one of the resulting consequences of marriage — a right arising out of its relation. And it is as much a fraud for the husband to place his property out of his hands for the purpose of avoiding it, as it is for a debtor who contemplates the contraction of debt, to voluntarily dispose of that owned by him, in order to defeat the efforts of future creditors to secure their payment. The latter, it has been-held, cannot be successfully accomplished. (Savage v. Murphy, 34 N. Y., 508; Case v. Phelps, 39 id., 164.) And the same principle should maintain the action of the wife to vindicate herself against the success of a similar device. It has been applied in that manner in several instances, and expressly sanctioned in others. (Smith v. Smith, 2 Halst. [N. J. Chy. R.], 515 ; Cranson v. Cranson, 4 Mich., 230; Swaine v. Perine, 5 Johns. Ch., 482; Thayer v. Thayer, 14 Vermont, 101.) In the last of these cases the authorities were fully collected and reviewed; and it was held, as the wife during the treaty for marriage, would not be permitted, without the knowledge of the person intended to become her husband, to make a voluntary disposition of her property to defeat his marital rights, that the husband should be subjected to the same disability; and, accordingly, such a disposition of his property was not allowed to stand. This case is important, and entitled to great weight in disposing of the one now before* the court. Substantially to the same effect, also, was the decision in Petty v. Petty (4 B. Monroe, 215). And they are not in conflict with Holmes v. Holmes (3 Paige, 363), which related only to the disposition of personal property, in which the wife can have no such interest as she has in her husband’s real estate.

•The conveyance in controversy in this case was what the law denominates a voluntary one (Jackson v. Peck, 4 Wend., 302); for it was not executed upon a valuable consideration, but it constituted a gift of the property described in it for the consideration of natural love and affection. And for that reason the grantees in it cannot be regarded as purchasers of the property conveyed to them for value. As to such a conveyance, the fraudulent intent of the grantor alone is sufficient to avoid it. (Jenny v. Jenny, 24 Verm., 324; Wood v. Hunt, 38 Barb., 302:)

And an action for that purpose may be maintained by' the wife during the lifetime of her husband. (Petty v. Petty, supra; Scribner on Dower, vol. 2, 152.) If it could not be, her right would be in danger of being altogether defeated by a conveyance of the property by the grantees to a purchaser in good faith for value. The right itself arises from the marriage; and, according to Swan v. Canaday (supra), it then becomes sufficiently complete to render it the subject of vindication by action. In that respect it is analogous to the right of a creditor against the property of his debtor. Upon the solemnization and consummation of the marriage, her inchoate right to dower in her husband’s real estate is brought into existence, and the only obstacle in the way of its attachment is the fraudulent conveyance made to avoid it. A present right of action for its removal at once accrues. The wrong has been done, and its vindication is an immediate necessity. Both together would seem to be sufficient to justify the maintainance of an action for the correction of the wrong.

The learned judge presiding at the trial was clearly warranted in concluding that the transaction was fraudulent. Making the conveyance, which included nearly all the grantor’s property, for the purpose of defeating the right of his wife to be endowed of his property, gave it that character. And that it was made with that design, was reasonably.apparent from its close proximity to the time of the marriage and the circumstance that he, at the same time, received back a life lease of the property, seeming to him its rents ■and profits. The transaction was designed to secure him the benefit of his property while he lived, and to give it absolutely to his children upon his decease, free from dower in it to his wife. That was its inevitable result if it should prove successful; and for that reason it was properly held to have been intended and designed as the effect of the conveyance. The principle is a familiar one, frequently applied, that persons shall be presumed to have designed what may be the natural or necessary consequences of their acts; and it is peculiarly applicable to cases depending upon tbe existence of an intent to defraud.

In all respects tbe action was well sustained by tbe evidence, and for tbe reasons abeady mentioned, as well as those assigned in tbe opinion delivered at tbe Special’Term, tbe judgment, to which no formal objection has been taken, ought to be affirmed, with costs.

Davis, P. J., and Bradt, J., concurred.

Judgment affirmed, with costs.


text:
    EMILIO SANCHEZ Y. DOLZ, Respondent, v. NATHAN B. MORRIS, TIMOTHY KELLY and others, Appellants.

      Testimony of experts —form of questions — Tonnage of vessel given in chm'tei'-parrty — when not conclusive.

    Upon the trial of this action, brought to recover damages for a breach of a charter-party, the principal question was whether or not the ship, which had been disabled by a storm while near the port of Yera Cruz, could have put into any of the ports in the Gulf of Mexico or in the southern Atlantic States. Upon the trial, experts, called on behalf of the plaintiff, were asked, against the defendant’s objection and exception, the following question : “ Under the state of facts mentioned in that deposition what ports could the captain have made in the Gulf of Mexico?” They were also asked other questions to the same effect. Held, that it was error to admit the questions, as they allowed, and compelled each witness to determine for himself what facts were proved by the deposition, and thus usurp the functions of the jury.
    The charter-party was made between J. L. Robart, master and agent for owners of brig Ottawa, “ of the burden of one hundred and fifty-eight tons or thereabouts,” and the plaintiff. In an action by the latter to recover for a breach of the contract, held, that he was entitled to show, for the purpose of enhancing the damages, that the brig was in reality of 250 tons burden.
    Appeal from a judgment -in favor of tbe plaintiff, entered on tbe verdict of a jury, and from an order denying a motion for a new trial made upon tbe minutes of tbe justice before whom tbe action was tried.
    TMs action was brought to recover damages for a breach of a charter-party, entered into between “ John L. Robart, master and agent for the owners of the Br. brig Ottawa, of Parsboro, N. S., of the burden of one hundred and fifty-eight tons or thereabouts,” and the plaintiff.

      Erasius OooI&e, for the appellants.

      WilUam W. ú-oo&rioh, for the respondent.
   Daniels, J.:

The action was brought to recover damages for the breach of a contract of charter-party, by which the brig Ottawa was chartered to the plaintiff to proceed from Rockland lake with a cargo of ice to Yera Cruz, and to take on board another cargo there or at some other safe port in Mexico, and return therewith to New York or Boston.

After discharging her outward cargo at Yera Cruz, the master-of the vessel was directed to proceed to Tecohitla, not far from Yera Cruz, to receive the homeward cargo. On her way there and while awaiting the arrival of a pilot she encountered a severe storm, which drove her from the vicinity of that port, and as it was claimed in behalf of the defendants, her owners, so far disabled her as to render her nearly helpless and incapable of entering any port upon the coast for the purpose of refitting. The deposition of the master tended to support that view of the facts, and to show that the first harbor she was able to enter was Liverpool, in Nova Scotia.

She was then repaired and refitted and returned to New York, and the captain informed the plaintiff that he wished to continue the voyage, but was answered that there was then no cargo in Mexico for him. The vessel was then in a condition to go on' and perform the remaining portion of the charter.

The defense in the case was predicated upon the evidence given by the master of the vessel, and the plaintiff endeavored to avoid the effect of it by showing by persons experienced in the navigation of the Gulf of Mexico and with the adjacent waters and harbors, that the vessel, by proper and skilful management, might have entered one of the ports along the route taken by her after being driven away from Tecohitla, where her injuries could have been repaired and she enabled to return for her homeward cargo. And for that purpose certain questions were propounded to those witnesses, and answers received from them which are urged in the defendants’ behalf as being so far improper as to require another trial of the action for their correction. If the evidence in this manner elicited was incompetent, then, as it appears to have been essential to the support of the plaintiff’s case, the result indicated will necessarily follow from the allowance of its introduction upon the trial.

The evidence objected to consisted in part of the opinions of the plaintiff’s witnesses, as to what might have been done with the vessel by the way of making a convenient harbor under the circumstances mentioned in the deposition. It- has not been urged, as it could not be with any propriety, that the opinions of such witnesses may not be taken upon subjects connected with the science or practice of navigation. Walsh v. Washington Ins. Co. (32 N. Y., 427, 443). But the objection taken is that they were allowed to state their conclusions in terms so broad as to comprehend the province of the jury, as well as the subjects appearing to be within the legitimate scope of the rules of evidence.

The first of these inquiries relied upon as objectionable was made in the following form: “ Under the state of facts mentioned in that . deposition, what ports could the captain have made in the Gulf of Mexico ?”

The objection to this in brief was that the question was improper, but the court overruled it and allowed the answer to be given. To that the defendants excepted, and the witness answered in the following words: “According to my opinion he could have made any of the ports from Galveston to Key West; Galveston, New Orleans, Mobile, Pensacola and Key West, the latter of which he could have made perfectly easy; there are quite a number of small ports he could have made, but those are the larger ports, which any captain is acquainted with.” A 'similar inquiry was made of another witness. The-question propounded for that purpose to him was as follows: “ With a vessel in the condition stated by Captain Roberts, and these winds and currents as stated in that deposition, with a vessel in the position named by him, would there have been any ■ difficulty in that vessel reaching other ports in the Gulf of Mexico ?”

This was objected to because it involved “ an inquiry into the truth or falsity of at least some portion of that testimony,” and called “ upon the witness to pass upon the testimony of the person upon whose evidence he predicates his opinion.” The objection was overruled and the defendants excepted. The witness thereupon answered, “I do not think there,would be any difficulty at all in making the northern part of the bay out of the southward of Vera Cruz making Sisal from eastward, Frontaro, Minatiltain, Campeche, New Orleans, Mobile, Pensacola, Key "West, Havana, Matanzas, Cardenas, any port in the United States, Savannah or Nassau.”

A similar inquiry was made of a witness who heard part of the deposition read, and also read a portion himself. That was objected to because the question did not embody the entire condition of the vessel. It was disposed of in the same way as the other objections had previously been. And the witness answered that the vessel ought not, and generally would not have any trouble in making any Mexican ports to the westward of Pensacola.

These inquiries in the form in which they were allowed to be made do not seem to have been proper, and the impropriety of such a course of examination was plainly illustrated by the cross-examination of the witness answering the second of these questions.

For upon being asked whether he took the statements of Roberts as true, to form the basis of his opinion, he answered that he did not take any thing of his story at all, but thought he could have got a vessel into one of those ports according to his judgment.

As they were propounded, the questions required the several witnesses to gather the facts for themselves ’which each might regard as proved by the deposition. A finding of -facts claimed to be established was first essential, but without any disclosure of them by the witness, his answer was taken embodying his conclusion upon them. What facts the witness might consider proven by the evidence he was required to decide for himself, and then express his opinion as to their effect. But what that was founded upon co.uld not possibly be known when the answer was given by him. Diversities of views would ordinarily be entertained by different persons under such circumstances. One might very well and very naturally accept as proved what another would as surely reject. That would be the result of the peculiar constitution of the human mind and the experiences of different persons. And it would create different bases for similar answers. "Without confining the attention to any certain state of supposed or supposable facts, each witness was allowed to answer upon what he alone considered to be the effect of the deposition of the captain. He was placed at liberty to construe it for himself and then permitted to declare his opinion upon that construction.

In effect the entire scope of the defendants’ defense was placed under the inspection of the witness, and he was allowed to state whether in his judgment the defense had been established. The witness was in this manner permitted to. usurp the province of the jury and in part, that of the court. The course pursued has not been sanctioned by authority, and must have been injurious to whatever rights the defendants had in the case.

The true course to be taken is that indicated by Judge Allen in his opinion, in the case of Filer v. The New Fork Central R. R. Co. (49 N. Y., 42), where it was said that “ some latitude must necessarily be given in the examination of medical experts and in the propounding of hypothetical questions for their opinions, the better to enable the jury to pass upon the questions submitted to them. The opinion is the opinion of the expert, and if' the facts are found by the jury as the counsel by his questions assumes them to be, the opinion may have some weight; otherwise, not. It is the privilege of the counsel in such cases to assume within the limits of the evidencé, any state of facts which he claims the evidence justifies, and have the opinion of experts upon the facts thus assumed.” (Id., 46.)

Upon an examination conducted in that manner, the court and jury can see what the opinion has been based upon, and proper effect can be given to it accordingly. If the facts assumed are not found as established by the jury, then the opinion will be deprived of all weight in the case; but if they are found, then appropriate effect will necessarily be awarded to it, and the opinion given will aid the jury in solving the controversy. That cannot be the case where the witness may be allowed to roam through the evidence for himself, and gather the facts as he may consider them to have been proved, and then state his conclusion concerning them. The uncertainty of the judgment of the witness as to the effect of the proof must render his opinion upon it alike uncertain, when that is allowed to be given.

"Whether it would be adapted to the case or the defense as the jury might consider it to have been established in their view of the evidence, there would be no possible mode of determining. If such an opinion as was allowed to be given in this case were to be followed at all, it could very well proceed upon the assumption of the truth of a different state of facts from that to which it would be finally applied by the jury.

And no such mode for the toleration of injustice could be devised.

In Sills v. Brown (9 Car. & P., 601), which was an action for a collision, the witness was asked whether, having heard the evidence in the cause, he thought the conduct of the captain of the brig was right or not. This was excluded as improper and the witness was limited in his answer to what- he considered was the duty of her captain under certain specified circumstances. (See also People v. Lake, 2 Kernan, 358.) In the case of The Clement (2 Curtis, U. S. Rep., 363) a similar point was presented and decided in the same way. It was there said in the course of the opinion, that “ a question was made at the hearing concerning the admissibility of the testimony of experts in answer to questions proposed to them, not on a given state of facts, but upon the depositions of the witnesses who were present at the collision. I am of opinion such evidence is not admissible.” (Id., 369.) Crofut v. Brooklyn Perry Co. (36 Rarb., 201) and Taylor v. Monnot (4 Duer, 116) were decided upon a similar view of the law of evidence. In the form in which these questions were put upon the trial of this cause they should have been rejected.

The statement in the charter that the vessel was of the burthen of 158 tons or thereabouts was merely added for the purj>ose of completing the description given, in order to ascertain her identity. And it did not preclude the proof offered by the plaintiff to prove' the extent of her carrying capacity, for the purpose of showing the damages sustained by him in consequence of the failure to perform the stipulations of the charter.

The verdict seems to have been for a greater sum than that which the evidence appeared to warrant. But as another trial of the action will be necessary because of the improper evidence already considered, a minute examination into the excess will not be required. That will be avoided if the plaintiff should recover another verdict against the defendants, by excluding from the recovery the benefits secured by means of the performance of the outward voyage; and the expenses which would have been necessarily attendant upon the second, so far as the plaintiff would have been subjected to them, in case it had been performed according to the stipulations of the charter.

Both the order denying the motion for a new trial and the judgment should be reversed, and a new trial ordered with costs to the appellants, to abide the event.

Davis, P. J., and Brady, J., concurred.

Judgment reversed, new trial ordered, costs to abide event.