text:
    George N. Adams et al., Resp'ts, v. Stephen N. Olin et al., App'lts.
   Per Curiam.

The referee’s findings are, in our judgment, supported by the evidence, and we see no reason for disturbing bis report upon the facts. His conclusions of law substantially follow the opinion of this general term, upon the first appeal, and there is nothing in the-case as now presented calling for a re-examination of the questions of law which were then discussed. We do not think that the transactions between Mr. and Mrs. Barlow, proved by the new evidence adduced upon the second and third trials, were inconsistent with the existence of an actual indebtedness upon the account under consideration; nor do we think that this new evidence materially affected the conclusions originally arrived at. We think the case has now arrived at a stage when all the questions which have been so severely litigated in this court may be fully and appropriately presented to the court of last resort, and that there is nothing in the record which would justify us in the light of these previous decisions, in again ordering a new trial. The judgment should, therefore, be affirmed, with costs.


source: Caselaw Access Project

license: Public Domain

text:
    Filed January 13, 1893.
    Erwin Strickland v. Richard L. Leggett.
   Motion denied, with ten dollars costs.


text:
    Sarah E. Mellen v. Abner Mellen et al.

   Motion denied, with ten dollars costs.


text:
    Louise Meise v. John H. Doscher et al.

   Motion denied, with ten dollars costs.


text:
    The Pittsfield National Bank v. William H. Bayne et al.

   Motion granted as to plaintiff.


text:
    Schubart v. Kammerer.
   Motion granted; ten dollars costs.


text:
    The People v. The New York Underground Railway Co.
   Application granted.


text:
    Matter of Johnson.
   Motion denied upon appellants paying ten dollars costs^ of motion and stipulating to argue at February general term and perfecting appeal by giving proper undertaking. The costs and stipulation and undertaking to be paid or given within five days after notice of this order.


text:
    The People v. Wilson.
   The appellant has leave to put this case upon the February calendar of this court and file his cases upon appeal and notice the same for argument, and when the case comes up for argument, and thus the appellant has shown his good faith, the court will determine whether they will not set aside the dismissal already taken, and then hear the appeal upon the merits.


author: Per Curiam.

text:
    William H. Schecker, App'lt, v. Edward J. Woolsey, Resp't.
   Per Curiam.

The order should be affirmed, with ten dollars costs and disbursements.


text:
    Joseph Arthur et al., Resp'ts, v. Michael B. Leavitt, App'lt.
   Per Curiam.

The order should be affirmed, with ten dollars costs and disbursements.


text:
    Charles H. Southard, App'lt, v. Charles A. Hammond, Resp't.
   Per Curiam.

We see no reason for interfering with the order appealed from. The order should be affirmed, with ten dollars costs and disbursements.


text:
    The F. Kroeber Clock Co., Resp't, v. Emma H. Cassal, App'lt.
   Per Curiam.

The order should be affirmed, with ten dollars costs and disbursements.


text:
    David A. McLeod, Resp't, v. John H. Devoe, App'lt.
   Per Curiam.

The order should be affirmed, with ten dollars costs and disbursements.


text:
    GENERAL TERM—SECOND DEPARTMENT.
    Filed December 12, 1892.
    George Meurer v. Marie Von Krorner.
   Judgment affirmed for non-submission of papers under stipulation.


text:
    The People ex rel. Laird v. Supervisors of Kings County.
   Order denying writ of mandamus affirmed, with costs.


text:
    In the Matter of Frank L. Ackerly, an Attorney.
   Order that a copy of the charges be served on respondent, and that he answer the same at the next term of this court.


text:
    The People ex rel. Frank Hasbrouck v. The Board of Supervisors of the County of Dutchess, sitting as a Board of Canvassers of the votes cast.
   Motion denied, with ten dollars costs. Justice Barnard not sitting.


text:
    Matter of Settlement of Accounts of Sara N. Worthington, Executrix of Henry R. Worthington, Deceased.
   Motion denied, without costs.


author: Dykman, J.

text:
    Cornelius A. Van Wagener, Resp't, v. William B. Royce et al., Adm'rs, App'lts.
    Motion for reargument.

      B. F. Low, for motion;

      Greene & Bedell, opposed.
   Dykman, J.

This is a motion for a reargument of'the appeal of the defendants in this action.

There is a general statement in the affidavit upon which the motion is based that important facts have been overlooked by tins court, but there is no specification of such facts, and we know of none.

On the contrary, the case received a careful examination here, as our opinion will show, and a re-examination has disclosed nothing that was overlooked by us.

The motion-should be denied, with ten dollars costs and disbursements.

Barnard, P J., and Pratt, J., concur.


text:
    Maria Lydecker, App'lt, v. Samuel Gilchrist, Resp't.
    Motion to open default.
    Ho papers.
   Dykman, J.

This is a motion to open a default taken against the plaintiff, who is the appellant at the last general term of this court.

The cause was tried first in a court of a justice of the peace, where the plaintiff obtained a substantial verdict. Upon a new trial in the county court the defendant obtained a verdict, and the plaintiff has appealed from the judgment entered thereon.

We think the default is excused, and that the plaintiff is entitled to have the case examined upon this appeal.

The motion should, therefore, be granted, with ten dollars costs to the respondent to abide the event.

Barnard, P. J., and Pratt, J., concur.


author: Pratt, J.

text:
    Harrison A. Tucker et al., App'lts, v. Alexander McLean et al., Resp'ts.
    Appeal from judgment in favor of defendants.

      Oliarles M. Stafford, for app’lts;

      James & Thomas H. Troy, for resp’ts.
   Pratt, J.

An examination of the case discloses no errors of law.

The questions to be considered are of fact. The conflict of testimony is great, but we finally conclude that the rules that control our action do not permit us to interfere with the judgment.

When the trial judge, who has seen and heard the witnesses, has determined the facts, the case must be substantially free from doubt to justify a reviewing court in disturbing the decision.

We are not able to say that this case is such, and the judgment must be affirmed, with costs.

Dykman, J., concurs; Barnard, P. J., not sitting.


text:
    In the Matter of the Judicial Settlement of Accounts of Anna Seebeck, Ex'rx, Resp't, v. Anna Tienken, App'lt.
    Appeal from decree of surrogate of Kings county adjudging that appellant had no interest in the estate of John H. Seebeck, deceased.

      Theo. E. Melmn, for app’lt; John E. Bullwirikel, for resp’t,
    ex’rx; W. B. Veeder, for Mrs. Henrietta Ficken and Mrs. Anna M. Jahn, resp’ts;

      Geo. F. Martens, for John H. Tienken, resp’t.
   Pratt, J.

The question here sought to be raised as to the construction of the nineteenth clause of will of John H. Seebeck, deceased, as modified by the third clause of the codicil thereto, has been decided by this general term and must be regarded conclusive until overruled or modified by the court of appeals.

As to the second question, whether the share 'of the income due Henry M. Tienken at the time of his death shall be charged with its proportionate share of the taxes on the realty, we think the decision of the surrogate is right. See 115 N. Y., 450; 26 St. Rep., 382, and cases there cited.

Decree affirmed.

Dykman, J., concurs; Barnard, P. J., dissents.


text:
    In the Matter of the Revocation of the Last Will and Testament of Homer A. Nelson, Deceased.
    Appeal from order or decree of surrogate of Dutchess county, denying motion to revoke probate of will.

      Geo A. O. Barnett, for app’lt;

      Frank B. Lown; (John Haelcett & H. M. Taylor, of counsel), for resp’t.
   Dykman, J.

A careful consideration of the case shows that there is no material difference between the testimony in this case and that which was before us upon the former appeal concerning this same will.

The order should, therefore, be affirmed, with ten dollars costs and disbursements.

Barnard, P. J., and Pratt, J., concur.


author: Barnard, P. J.

text:
    Joseph J. White, App'lt, v. George C. Wood et al., Resp'ts.
    Appeal from judgment in favor of defendants.

      Wm. J. Qaynor, for app’lt;

      Wheeler H. Peckham, for resp’ts.
   Barnard, P. J.

The facts proven on the new trial are not materially different from those passed upon by the court of appeals upon the former appeal herein. White v. Wood, 129 N. Y., 527; 42 St. Rep., 174.

The judgment should, therefore, be affirmed, with costs.

Dykman and Pratt, JJ., concur.


text:
    Viola Pierce, Resp't, v. George Pierce, App'lt.
    Appeal from judgment in favor of plaintiff.

      SPrahan & McOlung, for app’lt;

      Sehlosser & Wood, for resp’t.
   Dykman, J.

This action was commenced by a wife against her husband for a separation on the ground of abandonment and cruelty.

The abandonment was proved upon the trial and the trial judge rendered judgment for the plaintiff.

The charge of cruelty was the commencement of an action by the husband against the wife for an absolute divorce for adultery.

Upon the trial of this action there was an effort to prove the adultery, but it failed.

There was no defense to the action, and the judgment should be affirmed, with costs.

Pratt, J., concurs; Barnard, P. J., not sitting.


text:
    General Term—Fifth Department.
    Filed January 18, 1893.
    Mary Ensign, Individually, and as Adm'rx, App'lt, v. Nathaniel Jarvis, Jr., and Cornelia Hamilton, Adm'rx, Resp'ts.
   Judgment appealed from affirmed on opinion of Daniels, J., at special term.


text:
    Edward W. Hawkins, App'lt, v. The N. Y., Lake Erie & Western R. R. Co., Resp't.
   Order denying plaintiS’s motion for a new trial affirmed, with costs, on authority of the decision in this case as reported in 55 Hun, 51; 28 St. Rep., 59. Lewis J., dissenting.


text:
    The People ex rel. George R. Van Alstyne, App'lt, v. Burton H. Davy, Sheriff, Resp't.
   Order appealed from affirmed, with costs.


text:
    Frances Connoly, Resp't, v. The Buffalo, Rochester & Pittsburg Railroad Company, App'lt.
   Judgment and order appealed from affirmed.


text:
    Etta L. Alexander, App'lt, v. The Rochester City & Brighton Railroad Co., Resp't.
   Order granting a new trial appealed from affirmed, with costs to abide the event.


text:
    Charles H. Shepherd, Adm'r, v. The Northern Central R. Co.
   Plaintiff’s motion for a new trial denied, with costs, and judgment directed for the defendant on the nonsuit.


text:
    William T. Long et al., App'lts, v. Bertha Long, Resp't.
   Judgment appealed from affirmed, with costs, on opinion of James C. Smith, referee.


text:
    Lena Hahke, by Guardian, Resp't, v. Adam Freiderick, App'lt.
   Judgment and order appealed from affirmed.


text:
    Anna E. Lick, Resp't, v. The Town of Moravia, App'lt.
   Court declines to consider this appeal (submitted without argument), for the reason that the papers contained in the appeal book are not certified to be “a copy of the papers used before the court on the hearing of the motion,” as required by § 1353 of the Code of Civil Procedure; also, that the case which is part of the appeal book was not procured to be settled and signed by the judge before whom the action was tried, as required by 997 and 999 of the Code of Civil Procedure and rule 35 of General Rules of” Practice.


text:
    Nathan Stein et al., Resp'ts, v. Frederick Maggs et al., App'lts.
   Judgment appealed from affirmed on opinion of Adams, J., at special term.


text:
    The Moravia National Bank, Resp't, v. The Groton Iron Bridge Company, App'lt.
   Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    Anna Grosser, Resp't, v. The City of Rochester et al., Impl'd, App'lts.
   Judgment appealed from affirmed, with costs, on authority of the decision of this court on former appeal, reported 60 Hun, 379; 38 St Rep., 572.


text:
    Michael W. Anguish, App'lt, v. Frederick Craft, Resp't.
   Judgment and orders appealed from affirmed. Lewis, J., not sitting.


text:
    The Rochester Distilling Company v. Asa Razy.
   Motion for a reargument denied. Leave to appeal to court of appeals granted.


text:
    W. Cleveland Allen v. Margaret G. Allen et al.

   Motion to modify order of this court so as to proude for compensation to guardian ad litem granted, and the amount fixed at $250, besides disbursements, payable out of the estate.


text:
    In the Matter of the Final Judicial Settlement of Accounts of Bernard McGorray, Ex'r, etc., of John M. McGorray, Dec'd.
   Motion to modify order denied.


text:
    Sidney B. Roby, App'lt, v. Thomas J. Reynolds, Resp't.
   Defendant’s motion for a reargument, or for leave to appeal to court of appeals, denied.


text:
    Catherine Mehegan, Resp't, v. The N. Y. C. & H. R. R. R. Co., App'lt.
   Motion by plaintiff to modify order of this court so ns to show that the judgment and order appealed from were reversed on questions of law alone, denied.


text:
    Albert G. Smith v. Charles E. Mott.
   Reargument granted.


text:
    Lawrence Saltsman, Resp't, v. The N. Y., L. E. & W. R. R. Co., App'lt.
   Motion for leave to appeal to court of appeals denied.


text:
    In the Matter of the Probate of the Last Will of George A. Bartholick, Dec'd.
   Decree of the surrogate of Monroe county appealed from affirmed, with costs to the respondent Kirley payable out of the estate. Haight, J., not voting.


text:
    Frances M. Noble, Resp't, v. Clark D. Knapp, Ex'r, App'lt.
   Judgment and order appealed from affirmed, with costs.


text:
    Daniel Torpy et al., App'lts, v. Reuben Torpy et al., Resp'ts.
   Judgment appealed from affirmed, with costs.


text:
    Edmund C. Whitney et al., Resp'ts, v. Joseph Davis et al., App'lts.
   Order appealed from affirmed, with ten dollars costs and disbursements. Haight, J., not sitting.


text:
    New York Common Pleas.
    Filed December 22, 1892.
    Alfred Shrimpton & Sons, Limited, App'lt, v. Charlotte Ohlweiler, Resp't.
    Appeal from first district court.
   Judgment reversed, new trial ordered, with costs to the appellant.


text:
    Felix Amablie, Resp't, v. Christian Wehrman, App'lt.
    Appeal from ninth district court.
   Judgment affirmed, with costs.


text:
    Adolphe J. Cohen, Resp't, v. Henry Kochler et al., App'lts.
    Appeal from sixth district court.
   Judgment reversed, new trial ordered, costs to appellant to abide the event.


text:
    Bernhard Dettelbach, Resp't, v. Hannah Ochs, App'lt.
    Appeal from first district court.
   Judgment reversed, new trial ordered, costs to appellant to abide the event.


text:
    John Dunn, Resp't, v. Michael J. Curran, App'lt.
    Appeal from ninth district court.
   Judgment affirmed, with costs.


text:
    Henriette Fisher, Resp't, v. Elias Reis, App'lt.
    Appeal from seventh district court.
   Judgment affirmed, with costs.


text:
    Joseph Gallissi, Resp't, v. The Citizens' Savings Bank, App'lt.
    Appeal from first district court.
   Judgment reversed, new trial ordered, costs to abide the event.


text:
    Annie Halpin, Resp't, v. Calman Hurwitz, App'lt.
   Judgment reversed, new trial ordered, costs to abide the event.


text:
    Birdseye L. Sherman. Resp't, v. William Nelson, App'lt
    Appeal from sixth district court.
   Judgment affirmed, with costs.


text:
    Jacob Stiller, Resp't, v. D. Rubin, App'lt.
    Appeal from fourth district court.
   Judgment affirmed, with costs.


text:
    Filed December 23, 1892.
    James Warnock, App'lt, v. Louis Bauer, Resp't.
   Judgment affirmed, with costs.


text:
    Filed January 3, 1893.
    Hugh J. Reilly, Resp't, v. Henry Seibert, App'lt.
   Motion to strike cause off calendar and for judgment of affirmance of appeal for nonservice of printed papers granted, with costs.


text:
    In the Matter of the Assignment of John W. Meyers et al. to William J. Nicholson.
   Motion to withdraw appeal granted upon payment of ten dollars costs.


text:
    Charles H. Southard, Resp't, v. Frederick S. Meyers et al., App'lts.
   Judgment affirmed, with costs.


text:
    Filed January 4, 1893.
    Nicholas Dam, App'lt, v. Francis Ochs, Resp't.
   Judgment affirmed, with costs


text:
    John J. Nolan, App'lt, v. The Harlem Bridge, M. & F. R. Co., Resp't.
   Order affirmed, with costs.


text:
    Michael Tighe, App'lt, v. Morris Cohen et al., Resp'ts.
   Order reversed, with costs.


text:
    Filed January 6, 1893.
    Emily Cordice Marvin, Resp't, v. James H. Marvin et al., App'lts.
    Appeal from city court, general term.
   Ordered that the order of the general term be reversed, and the order of the special term affirmed, with costs.


text:
    Filed January 9, 1893.
    Ebenezer T. Baker, App'lt, v. D. Edgar Codding et al., Resp'ts.
    Appeal from city court, general term.
   Appeal dismissed, with costs.


text:
    Mary Walsh, Resp't, v. Whitman N. White, App'lt.
    Appeal from city court, general term.
   Order reversed, with costs.


text:
    Filed January 10, 1893.
    Sigmund Hirschfelder, Resp't, v. The Locey Mining & Mf'g Co., App'lt.
   Order reversed, with leave to plead on payment of costs.


text:
    Robert A. Johnson, App'lt, v. Julius Jungeman, Resp't.
    Appeal from seventh district court.
   Judgment affirmed, with costs.


text:
    Fanny Levy, App'lt, v. Samuel Fisher, Resp't.
    Appeal from seventh district court.
   Judgment affirmed, with costs.


text:
    Waldemar Wennermark, Resp't, v. The Mutual Life Ins. Co., App'lt.
    Appeal from first district court.
   Judgment reversed, new trial ordered, costs to the appellant to abide event


author: Gildersleeve, J.

text:
    New York Superior Court—General Term.
    Filed January 3, 1893.
    David Moss et al., Resp'ts, v. The Manhattan Railway Co. et al., App'lts,
    Appeal from judgment of special term.

      L. O. Desear (Joseph B. Reilly, of counsel), for resp’ts;

      Davies & Ra/pallo (Herbert Barry, of counsel), for app’lts.
   Gildersleeve, J.

The judgment enjoins and restrains the maintenance and operation of defendants’ elevated railroad in front of premises No. 371 Pearl street, unless they pay to plaintiffs the sum of $3,000; and it also awards to plaintiffs $1,822.84, damages and costs.

The action seems to have been carefully tried; no exceptions were taken to the admission or rejection of evidence; and a fair preponderance of evidence sustains the findings of the court below and justifies the judgment.

It follows that the judgment appealed from must be affirmed, with costs.

Freedman and McAdam, JJ., concur.


text:
    Arthur Fuller et al. Resp'ts, v. Charles Wise et al., App'lts. George A. Vroom, Resp't, v. Charles Wise et al., App'lts.
    Appeals from orders of the special term.

      Horwitz <6 Hirshfield (Otto Horwitz, of counsel), for app’lts;

      Henry A. Root (Thaddeus D. Kenneson, of counsel), for resp’ts.
   Gildersleeve, J.

This is an appeal from an order made at special term denying a motion made by Charles Wise, the defendant, to have a judgment, that had been entered herein for costs, marked satisfied in full of record, upon the ground that it had been fully paid in settlement of another matter.

. The only question involved on the motion below, and that is now presented for consideration on this appeal, is one of fact. We have carefully examined the record, and cannot find such a preponderance of evidence in support of the defendant’s contention as to warrant us in disturbing the order made by the learned judge below.

The order appealed from must be affirmed, with ten dollars costs and disbursements.

Freedman and McAdam, JJ., concur.


text:
    Frank M. Gillett et al., Resp'ts, v. William I. Whiting, App'lt.
    Appeal by defendant from judgment entered in favor of the plaintiffs upon the verdict of a jury, and from order denying defendant’s motion for a new trial.

      J. A. Shoudy, for opp It;

      Ira D. Warren, for resp’t.
   Per Curiam.

This case has been retried in strict conformity with the opinion of the court of appeals upon the former appeal reported in 120 N. Y., 402; 31 St. Rep., 495. There was sufficient evidence upon the question of ratification to require the submission of the question to jury, and the record discloses no error in the admission or exclusion of evidence or in the instructions given to, or withheld from, the jury. Nor can the verdict be held to be against the weight of the evidence.

The judgment and order should be affirmed, with costs.

Freedman and McAdam, JJ., concur.


text:
    Mary Cluff, Pl'ff, v. Henry S. Day et al., Def'ts.
    Exceptions ordered heard at general term in the first instance after verdict for plaintiff by direction of the court.

      Robert Owen {Edward B. Whitney, of counsel), for pl’ff;

      Chas. E. Wilson, for def’t Day; Isaac Fromme, for def’t Thomson.
   Per Curiam.

The exceptions taken by the defendants should be overruled and the plaintiff should have judgment on the verdict, with costs.

Freedman and McAdam, JJ., concur.


author: Freedman, J.

text:
    John Townshend, Resp't, v. Daniel Dull, App'lt.
    Appeal from judgment for plaintiff on demurrer to complaint.

      Charles Haldane, for app’it;

      John Townshend, for resp’t.
   Freedman, J.

This is an appeal from a judgment in favor of the plaintiff after decision overruling defendant’s demurrer to complaint. The appellant has not appealed from the order for judgment, and, as the judgment follows the order, the appeal might be disposed of on that ground. But the judgment is right on the merits for the reasons assigned by the learned judge below.

The judgment should be affirmed, with costs.

Gildersleevb, J., concurs.


text:
    Elizabeth Buckel, App'lt, v. Anna Suss, Resp't.
    Appeal from judgment of the trial term, dismissing complaint, and from order denying motion for new trial.

      Oharles Steclcler, for app’lt;

      Samuel TJntermeyer, for resp’t.
   Per Curiam.

For the reasons set forth in the opinion of the court below, the judgment and order appealed from are affirmed, with costs.

Freedman and Gildbrslebve, JJ., concur.


text:
    The J. Ottman Lithographing Co., Resp't, v. The Equitable Bank, App'lt.
    Appeal from judgment at trial term rendered by the court without a jury.

      Goepel & Raegener (Benj. B. Kenyon, of counsel), for resp’t;

      Charles F. McLean (Edward W- Crittenden, of counsel), for app’lt.
   Per Curiam.

The judgment appealed from is affirmed, with costs, on the opinion of the court below,

Freedman and Gildbrslebve, JJ., concur.


author: O’Brien, J.

text:
    In the Matter of the Estate of Amelia G. Ullmann, Deceased.

      (Court of Appeals,

      Filed March 7, 1893.)

    Collateral inheritance tax — Power of surrogate to construe will. The surrogate has power, in collateral inheritance proceedings, under § 15 of the act, to determine the invalidity of a provision of the will, and that the property subject to tax has not passed to the legatees or devisees, but to the heirs at law or next of kin; especially where everyone interested in the property has so treated it and acted accordingly.
    Appeal from order of the supreme court, general term, first department, reversing decree of surrogate in collateral inheritance tax proceedings.

      Horace Russell, for app’lt; De Lagnel Berier, for resp’ts.

       Reversing 50 St. Rep., 748.

   O’Brien, J.

The order of the general term, from which this appeal was taken, reversed a decree of the surrogate of the county of New York, assessing and imposing a tax upon certain heirs at law of Amelia Gr. Ullmann, who died in the year 1890, leaving a will, which was admitted to probate. This tax was imEosed by the surrogate under the authority of chapter 483 of the iaws of 1885, amended by chapter 713 of the Laws of 1887, commonly known as the collateral inheritance tax law. The deceased, by her will, gave the income of all her property to her husband, Daniel Ullmann, for and during his life and made certain other bequests which were conceded to be valid The bulk of her estate she attempted to dispose of in the residuary clause to her executors, of whom her husband was one, upon certain trusts which were invalid as contravening the statute against perpetuities, as the estate was sought to be vested in the Society for the Prevention of Cruelty to Animals after the expiration of four lives in being at the death of the testatrix. Objection was made to the probate of the will by the heirs at law on account of the invalidity of these provisions. The society, which by the terms of the will would ultimately be entitled to the property if the residuary clause was valid, as well as the executors, admitted that the objections were good and that the disposition in trust was void This concession would leave the specific legacies and a life estate to the husband contained in the will to stand, but the remainder of the property, not having been validly disposed of by the deceased, would pass under the statute as in cases of intestacy, the personal property to the husband, there being no children, and the real estate to the heirs at law. All parties interested in the estate recognized this situation and acted accordingly. The society thereupon purchased the real estate from the heirs at law and they conveyed the same to it by quit claim deeds for a consideration representing substantially its full value. In the negotiations which culminated in this settlement it was foreseen that the heirs might be liable to pay the tax in question, and, therefore, a sufficient sum for that purpose was retained by the counsel for the society for that purpose if it was determined that they were liable for its payment.

The will, however, containing some provisions that were valid, was admitted to probate by consent of all parties. The executors by application to the surrogate initiated this proceeding for the assessment and adjustment of the tax. The heirs at law and all parties interested were for this purpose cited and appeared before the surrogate, who had before him not only the will, which upon its face showed the invalidity of the provision referred to with respect to the residuary estate, but, also, all the facts above stated. The result was that the heirs were assessed for that portion of the estate which passed to them under the statute, and the surrogate treated the residuary clause, as the heirs and all parties interested in the estate had treated it, as void. Three of the heirs, only, questioned the action of the surrogate and appealed to the general term, where the order of the surrogate was reversed, as already stated. The reversal proceeded upon the ground that the surrogate had no power in such a proceeding to determine the invalidity of any provision of a will. While we think that this case does not necessarily turn upon that question, yet if it did there would be no difficulty in sustaining the decree of the surrogate. The fifteenth section of the statute, under which the tax was assessed, provides that, “ The surrogate’s court in the county in which the decedent was a resident at the time of his death shall have jurisdiction to hear and determine all questions in relation to the tax arising under the provisions of this act” Aside from the ordinary jurisdiction of the surrogate this is a special grant of power in broad and comprehensive language, and there can be no good reason for hampering the power thus conferred by any construction that would take from him the authority to decide every question that may arise in the proceeding before him which may be necessary in order to fully discharge the duties imposed upon him by the act Every officer charged with the duty of executing the taxing, power, "whether it be a surrogate or a town assessor, must necessarily decide, in a judicial capacity, important questions of law in order to perform the duties of his office. Ordinarily such decisions do not, like judgments in actions, conclude the parties as to the same question in subsequent proceedings instituted for some other purpose, although in all such proceedings for the assessment of the tax it ought to and doubtless would, until reversed or set aside. In re Wolfe, 137 N. Y., 205; 50 St. Rep., 406.

The surrogate must decide whether any property of a deceased person has passed to another under a will or under the laws of intestacy before he can perform the duty imposed upon him. It may sometimes happen that the property of the deceased passes in both ways. The fact that there is a will, and that it has been admitted to probate, does not necessarily determine the ownership or the transmission of the property. When the surrogate looks into the will some of its dispositions may be so clearly void as to» warrant him in holding that nothing has passed by virtue of them, but that the property embraced therein has passed to heirs or next of kin under the statutes of descent ór distribution. In the numerous cases that have been passed upon by this court recently, arising under this statute, we have held that the surrogate was clothed with power, and that it was his duty to decide questions arising under wills or under the statutes quite as intricate and important as that arising out of the residuary clause of the will in this case. In re McPherson, 104 N. Y., 306; 5 St. Rep., 680; In re Enston, 113 N. Y., 174; 22 St. Rep., 569; In re Sherwell, 125 N. Y., 379; 35 St. Rep., 403; In re Romaine, 127 N. Y., 80; 38 St. Rep., 76; In re Stewart, 131 N. Y., 274; 43 St. Rep., 171; In re Wolfe, 137 N. Y., 205; 50 St. Rep., 406; In re Prime, 136 N. Y., 347; 49 St. Rep., 658; In re Swift, 137 N. Y., 77; 50 St. Rep., 81.

In the settlement of the accounts of executors and the distribution of the personal estate under a will, the surrogate is empowered to determine the validity of testamentary provisions under statutes that are not more explicit or comprehensive than the one now under consideration. Code, §§ 2472, 2481, 2743; In re Verplanck, 91 N. Y., 439; Purdy v. Hayt, 92 id., 446; Riggs v. Cragg, 89 id., 479; Garlock v. Vandevort, 128 id., 378; 40 St. Rep., 418; In re Wagner, 119 N. Y., 32; 28 St. Rep., 266; In re Cager, 111 N. Y., 343; 19 St. Rep., 497.

The jurisdiction conferred by the statute upon the surrogate to hear and decide all questions in relation to the tax imposed by its provisions upon persons to whom property has passed from a decedent is, we think, broad enough to warrant the surrogate in holding, in a case like this, that,the property which is the subject of the tax has not passed to the legatees or devisees under the will, but to the heirs at law or next of kin. But in this proceeding it appeared before the surrogate not only that this provision of the will of Mrs. Ullman, was invalid, but that everyone interested in the property so treated it and acted accordingly.

It appeared that the beneficiaries under the residuary clause conceded its invalidity, and abandoned all claim to the property to the heirs. That the latter sold it and received the consideration therefor, and thus that they, as matter of fact, took it under the statute, and that it did not pass under the will, and further, that out of the price received for the property they had made provisions for the payment of the tax in case it was held that they were liable for its payment In view of all this, it would be an indefensible rule that would compel the surrogate to close his eyes to the facts and to the law arising from the disposition of the will and to still decide that the tax should be assessed upon the legatees or devisees named therein, though he knew that they did not and could not receive any part of it It was shown that the heirs were not only entitled to the property, but that they actually received it, and hence that it passed to them as in case of intestacy.

It follows that the order of the general term must be reversed and the decree of the surrogate affirmed, with costs in all courts to the appellant against the respondents.

All concur.


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    Mary G. Morris, Resp’t, v. Alfred G. Sickly, Impl’d, App’lt.

      (Court of Appeals,

      Filed March 7, 1893.)

    Motion to amend remittitur.

      L. O. Reed, for motion; P. Coyne, opposed.

       See 45 St. Rep., 735.

   Per Curiam.

The appellant was the only defendant who appeared in the action, defended the same and appealed from the judgment rendered therein. The other defendants did not appear, and judgment went against them by default, and they had no standing to appeal or appear in this court.

By inadvertence we reversed the entire judgment, while we should have reversed it only as to the defendant Alfred Gr. Sickly. Our judgment should now be modified as claimed by the respondent, and then the defendants in default can move in the court below to have their defaults opened, and thus to obtain the benefit of our decision upon such terms as that court may think proper to impose.

The motion should be granted, without costs to either party.

All concur.


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    Jacob Schwartz et al., Resp’ts, v. John Wood, App’lt.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1893.)

    1. Contract — Breach—Evidence.
    In an action to recover damages for a refusal to receive busts of a certain person manufactured under a contract requiring them to be made from sittings and to be a perfect likeness, evidence of persons who had never seen such person, that they were likenesses of a photograph shown them and perfect likenesses of such person, is improper.
    3. Same — Test of knowledge.
    Where a witness has sworn that such busts were a perfect likeness, it is proper on cross-examination to ask the witness if a photograph shown him is one of such person.
    3. Same.
    Where a witness has testified to a conversation, including admissions by defendant, and stated that that was all of the conversation, the defendant should be permitted to give the whole conversation, and not be confined to a denial or a statement whether he had expressed an opinion on the subject'in question.
    4. Same — Witness.
    One who has been well acquainted for many years with the person represented by such busts is competent to testify on the question of the likeness to such person, although not an expert.

      Appeal from judgment in favor of plaintiffs, entered on report, of referee.

      Charles M. Stafford, for app’lt; Henry C. Bryan (Thomas F. Byrne, of counsel), for resp’ts.
   O’Brien, J.

The action was brought by plaintiffs against the defendant for breach of contract, upon his refusal to accept certain terra cotta busts of the Reverend T. De Witt Talmage. The contract sued upon was in the following terms:

Brooklyn, January 27, 1890.
“ Please make for me fifty (50) busts of Rev. T. De Witt Talmage, I to secure Mr. Talmage’s consent to sit for your sculptor as soon as possible, for which I agree to pay six dollars a piece, net cash; to be delivered as soon as finished, at 223 Fulton street. The bust is to be perfect likeness of Mr. Talmage, and to be of first-class material, ‘ terra paca.’ I am to have the exclusive sale of these busts in Brooklyn, and Messrs. Schwartz not to sell to anyone for less than six dollars each.
“ John Wood.”

To show performance on plaintiffs’ part, and breach on the part of the defendant, the former presented evidence tending to show that at the time the contract was signed the defendant delivered certain photographs, one of which was represented to be a good likeness of Mr. Talmage. This circumstance seemed to have controlling weight in the mind of the referee, judging from his rulings throughout the case ; for though it was testified by the artist who was brought to the defendant at the time of the making of the contract for the purpose of arranging for sittings by Mr. Talmage, and though the written contract itself provided that the defendant was to secure the consent of Mr. Talmage to sit for the sculptor, and though the evidence showed that the bust was made from such sitttings as were given by Mr. Talmage, supplemented, as they were, by the photograph or photographs which, it was claimed, were delivered by the defendant, these seem to have been entirely overlooked, and given little or no weight, in determining the question upon the issues raised by the pleadings. The defendant’s refusal was principally based upon the ground that the plaintiffs had failed to comply with that portion of the contract which required that the bust should be a perfect likeness of Mr. Talmage. Upon plaintiffs’ part no serious effort was made to show that this condition was complied with. But several witnesses were introduced to establish the similarity between the photograph and the bust; only one witness, besides the sculptor employed by plaintiffs to make the bust, being produced by plaintiffs who claimed to have any personal acquaintance with Mr. Talmage. This witness did testify that the likeness was a good one. But on the part of the defendant a number of witnesses, who from personal knowledge, and from having made photographs of him, were competent to speak, supported the defendant’s contention that the bust was not a good likeness. Were we to consider this judgment upon the question of the preponderance of evidence, it would seemingly incline in defendant’s favor ; and such, we think, would have been the conclusion reached by the referee, were it not for the mistake into which he seems to have fallen, of regarding the contract which had been entered into by the parties as requiring only, on the part of the plaintiffs, the furnishing of a bust which was to be a good likeness of a photograph. It is not necessary, however, for us to dispose of this appeal upon the question of the weight of evidence; so many errors having crept into the record upon rulings made by the referee on the admission and exclusion of evidence, and all against the defendant, and so material upon the question at issue, that we have no hesitancy in reversing the judgment upon this ground. It is unnecessary to refer to all of them; a few, alone, being sufficient to show that the defendant is entitled to a new trial.

Two of plaintiffs’ witnesses, upon defendant’s objection that the contract provided that the bust should be made from sittings, and was to be a perfect likeness of Mr. Talmage, were allowed, though they had never seen Mr. Talmage, to testify that the bust was a likeness of the photographs, and a correct likeness of Mr. Talmage. Again, another witness for plaintiffs, upon direct examination, was allowed to testify to a conversation with the defendant, in which the latter was claimed to have pointed to the bust, and said that it was a good likeness of Mr. Talmage, to which the witness replied that it was, stating that that was the whole conversation. Upon the cross-examination of this same witness, the defendant’s counsel asked him to state whether a picture which he handed him was a photograph of Mr. Talmage. This was objected to by plaintiffs, and the objection was sustained, to which ruling the defendant excepted. We think that, inasmuch as this witness, upon direct examination, had testified that the bust was a good likeness of Mr. Talmage, it was competent, on cross-examination, to show the extent of his knowledge upon the subject. With respect to the conversation, moreover, detailed by this witness as having been had with the defendant, the defendant, when called, and asked what was the whole conversation, was, under plaintiff’s objection, and the rulings of the referee, prevented from giving it. True, the defendant was allowed to testify that he never had any such conversation with the witness McLean regarding the bust; but the evidence called out by the question to the defendant by his counsel, to state the whole conversation, the referee prevented him from giving; he himself confining the inquiry by asking the witness to state “ if he had personally expressed any opinion about the bust.”

Another serious error was that committed in the ruling of the referee, excluding the entire testimony of a witness called for the defendant to prove that the busts were not a likeness of Mr. Talmage, or of any resemblance whatever. When the introductory question was put to this witness, as to how long he had been acquainted with Mr. Talmage, it was objected to upon the ground that the defendant should not be allowed to prove anything by this witness ; and, notwithstanding the statement of counsel that this witness was a trustee of the Brooklyn Tabernacle, and had been for many years, and was well acquainted witli Mr. Talmage, and that he was competent as a witness upon the question of whether the bust was a likeness of Mr. Talmage or not, he was prevented, at the very outset, from testifying; the referee excluding it upon the ground that such evidence would not qualify him as an expert. Or, to put it in the referee’s own language, he sustained the objection, saying: “ I shall exclude any further evidence that does not qualify as expert evidence.” We think that in this the referee erred. As well said in Barnes v. Ingalls, 39 Ala., 193 : “ Although experts only may be competent as witnesses to testify whether or not a photograph is well executed, yet to enable a person to determine whether the picture resembles the original requires no special skill or knowledge of the photographic art; and on that question, consequently, a- person for whom such a picture has been taken, although possessing no special skill or knowledge of the art, may testify that the picture was a good likeness. * * * The fact of likeness or resemblance is one open to the observation of the senses, and no peculiar skill is requisite to qualify one to testify to it.”

Without further examining the case, we think we have indicated sufficient to show that errors were committed in the rulings made with respect to testimony material to, and affecting, the merits of the action. Such errors require that the judgment be reversed, with costs and disbursements to appellant to abide the event, and that a new trial be had before another referee.

Barrett, J., concurs; Van Brunt, P. J., not sitting.


author: O’Brien, J. Van Brunt, P. J. Barrett, J.

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    In the Matter of the Petition of James H. Heroy et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1893.)

    Executobs and administbatobs — Sale of decedent’s bead estate.
    Testator’s will did not mention his debts nor direct then- payment. It gave his estate to the executors during the life of his wife, with remainder to his children, and gave the executors authority, if they shall deem it for the best interest of the est ¡te, to sell the real estate, or any part thereof, in such manner as they shall deem best. Held, that the power of sale was discretionary and not enforcible by creditors, and the debts were not charged upon the real estate, a id hence that a proceeding by credi ors under § 2749 of the Code, for the sale of real estate to pay debts, could be maintained.'
    Appeal from decree of surrogate of New York, denying petition for a sale of the real property of William Campbell, deceased, for the payment of creditors.

      Niles & Johnson (Henry B. Johnson, of counsel), for app’lts; Thomas C. Ennever, for resp’ts, Joseph Campbell et al.; Arnoux, Ritch & Woodford, Martin & Smith and George H. Hart, for other respondents.
   O’Brien, J.

By their application to the surrogate the petitioners sought to enforce the sale of the real estate of which the decedent died seized, and have the proceeds thereof applied to the payment of their debts, pursuant ’to the provisions of the Code of Civil Procedure, by § 2749 of which “real property of which a decedent died seized may be disposed of for the payment of his debts and funeral expenses, as prescribed in this title, except where it is devised expressly charged with the payment of debts.” In disposing of the application, the learned surrogate says: “ It is only necessary to consider one question, viz., whether there is a power of sale in the will which could be exercised for the payment of debts.”

And again he says: “ The point to be decided is whether a valid power of sale is created by the tenth clause of the will; and, if there is a power of sale, whether it is one for general purposes, and, if exercised, whether from the proceeds arising therefrom the debts could be paid.”

After analyzing the provision of the will, and referring to two cases, In re Powers, 124 N. Y., 361; 36 St. Rep., 347, and In re Juch’s Estate, 43 St. Rep., 802, he thus concludes: “The case at bar would seem to be equally strong, if not stronger, than the cases cited as evidencing an intention on the part of the testator to give a discretionary power of sale to his executors, to be exercised by them not only for purposes which might be favorable and profitable to the beneficiaries and legatees, but also for the purpose of paying his debts, should occasion arise therefor, viz.: an inadequacy of personal property.”

Upon this conclusion that the power of sale was unlimited, and broad enough to include a power for the payment of debts, he denied the application, and from the order of denial this appeal is taken.

By the answer the executors alleged that, pursuant to the power of sale contained in the will, they had sold one of the pieces of real estate of which their testator died seized, but whether or not the proceeds arising therefrom would have been sufficient to pay the petitioners’ claim is not alleged. As this allegation cannot be regarded as equivalent to a statement that there was sufficient personal property with which to pay the debts, it must be assumed upon this appeal, as no doubt it was by the learned surrogate, that this circumstance of a sale in no way affected the question which was presented relating to the petitioners’ right to the summary remedy provided by the Code for the application of the decedent’s real estate to the payment of debts, the personal property being insufficient The testator, by his will, makes no mention of debts, nor does the will contain the usual direction for the payment thereof by the executors, being silent with reference thereto. After payment of certain bequests, he gives, devises, and bequeaths “all the rest, residue, and remainder of my real and personal estate in trust,” to executors, to take possession, manage, and control the same, receive the rents and profits therefrom, during the life of his wife.

After her death he gives, devises, and bequeaths all his estate, both real and personal, to his children, to six of whom their shares are given absolutely, and to the seventh a life interest, with a direction that upon the death of this child the one seventh is to revert to and form part of the estate, and to be divided among the other children. In addition to giving authority to the executors to collect and receive the rents, issues and income of the estate, and to dispose of any of the personal property, by the tenth clause of his will he confers, with respect to his real estate, the following power upon the executors: “ Tenth. If at any time my executors, or such of them as shall have qualified, the survivors or survivor of them, shall deem it for the best interest of my said estate that any part or parts or all of my real estate should be sold, then I -authorize and empower my executors, as such, and the survivors and survivor of them, to sell and dispose of any real estate of which I may die seized or interested in, and any part or parts thereof, upon such terms, and in such manner, as they shall deem best, and for that purpose to make, execute, and acknowledge all necessary deeds of conveyance therefor.”

It will thus be seen from a reading of the will that the testator did not devise any part of his real estate expressly charged with the payment of debts, nor was there any imperative direction to the executors to change the character of his estate as he left it; but the real estate was devised to his wife for life, with remainder over to his children, subject to being divested by the execution of the power of sale conferred upon the executors. Whether or not, under the provisions of such a will, a general power of sale such as is here given will prevent the enforcement of the summary right of a creditor to have the real estate applied in payment of debts, can best be determined by resort to some of the cases showing the principles upon which the decisions in these cases proceeded. In the first class may be grouped those wherein, by the will, the real estate is devised expressly charged with the payment of debts. There the Code governs, and would prevent the creditor’s enforcing a sale of the real estate. Another class, directly opposite, is, where the estate is devised, and no intention to charge the debts upon the same is shown, resort may be had to the real estate. Thus, in Re McComb, 117 N. Y., 378; 27 St. Rep., 259, it was held that a discretionary power of sale of real estate, given to executors for the benefit of devisees with a direction to apply the proceeds to their use, may not be converted into a power of sale to pay debts; that the doctrine of equitable conversion is not applicable to such a case Under a third head may be grouped a class of cases like the one referred to by the learned surrogate, In re Powers, supra, and Erwin v. Loper, 43 N. Y., 521, where the principle has been applied that, where executors under power of sale, given by the will, sell real estate, the avails become assets in their hands for the payment of debts and legacies, and to be accounted for the same as any other assets. The residue, after payment of legacies and debts, belongs to the devisees to whom the lands have been devised, subject to the executor’s power of sale. It will thus be seen that the distinction between the cases last referred to and the class of cases like that of McComb is due to the fact that in the McComb case a discretionary power of sale was to be exercised for the benefit of devisees; whereas, in the class under which fall the cases of Erwin v. Loper and In re Powers, the power of sale was general and unrestricted, being given for the purposes of paying off encumbrances, protecting the real estate, or more equitably or conveniently dividing it, and which had, by executors, been exercised, leaving in their hands the resultant funds which, in the course of administration, could be applied to the payment of debts. In one class there is a devise of real estate in specific parcels; but in the other class, where the real estate is not specifically devised, and a general unrestricted power of sale is given, which is exercised, and the property sold, the proceeds arising therefrom are applicable to the payment of debts. Under the latter head may be cited the cases referred to in Re McComb, 117 N. Y., 383; 27 St. Rep., 259, as follows:

“In Glacius v. Fogel, 88 N. Y., 444, the entire real estate was devised to the executors, who were to divide and distribute the proceeds. The sales were for the benefit of the estate and of its purposes, and not for the sole benefit of the devisees. In Hood v. Hood, 85 N. Y., 561, the real estate again was devised to the executors, in trust, to sell, and hold and distribute the proceeds as money. * * * In Kinnier v. Rogers, 42 N. Y., 531, the court added that, since there was no ground for an inference that the testator intended to appropriate his land to the payment of debts, the power of sale could not be exercised for that purpose.”

Although here the real estate was devised, subject to being divested by the exercise of the discretionary power vested in the executors, we are inclined to think that had such power been exercised and the property sold, and had the executors, in answer to the application of the creditor, shown that they held the proceeds of the real estate which could be administered upon and the debts paid, then the case and principle would be covered by the class of cases, to which reference has been made, of Erwin v. Loper, and In re Powers. Here, however, assuming that the personal property and the proceeds of the piece of real estate sold were insufficient to pay debts, the question is thus presented whether the creditor can enforce the sale of other real estate by proceedings under the statute. In re Juch's Estate (In re Gantert), supra, this court held that, where the power of sale is unlimited and unrestricted to any particular purpose, and is broad enough to include a power for the payment of debts, and there being a valid power of sale for that purpose, the proceeding cannot be maintained. In that case, decided by the court of appeals, November 29, 1892, 48 St. Rep., 889, it was said: “A power of sale to pay debts sufficient to defeat the creditor’s application under the statute must be one the exercise of which is imperative and not simply discretionary. A creditor cannot be deprived of his statutory remedy unless the debtor has, by his testamentary act, provided him with one that is equally prompt and effective in its operation.” And again: “ It is conceded that he is entitled to the relief sought, unless the testator’s real property is, by the terms of the will, subject to a valid power. of sale for the payment of debts.”

As we have seen, the testator, in his will here, makes no mention of or provision for his debts whatever, and as to his real estate, his intention was that it should be kept by his executors during the lifetime of his wife, she to reside in a portion of it, and that the income should be used to pay for the support of his family, and, upon the death of his wife, that the real estate and personal property should go to his children, the personal property as personal property, and the real estate as real estate. The power of sale is expressly discretionary, and the creditors could not, for their benefit, insist upon its exercise.

In Re Juch the decedent, in his will, directed his executors to pay his debts and funeral expenses, whereas in this case we find no reference whatever to debts. And if importance is to be attached to such a provision in a will, we do not see why the absence of such a provision should not be equally as significant. In that case it is said : “ We cannot regard the direction to the executors and trustees to pay all just debts as an idle and meaningless formula. The testator well knew that his will, in this respect, could not be obeyed without a sale of some part of his real estate, and it is to be presumed that he intended to clothe them with a power commensurate with the duties imposed upon them. The real and personal property is blended in one gift to the executors for a common trust, in which all the beneficiaries share equally. The exercise of a general and unlimited power of sale is imperative, and may be compelled in favor of any party who is lawfully entitled, under the provisions of the will, to the proceeds of the real property when sold. A creditor whose debt is directed to be paid by the will belongs to this class. As to him, it becomes a power in trust, and the court decides that the petitioner, a creditor, as a beneficiary of the power, can compel its execution, and, therefore, that he has no right to the summary remedy of the Code.”

Applying this reasoning to the right of the petitioners here, we think the error into which the learned surrogate has fallen is in formulating the question for determination, and in not noting the distinction between a discretionary and an imperative power of sale. He made the right of a creditor to a sale of the real estate under the statute to depend upon the question whether the power of sale in the will could be exercised for the payment of debts. We think the more correct expression to be that the question for determination was whether there is a power of sale in the will which must be exercised for the payment of debts; and that, therefore, though a power of sale may be general and unrestricted, which, if exercised, might render the proceeds of real estate, if an intention to that effect could be reasonably inferred from the will, subject to be applied to the payment of debts, such a discretionary power of sale, unexercised, and in the absence of any provision in the will for the payment of debts, or an expression of intention from which it could be inferred that the real estate must be sold for the payment thereof, is not sufficient to prevent creditors from enforcing payment of their debt by compelling a sale of the real estate, where all the jurisdictional facts are shown, and all the proceedings have been regular and in accordance with the Code, as was concededly the position of the petitioners here.

We think that this view is sustained bv the Code, which makes provision for such an application except "in cases where the decedent has provided a way of payment by charging the debt on the real property, or by giving his executors a power of sale for the payment of debts that can be enforced. This is but saying that a disposition of real estate in the summary manner provided by the Code must be granted, unless the creditor is provided with another method of enforcing payment

Having reached the conclusion that the power of sale under this will was not one for the benefit of creditors of the estate, or one which they could have enforced, it was a proper case for the application to the surrogate, which could only be denied upon a showing that the executors had sold the real estate, and were in funds sufficient to pay the debt. We are of opinion, therefore, that the order of the surrogate should be reversed, with costs, with leave to the executors to answer over, with a view of showing whether the proceeds from the one piece of property sold would leave sufficient assets in their hands out of which the debt could be paid, in which event the application should be denied, otherwise granted.

Van Brunt, P. J.

While agreeing in the result of the within opinion, I do not concur in much that is contained therein. The learned surrogate says: “It is only necessary to consider one question, viz, whether there is a power of sale in the will which could be exercised for the payment of debts.” It seems to me that that is not the question, but it is : Has this real estate been devised expressly charged with the payment of debts, not charged by implication or by operation of law, but expressly charged ? Such is the provision of § 2749 of the Code. Unless it has been so expressly charged, this section gives the creditor the right to maintain this proceeding. In the case at bar the will contains no reference to debts, no direction to pay ; hence, although there may be legal obligation upon the part of the executors to pay, there is no charge of payment expressed in the will; hence, the lands are not expressly charged with the payment of anything. In Re Juch, referred to, the will expressly charged the executors with payment of debts, and it was held that all the assets of the estate, there being a power of sale, were charged with their payment, a very different case from the one at bar.

Barrett, J.

I concur upon the ground that the real estate was not charged by the testator with the payment of^ debts, and that the power of sale was discretionary, and not imperative.


text:
    The Kokomo Straw Board Co., Resp’t, v. Horace Inman et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1893.)

    Execution — Amendment—Mistake.
    The court has power under § 723 of the Code to amend an execution by including interest inadvertently omitted, even after it has been collected and returned.

      Appeal from order amending an execution.
    A clerk of plaintiff’s attorney by mistake failed to include accrued interest in an execution. After the collection and return of the execution, an order was procured for the amendment of the execution by including such interest, and its return to the sheriff.

      Smith & White, for app’lts; William Ford Upson, for resp’t.
   Per Curiam.

The case of Hatch v. Bank, 78 N. Y., 487, shows that under § 723 of the Code the court had ample power to grant the relief contained in the order appealed from.

The order should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., O’Brien and Follett, JJ., concur.


author: Lawrence, J. Van Brunt, P. J.

text:
    Meter Jonassen, App’lt, v. Edward E. Eames et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1893.)

    1. Nonsuit.
    If the proof of a fact is so predominating that a verdict against it would be set aside by the court as contrary to the evidence, then it is the duty of the court to grant a nonsuit.
    2. Fraud — Bona fide purchaser.
    A purchaser for a valuable consideration of personal property is not chargeable with constructive notice that the conveyance to him was made by his vendor with intent to defraud his creditors, it is necessary to show actual knowledge, belief or suspicion in order to affect his title.
    3. Same — Chattel mortgage.
    The fact that the evidence adduced by plaintiff respecting the bonafides of certain chattel mortgages came from the examination of the defendants and those in their employ, does not require the court to submit that question to the jury.
    Appeal from a judgment entered upon a dismissal of the complaint at circuit.
    The action is in replevin, brought by the plaintiff to recover ■cloaks alleged in the complaint to be of the value of $4,700.
    The complaint sets forth that the plaintiff is the owner and entitled to the immediate possession of certain property described in a schedule annexed thereto, and that the defendants wrongfully took and wrongfully became possessed of the saíne and refused to return the same on demand.
    There are three sets of defendants, who have appeared herein by separate attorneys; one set being the members of the firm of H. B. Olaflin & Company, another the members of the firm of |Blumenthal Brothers & Company, and the third Nora Boynton, individually.
    The schedule attached to the complaint, under the general designation of cloaks, describes only by dates and numbers the property claimed.
    All of the defendants answered. The defendants Blumenthal Brothers & Company, after raising the general issue, alleged that the property referred to in the complaint had been sold and delivered by the plaintiff to the defendant Nora Boynton, who became the owner thereof, and who thereafter disposed of some portion thereof in the regular course of trade; and that, prior to the commencement of the action, she executed and delivered to the defendants, Blumenthal Brothers & Company, a chattel mortgage covering such property, given by her to secure the payment of certain moneys which were at that time loaned to her by said Blumenthal Brothers & Company, together with a precedent indebtedness for merchandise sold by them to her, amounting, altogether, to the sum of $15,000, for which sum, at the same time, said Nora Boynton gave to said defendants her promissory note, payable on demand ; that thereafter, and before the commencement of this action, demand having been made upon the said defendant Nora Boynton for payment of the amount of said note, and the same having been refused, these defendants, Blumenthal Brothers & Company, entered into possession of the property covered by the mortgage; that the mortgage had been duly filed in the office of the Begister of the city and county of New York.
    The defendants composing the firm of H. B. Claflin & Company also pleaded a chattel mortgage made and delivered to them by the defendant Nora Boynton, to secure the payment of a promissory note for $35,000, payable sixty days after date, given for money loaned at the date thereof, added to a prior indebtedness.
    At the time of the commencement of the action the plaintiff issued to the sheriff of the city and county of New York a requisition to replevin the property claimed by him, which was described in a schedule attached to his affidavit by dates and numbers, exactly as in the schedule attached to the complaint, and covering exactly the same goods.
    Under this requisition the sheriff seized a large quantity of goods, which the defendants retained in their possession by giving a bond, as required by the statute. Thereafter the sheriff filed his return, wherein he certified that on the 20th of December, 1889, he took from the possession of the defendants, Albert Blumenthal, Grustave Blumenthal and Grustave Bothenberg (Blumenthal Brothers & Company), “ a quantity of ladies’ garments claimed by plaintiff to be the property described ” in the affidavit of replevin ; and further certified that the defendants had counter-bonded the property.
    The plaintiff sought to prove his title to the goods in question by showing that they had been purchased from him by the defendant, Nora Boynton, by fraud, consisting of alleged false representations respecting her credit made to a Mr. Bothschild, in plaintiff’s employ, and that, therefore, the title had not passed from him to her. He then proceeded in his own behalf to show the circumstances under which the defendants, Claflin & Company, and Blumenthal Brothers & Company obtained their respective mortgages, and called as witnesses for that purpose Mr. Albert Blumenthal, of Blumenthal Brothers & Company, Mr. Jordan, of Claflin & Co., and Mr. Boynton, as well as various other persons.
    After the plaintiff had rested his case, defendants, Claflin & Company, and Blumenthal Brothers & Company, through their respective counsel, moved to dismiss the complaint on the grounds set forth in the case, which, brief! j' summarized, were : That sufficient identification was not made of the goods set forth in the complaint and affidavit of replevin with those claimed to have been found in the defendants’ possession and replevined by the sheriff, nor of the value thereof, which would enable the jury to formulate a verdict; that plaintiff had failed to prove fraud on the part of the defendant, Nora Boynton, in the purchase of the goods in question, which permitted him to rescind the sale; and that there was an entire failure of proof of any fraud, or participation in fraud, on the part of Blumenthal Brothers & Company and H. B. Claflin & Company, or notice to them of any fraud committed by Nora Boynton, and that the evidence conclusively showed that they were mortgagees of the property in question in good faith, for a valuable consideration, and without notice of any defects in their mortgagor’s title.
    The complaint was thereupon dismissed upon all the grounds set forth in the respective motions, and specifically upon the failure of the plaintiff to identify the goods, and that it affirmatively appeared without dispute that the defendants, Blumenthal Brothers & Company and H. B. Claflin & Company, were bona fide mortgagees of the property for a valuable consideration, without notice of any defects in their mortgagor’s title, and upon a further ground in so far as the Claflins were concerned.
    The plaintiff’s attorney duly excepted to the granting of the motion for a nonsuit and requested to go to the jury upon the issue of fraud involved in the case, also upon the bona fides and circumstances surrounding the giving of these mortgages, as disclosed by the evidence, and also upon every other question of fact and issue of fact in the case.
    This motion was denied, and the plaintiff’s counsel duly excepted thereto.
    A.Blumenstiel, for app’lt; S.F.Kneeland, for respt’s H. B. Claflin & Co.; Stern & Rushmore, for respondents, Blumenthal Bros. & Co.
   Lawrence, J.

I am in favor of affirming the judgment dismissing the complaint. Even if it be conceded, as is contended for by the appellant’s counsel, that the defendants were estopped from alleging that the chattels referred to in the complaint were not in their possession, and that they were not sufficiently identified upon the trial, for the reason that they had given an undertaking under the provisions of the Code to rebond the property, Martin v. Gilbert, 119 N. Y., 298; 29 St. Rep., 440, it seems to me that the bona fides of the mortgages executed by Boynton to Claflin & Company and Blumenthal Bros. & Co. were so thoroughly established by the preponderance of proof that the learned justice before whom the cause was tried would not have been justified in submitting that question to the jury. The authorities establish that if the evidence in cases of this nature would be insufficient to sustain a verdict for the plaintiff, the court is justified in taking the case from the jury even though the issue is one of fraud.

In Dwight v. The Germania Life Insurance Company, 103 N. Y., 341, 358; 3 St. Rep., 115, the court say: “It is claimed by the plaintiffs that if there is a scintilla of evidence in support of a proposition, or if the evidence against it does not .amount to a demonstration, that a question is raised which must be left to the jury. We do not so understand the rule. If the proof of a fact is so preponderating that a verdict against it would be set aside by the court as contrary to the evidence, then it is the duty of the court to direct a verdict” It was said in Baulec v. N. Y. & Harlem R. R. Co., 59 N. Y., 356, 366, by Judge Allen, that “It is not enough to authorize the submission of a question as one of fact to the jury that there is ' some evidence.’ A scintilla of evidence, or a mere surmise that there may have been negligence on the part of the defendants, would not justify the judge in leaving the case to the jury;” quoting from Williams, J., in Toomey v. Railway Co., 3 C. B., N. S., 146; see Culhane v. N. Y. Cen., etc., R. R. Co., 60 N. Y., 133, 136; McKeever v. N. Y. Cen., etc., R. R. Co., 88 id., 667. In Hyatt v. Johnston, 91 Penn. St., 200, Justice Sharrett says: “Since the scintilla doctrine has been exploded, both in England and in this country, the preliminary question of law for the courts is, not whether there is literally no evidence, or a mere scintilla, but whether there is any that ought reasonably to satisfy the jury that the fact sought to be proved is established.” Citing Ryder v. Wombwell, L. R., 4 Exch., 39. The rule held by the supreme court of the United States is expressed by Mr. Justice Clifford in Improvement Co. v. Munson, 14 Wall., 442, as follows: “Nor are judges any longer required to submit a question to a jury merely because some evidence has been introduced by the party having the burden of proof, unless the evidence be of such a character that it would warrant the jury in finding a verdict in favor of that party. Formerly it was held that if there was what was called a scintilla of evidence in support of a case, the judge was bound to leave it to the jury ; but recent decisions of high authority have established a more reasonable rule, that in every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof rests.” To the same effect are Pleasants v. Fant, 22 Wall., 120; Commissioners, etc., v. Clark, 94 U. S., 284; Griggs v. Houston, 104 id., 553; Bagley v. Cleveland Rolling Mill, 21 Fed Rep., 159; Wittkowsky v. Wasson, 71 N. C., 451. See also, Morris v. Talcott, 96 N. Y., 100-104; Macullar v. McKinley, 99 id., 853-357; Bulger v. Rosa, 119 id., 459-463; 29 St. Rep., 678; Powers v. N. Y. C. & H. R. R. R. Co., 60 Hun, 19-23; 38 St. Rep., 558.

_The fact that the evidence adduced by the plaintiff respecting the bona fides of the mortgages came from the examination of the defendants, and those in their employ, did not require the justice to submit that question to the jury. The evidence was uncontradicted that the mortgages had been given, not only for past indebtedness, which would not have been sufficient to have constituted the defendants bona fide purchasers of Boynton, but that they were given for additional loans made without any knowledge on the part of the defendants, Claflin & Company and Blumenthal Brothers & Company, that there had been any fraud committed by Boynton in the purchase of the goods from the plaintiff.

In the case of Lomer v. Meeker, 25 N. Y., 361, it was held that the fact that the jury may choose to discredit evidence not impeached and not incredible on its face, is no reason for submitting it to them. In that case the court said: It is a mistake to suppose that because the evidence came from the defendant after the plaintiff had rested, the case must go to the jury. In Pratt v. Hull, 13 Johns., 334, it was held to be the duty of the court to nonsuit when the evidence offered by the plaintiff did not support his action, and that it was error to refuse the nonsuit, for which a bill of exceptions would lie. In 19 Johns., 159, Judge Spencer says: ‘ If the court can rightfully nonsuit the plaintiff upon undisputed facts, when the law is against him, they ought to do so ; and the refusal to dojt is error in point of law.’ * * * The judge in this case should, therefore, have nonsuited plaintiff or dismissed the complaint, which is equivalent to a nonsuit The argument is that this could not properly be done, because there was a question of credibility raised in respect to the witness Bock, who proved the usury. But this objection is untenable. The witness was not impeached or contradicted. His testimony is positive and direct and not incredible upon its face. It was the duty of the court and jury to give credit to his testimony. The positive testimony of an unimpeached, uncontradicted witness cannot be disregarded by the court or jury arbitrarily or capriciously. They are bound to believe, for judicial purposes, such testimony.” See also Kelly v. Burroughs, 102 N.Y., 93; 1 St. Rep., 161.

That the defendants made the loans in question in good faith cannot, I think, be disputed upon the testimony in this case. Nora Boynton had been placed in possession of the property, with all the indicia of ownership, and the fact that the defendants made their loans upon the faith of such possession, and without any notice of any fraud upon her part in purchasing the goods from the plaintiff and acquiring possession thereof, is overwhelmingly established by the proofs. See Simpson v. Del Hoyo, 94 N. Y., 189; Valentine v. Lunt, 115 id., 496; 26 St. Rep., 254. The evidence in the case does not show that the defendants had constructive notice of the intention of Nora Boynton, if such an intention existed, to defraud the plaintiff in purchasing the goods in question. See Parker v. Conner, 93 N. Y., 118; Stearns v. Gage, 79 id., 102.

In Stearns v. Gage, it was held that a purchaser for a valuable consideration is not chargeable with constructive notice that the conveyance to him was made by his vendor with intent to defraud creditors, and that actual notice is required to impair or affect his title.

In Parker v. Conner, it was held that, in order to render a sale for a valuable consideration of personal property delivered at the time of the sale and taken into actual possession of the vendee invalid as against the creditors of the vendor, it is necessary to show that the vendee had actual knowledge or belief, or at least actual suspicion, that the sale was being made with intent on the part of the vendor to defraud his creditors. It was further held that no duty of active diligence is cast upon the purchaser, in favor of the creditor, requiring him to suspect and investigate the motives of the vendor, and that while, if he knows or believes them to be fraudulent, he makes himself by the purchase a party to the fraud, fraud may not be imputed to him by the application of strict rules of constructive notice, and actual good faith will protect him.

In this case, as already observed, I am of the opinion, upon the evidence, not only that the mortgages in question were given partially to secure bona fide loans made to Boynton by the defendants, but also that no facts or circumstances were brought home to the knowledge of the defendants which should have induced them to suspect that their mortgagor had fraudulently acquired title to the property upon which the mortgages were given. Being of the opinion, therefore, that there was no evidence requiring the justice at circuit to submit the question of the bona fides of the mortgages to the consideration of the jury, without considering many other questions which are discussed in the points of counsel, I am of the opinion that the judgment below should be affirmed, with costs and disbursements.

Van Brunt, P. J.

The plaintiffs were bound to impeach the right to possession of Blumenthal and Claflin. They assumed this burden and failed. The judgment must be affirmed, with costs.

O’Brien, J.,


text:
    Gustav Daniel, Resp’t, v. The New York News Publishing Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1893)

      1. Libel — Words actionable per se.
    A notice was published in a newspaper that “ D. is reported as soliciting advertisements for this paper. He has no account and no authority to represent the News. Any such statement on his part is fraudulent, deceptive, and for dishonest and malicious purposes.” In an action for libel brought by D. against the owners of the paper,Held, that the last sentence-of such notice was libelous per se.

    3. Same — Charqe.
    In such case, the court properly refused to charge that if the jury find from the evidence that defendant was informed that plaintiff was soliciting advertisements, and had no authority so to do, and that defendant believed such information, and published the notice simply to protect, its own interest and with no malicious motives, they should find for defendant, and properly charged that such facts might be taken into consideration in determining the amount of damages.
    3. Evidence — Improper, admitted without objection, not available on APPEAL.
    Testimony allowed to get into a_ca.se without objection should not he availed of for the purpose of reversing the judgment.

      Appeal from, judgment entered on verdict in favor of plaintiff, and from order denying motion for new trial.

      James M. Smith, for app’lt; Charles Strauss and Julius Lehmann, for resp’t.
   O’Brien, J.

The action was brought to recover damages for libel. On the 12th day of March, 1889, the plaintiff was an advertising agent. On that date the defendant published in the New York Daily News the following notice:

“ Gustav Daniel is reported as soliciting advertisements for this paper. He has no account and no authority to represent the News. Any such statement on his part is fraudulent, deceptive, and for dishonest and malicious purposes.”

Upon seeing such notice the plaintiff called on the business manager of the defendant, complained thereof, insisted it was false, and requested that it should be discontinued. But, notwithstanding such request on the part of the plaintiff, it was repeated in the next day’s issue of the paper.

In addition to setting forth the publications as above, the plaintiff alleged in his first cause of action, that the said matter and statements were published “ with the wrongful intent of injuring this plaintiff in the community and in his business.” In his second cause of action, after setting forth the other necessary averments, he alleged injury to his business resulting from such publication, stating that “ the plaintiff has lost, among others, by reason thereof, the business and patronage of two persons named, besides the business of many others.”

The defendant, while admitting the publication, denied that i't was done maliciously or with wrongful intent It then set up, that previous to the publication the plaintiff had solicited advertisements for the defendant’s paper, and had collected money from different persons for advertisements procured by him, with the knowledge and approval of the defendant, but that certain of the moneys so collected he did not pay over to the defendant. In addition, the defendant charged, as a justification, that just previous to such publication moneys were so collected and not returned, and that plaintiff had tried to induce different persons who were patrons of the paper to give their advertisements to other papers, at the same time holding out inducements to them that he could procure them advertisements in defendant’s paper at a much less rate than they were paying defendant for the same.

The first thing to be noticed is the character of the defamatory matter complained of. It was urged upon the trial that, relating as it did to the defendant’s business, and proof being offered to show that the statement therein that the plaintiff “ had no account and no authority to represent the News ” was true, that it came under the head of a privileged communication. We think it could not be so considered. It was not claimed to have been in any wav communicated to the defendant and then published, but it purports to be a notice emanating from the defendant itself. Had it stopped with the words last quoted, we do not see that the plaintiff, upon the proof offered here, would have had any reasonable ground of complaint. The portion, however, of the notice which had a direct tendency to injure the plaintiff in his business, and which was undoubtedly libelous per se, was that charging that the plaintiff in soliciting advertisements for the defendant’s paper was making a statement which on his part, to quote the words of the notice, was “ fraudulent, deceptive, and for dishonest and malicious purposes.”

Assuming, however, the words to be libelous, the appellant contends that justification therefor was proven, in that evidence was offered to show the truth of the statements in the publication. The most that can be said in reference to that is, that there was conflicting evidence in regard to the relations which for many years has existed between the plaintiff and the defendant, and which resulted, as far back as 1879, in the plaintiff having adjusted and settled moneys which he owed to the defendant for advertisements inserted in the paper, by giving a promissory note therefor. It can hardly be claimed that this justified the publication made so long afterwards. The remaining evidence tended to show that information was given to the defendant that some one, claiming to be an advertising agent, was offering to accept advertisements upon representation that they would be inserted in defendant’s paper at a rate less than the defendant charged for such advertisements. For the purpose of connecting the plaintiff with the complaints by customers as to the representations so made, a Dr. Whitehead was produced, who testified as to interviews with the plaintiff, in which the plaintiff was stated to have made the offer to receive from the doctor advertisements at a less rate than he could obtain by personal application to defendant This testimony was denied by plaintiff ; and however seriously the contradictions in plaintiff’s own version as to what the interviews were between himself and the doctor may have affected his credibility, these were more than offset by the proof presented to show that the doctor himself bad been convicted of a crime, and thus his credibility likewise affected. The averment of complaints having been made to the defendant was undoubtedly sustained, but how far the plaintiff was connected therewith was a question which, upon such testimony, was fairly presented in the impartial charge of the trial judge to the jury.

We cannot, therefore, upon the whole testimony, say that there was such a preponderance in favor of the defendant as would have justified the court in not submitting _ the entire case as to plaintiff’s right to recover damages for the alleged publication, oj? warranted a setting aside of the verdict for the amount awarded by the jury.

Many questions are presented by exceptions taken to the admission and exclusion of evidence, and three to certain requests to charge the jury made by the defendant. Of the latter, two were good abstract propositions of law, which were concurred in by the trial judge, with the statement, however, which was justified under the evidence, that they had no bearing upon the facts of the present case.

The fourth request was one in which the defendant asked the court to charge :

“ If the j ury find from the evidence that, previous to the publication complained of, the defendant was informed that the plaintiff was reporting himself as being connected with defendant, and authorized to solicit advertisements for said newspaper, and that said plaintiff had no authority to represent said defendant, and also that said defendant believed and had reason to believe such information to be true, and that such publications were made to protect its own interests, or to caution the public against imposition, and that the defendant had no malicious motive in the publication, their verdict should be for the defendant.”

In answer thereto the court, no doubt having in mind the rule of law that good motives and an honest belief in the truth of a publication are not a legal excuse for the defamatory matter, we think correctly said:

“ I do not charge you that your verdict should be for the defendant, but I charge you that all those circumstances and all those facts, if found by you to be true, may be taken into consideration in determining the amount of damages .which the plaintiff should receive.”

This leaves exceptions to rulings upon evidence, which will be referred to in the order in which they are presented by the record.

Plaintiff was asked to state what proportion of his business fell off immediately after the publication of the paper. This question was objected to upon the ground “ that the pleadings do not authorize the introduction of the testimony, and that, therefore, it is incompetent under the issues in this case.” This objection was untenable, as we have already shown, by the quotation made from the complaint, that damages to the business of the plaintiff were specially alleged therein. The court correctly, therefore, under the authority of Bergmann v. Jones, 94 N. Y., 51, allowed the testimony.

Of the two persons named in the complaint as having ceased to do business with the plaintiff on account of the publication, it was shown that one had since that time died, and the other was produced as a witness upon the trial.

Over the defendant’s objection, the plaintiff, to show the connection between the publication and the loss of their custom, was allowed to testify to what these persons told him with respect to their reasons for discontinuing doing business with him. This evidence was clearly hearsay and incompetent; and the question, therefore, is whether the objections thereto were taken in such a way that they were available, or whether the injury thus resulting to the defendant was sufficient to justify a reversal of the judgment.

As to the witness produced upon the trial, the opportunity thus afforded of establishing the same fact as was testified to by the plaintiff, that the discontinuing of his dealings with thé plaintiff was due to the article named, repaired what might otherwise have been the injurious effects of allowing such hearsay evidence as to this witness.

With regard to the one who had died, the record is as follows : “ Q. Did Boese tell you why he discontinued doing business with you ? A. Yes, sir; he did. Objected to ; objection overruled, and defendant excepts.”

It will be noticed that this question only called for a statement as to whether he had given him the reasons for discontinuing business ; and it will be further noticed that the objection was not made until the answer was given. When the witness, however, was asked the question following upon this introductory one, as to what he did say, no objection was made thereto. We do not think, therefore, that the question is presented by a proper exception, The testimony having been allowed to get in the case without objection, it should not now be availed of for the purpose of reversing the judgment.

We have examined the other exceptions taken to the rulings, but none of them is %‘s important as the ones just considered, most of them being trivial in their nature and not worthy of serious consideration. Upon the whole case, we think it was fairly tried, both parties having the advantage of an impartial charge which presented the questions at issue between them to a jury, and that the judgment should be affirmed, with costs.

Follett and Barrett, JJ., concur.