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    ELIZABETH M. COOK, an Infant, etc., Respondent and Appellant, v. ALEXANDER M. LOWRY, Appellant and Respondent, Impleaded with Others.

      Invalid direction for accumulations — the same rule applies to undisposed of income of personal as to that of real property — R. 8., part 2, chap. 1, tit. 2, art. 1, sec. 40, and chap. 4, tit. 4, see. 2 — Accounting by a trnstee— allowances of payments claimed to have been made by him — when he will be cha/rged with interest at seven per cent with annual rests — how his commissions are to be computed.

    Section 40 of article 1 of title 2 of chapter 1 of part 2 of the .Revised Statutes (1 R. S., 726), providing that where there shall he a suspense of the power of alienation or of ownership, during the continuance of which the Vents and profits shall be undisposed of, and no valid direction for their accumulation shall be given, they shall belong to the persons presumptively entitled to the next eventual estate, is, by virtue of section 2 of title 4 of chapter 4 of part 2 of the Revised Statutes (2 R. S., 773), made applicable to cases in which an unlawful accumulation of the interest and income of personal property has been directed.
    A testator died in 1852, leaving an estate consisting of both real and personal property. After giving several minor legacies he gave an annuity of $100 to Therina Hall, and the interest of $2,000 a year to Lydia Hall. He then gave one-fourth part of all the rest and residue of his estate to each of his three sons. He directed that the remaining fourth part and the income thereof should be invested by his executors during the natural life of his only daughter Georgiana, except that the income of $25,000 thereof should be paid to her semi-annually; and in case of her death without issue the said fourth part Was given to. the testator’s said sons in equal shares, but if she died leaving lawful issue then said fourth was given to spch issue. Georgiana, who was about fourteen years old when her father died, married in 1855. On March 25, 1857, the plaintiff, who is the sole issue of the said marriage, was born.

      Held, that the direction for the accumulations of the income of so much of the fourth part as exceeded $25,000 was invalid, and that the plaintiff from the time of her birth was entitled to, receive the same.
    ' That upon the daath of Therina Hall one-fourth of the capital sum, to the income of which she was entitled during her life, fell into the trust fund.
    In 1865 the executors, one of whom was one of the sons of the testator, commenced proceedings before the surrogate, and on March 23, 1866, a final settlement of their accounts was made by him. During the pendency of the , proceedings one of the sons, Augustus, executed an instrument acknowledging the receipt in full from the executors of his share of the estate, and assigning to his brother William, the executor, any sum that might áppéar to belong to him on the settlement. On the day of the final settlement William executed a like receipt and assignment to his brother, the defendant, Alexander. It appeared that William had received soon after his father’s death $50,000, Augustus some three years later $59,845.42 and Alexander on the settlement of the surrogate $77,115.77; $48,138.83 was also transferred to the defendant Alexander as the trust fund to'be held for the daughter. Alexander was appointed her trustee, and had been appointed guardian for the plaintiff (the granddaughter) in her proceedings before the surrogate.

      Held, that as it appeared that the estate of the testator was at the time of his death of the value of about $200,000, one-fourth of which would be $50,000, the fact that Alexander received upon the settlement the sum of $77,115.77 as his distributive one-fourth share, established conclusively, as against him, that one-fourth of the net accumulations from the death of the testator to the time of the settlement was at least equal to what he received in excess of $50,000.
    That as it was to be presumed that the accumulations as well as the original capital was divided proportionately between the distributees, the same proportion of the trust estate was to be considered as consisting of accumulations as existed in the case of his legacy.
    That as the accumulations upon his share amounted to $27,115.77, the accumulations upon the trust estate was to be estimated in a a like proportion'on the fund of $23,138.33, that being the difference between $48,138.83, the entire trust fund, and the $25,000 thereof of which the mother Georgiana was to have the income.
    That as this sum had been accumulating during the. fourteen years that had elapsed from the death of the testator to the time of the settlement, and as the plaintiff was not born until five years after the death of the testator, she 'was entitled to receive only nine-fourteenths of the said accumulations.
    Upon the accounting of the defendant)™ these proceedings it appeared that he had habitually disregarded his duty. He kept no separate trust fund, but mingled the trust property with and used it as his own. He entirely ignored the rights of the plaintiff, had never paid her a dollar and had kept no account with her. The greater part of the account rendered by him consisted of items which he selected from the account which he kept of the payments made to her mother on account of her annuity. In many instances he could not state with any degree of exactness or certainty what he had received or expended on the plaintiff’s account.

      Held, that all charges not supported by vouchers or other satisfactory evidence should be disallowed.
    That such of the items selected from the accounts rendered to the mother as were so supported, apd as were not shown by opposing evidence to be incorrect, should be allowed.
    That he was properly charged with interest at the rate of seven per cent per annum, to be computed with annual rests.
    That as it did not appear that there was any income in his hands at the time of making the various advances, he should be allowed interest on his disbursements in stating the account at the end of each year.
    That as an accounting upon the basis above indicated would make the plaintiff, good, so far as her rights were made to appear, the defendant was entitled to his commissions.
    That such commissions should be deducted at each annual rest.

      Cross-appeals from a final judgment, entered on a decision of the court rendered upon a trial at the Chautauqua Special Term.

      Smith <& Fisher and R. P. Ma/roin, for the plaintiff.

      Abner Hazéltine and W. F. Cogswell, for the defendant.
   Smith, P. J.:

This action was brought to obtain a construction of the will of Nathaniel A. Lowry, deceased, and to compel the defendant, as trustee, to account for certain accumulations under the provisions of said will that had come into his hands. The testator died 20th February, 1852, leaving an estate, real and personal, of the value of about $200,000. He gave by the first seven paragraphs of his will several minor legacies, among which were an annuity of $100 to Therina Hall, and the annual interest of $2,000 to, Lydia Hall. By the eighth paragraph he gave one-fourth of the residue of his estate to each of his sons William H., Augustus N. and Alexander M., the defendant. By the ninth paragraph he directed that the remaining fourth and the income thereof should be invested by his executors during the natural life of his only daughter, Georgiana Elizabeth, except that the income of $25,000 thereof should be paid to her semi-annually, and in case of her death without issue, the said fourth was given to the testator’s said sons in equal shares, but if she died, leaving lawful issue, then said fourth was given to such issue. At the time of her father’s death the said Georgiana was about fourteen years old. In 1855 she intermarried with Thomas Cook, and on the 25th March, 1857, the plaintiff was born of that marriage, and she is the sole issue of the said Georgiana. The will named as executors, Richard P. Marvin, Madison Bunnell, Augustus F. Allen and William H. Lowry, one of the testator’s sons. Judge Marvin renounced, and the other executors took but letters. At the time of the death of the testator, all of his children except William H. were minors. The defendant, Alexander M. became of age about the 1st of July, 1865. Shortly thereafter, the executors commenced proceedings before the surrogate of Chautauqua county, for a final settlement of their accounts; and a final decree, or rather a final statement of accounts was made therein by the surrogate on 23d March, 1866. Pending those proceedings Augustus executed an instrument acknowledging full receipt from the executors of his share of the estate, and assigning to William any sum that might appear to belong to him on the settlement. On the day when the final statement was made William executed a like instrument, acknowledging full receipt from the executors of his share and assigning to Alexander all the interest assigned to him by Augustus, and also all 1ns own residuary interest in the estate (if any) by reason of the death of any legatee or otherwise. The final statement made by the surrogate recited that William had received $50,000, Augustus $59,845.42 and Alexander, $77,115.77 in full of their respective shares in the estate, and that there remained in the hands of William, who had been the acting executor, the sum of $51,567.33, of which, after investing sufficient to raise the annuities bequeathed to Therina and Lydia Hall, there remained $48,258.83 which, as the.decree states, “by the terms and conditions of the said will is invested for the benefit of the said Georgiana and her heirs.” Thereupojj, the executors were declared to be discharged. On 22d May, 1866, by an order of this court, Alexander M. Lowry was appointed trustee of said fund, on his filing a bond as required by the order, which he did on the third of December, following. Therina Hall died August 23, 1873. Lydia Hall is still living. This action was commemced in the spring of 1875, and in May of that year a trial of - the action was had at Special Term, and the court found the facts above stated, and also that the said sum of $48,158.83, mentioned in the surrogate’s decree, was made up entirely of moneys arising from the estate of said testator, and that no part of it consisted of accumulations; that William received his share of the estate soon after his father’s death, and Augustus received his share about three year’s after that event. The court also found, as matter of law, that the trust created by the ninth clause of the will is valid; that the direction to accumulate tire fund mentioned in that clause, that is to say, so much of said fund as exceeds the sum of $25,000, .the income of which latter sum is directed to be paid to Georgiana, is void ; that such accumulation belongs to the plaintiff as the person presumptively entitled to the next eventual estate, and her right to it commenced at her birth. And that one fourth of the principal sum invested to raise the annuity of $100 for Therina Hall belongs to the fund created by the ninth clarrse of the will, and the other three-fourths belong to the defendant Alexander, in his own right and as the assignee of his brotlzez’s; and the court sent the case to a referee to take arid report an account of said fund and its accumulations. An interlocutory judgment was enteimd to that effect. . The referee took an account and in July, 1879, he made his report. Each party excepted to the report, and in November of that year the cause came on to be heard at Special Term on the referee’s report and the exceptions, and a final judgment was entered from which each party has appealed. The appeals bring up for review the interlocutory judgment and several intermediate orders, as well as the final judgznent. It is undoubtedly time, as is conceded by the counsel for each party to this appeal, that the trust created by the ninth paragraph of the will is valid, and the direction for the accumulation of the fund set apart by that paragi’aph, beyond the sum of $25,000, is void because not limited to the minority of any person in being at the death of the testator. (1 R. S., 726, § 37; Id., 773 § 3.)

The principal question in the case is as to the devolution of the void accumulations. Do they, or so much of them as have accrued since the birth of the plaintiff, go to her as the person presumptively entitled to the next eventual estate (the gift of the principal, to wit, the one-fourth of the residue of the estate, being to her mother Georgiana, and her lawful issue), or do they go to the heirs of the testator as property in respect to which he died intestate ? The gift, it will be observed, is of one-fourtli of the residue of the testator’s real as well as personal estate, and if the accumulations referred to consist to any extent of the rents and profits of real estate, they belong to the plaintiff by force of the provisions of section 40 of the article of the Revised Statutes entitled “ Of the creation and division of estates.” (1 R. S., 726, § 40.) The case has been argued before us, however, on both sides, as if the accumulations consisted exclusively of the income of personal property, and it may be that the voluminous appeal book before us contains evidence that such is the fact, but our attention has not been directed to it, and we have not discovered it. Nevertheless, we follow the counsel in that respect, and-in dealing with the question under consideration, we assume the fact to be as assuzned by them. It is provided by the first section of the title of the Revised Statutes relating to u Accumulations of personal property, and of expectant estates in such property,” that the absolute ownership of personal property shall not be suspended for more than two lives, etc. (1 R. S., 773, § 1.) The second section then provides that “in all other respects, limitations of future or contingent interests in personal property shall be subject to the rules prescribed in the first chapter of this act, in relation to future estates in lands.” (Id., § 2.) The chapter referred to includes the article respecting the “ creation and division of estates,” above cited, but the contention of the defendant’s counsel is that it does not include the fortieth section of that article.. The question was decided adversely to his contention by the Court of Appeals in Kilpatrick v. Johnson (15 N. Y., 322). That decision was cited approvingly by Comstock, C. J., in Gilman v. Reddington (24 N. Y., 19), and it seems to have been followed m Schettler v. Smith (41 N. Y., 328, opinion of Grover, J., 340, 341), and in Manice v. Manice (43 N. Y., 303, opinion of Rapallo, J., 383, 384, 385). The question was decided the same way by Chancellor Walworth in Haxtun v. Corse (2 Barb., Ch. 506, 518), and by the Supreme Court in the third department, in Robison v. Robison (5 Bans., 165). We should regard these cases as decisive were it not that the (learned counsel for the defendant has contended, in an elaborate argument, that they are balanced, if not outweighed, by other cases which he cites, and that the question is an open one, and, upon a proper construction of the statute, should be decided the other way. The counsel cites Vail v. Vail (4 Paige, 317), Phelps v. Pond (23 N. Y., 69), and Hull v. Hull (24 Id., 647). Yail’s case was'decided in 1834, and appears to be the earliest reported in which the question arose. The question does not appear to have been much discussed by counsel: The chancellor expressed his regret that he was compelled to decide the important principle involved in it with so little aid from counsel (opinion, p. 330), and he evidently reached his conclusion with much doubt as to its correctness. “ I have arrived at the conclusion,” he says, “ from the best lights I have been able to obtain ” (p. 331), but it is to be noted that he does not refer to section 2, above cited. And in the subsequent case of Haxtun v. Corse (supra), decided by him, he does not refer to Vail v. Vail. The counsel for the defendant says the question was not involved in Haxtun’s case, but in that he is in error. It is true there were other questions in that case, but the question now under consideration was also directly involved, and was discussed and passed upon and the case is an authority upon that question as well as upon the other points decided. The view taken by the counsel would strip every case, involving two or niore distinct questions, of all authority as an adjudication upon either question. The case of Haxtun is referred to as an authority upon the point by Denio, C. J., in Kilpatrick v. Johnson (supra, 327), and by Selden, J., in Phelps v. Pond (supra, 83). In Phelps v. Pond, the question was not decided, but Judge Selden remarked, that in the prior cases the question does not appear to have received much consideration, and “ as an original question, it would admit perhaps, of considerable doubt.” In Hull v. Hull (24 N. Y., 647), the point was decided, but it was not discussed. Wright, J., wiio expressed the views of the court, merely said that, as to the void accumulations, “the decedent is to be regarded as having died intestate.” None of the preceding cases are referred to. The judgment of the General Term was affirmed, but whether the question was carefully considered by that court we are not informed. Upon a review of the cases we think the weight of authority favors the conclusion reached by the learned judge at Special Term, but there is such an apparent want of harmony in the reported cases that the defendant’s counsel has very properly argued the question as an open one,, and as such we will consider it.

The first article above referred to relates to estates in lands exclusively and prescribes rules for the limitation of future estates ii> lands; and section 2 of the title above mentioned respecting accumula tions of personal property subjects limitations of future or contingent interests in personal property to the same rules as limitations of future estates in lands. (Per Cowen, J., in Kane v. Gott, 24 Wend., 641; opinion, 662.) Chief Justice Denio, in Graff v. Bonnett (31 N. Y., 9), defined a limitation thus: “ The term used in the law of real estate to denote the act of prescribing by deed or will the commencement, the duration and the termination of such (future) estates, is the Umithng them, and the completed act by which they are thus created is called a limitation; and,” he proceeds to say, “ one or the other of these words is used in that sense in nearly every one of the thirty-five sections included in my quotation ” (referring to sections 7 to 42 inclusive, of said first article). “These,” he says further, “ are the rules which, by section 2 above mentioned, are attached to limitations of future and contingent interests in personal property.” (Opinion p. 18.) Sections 37 to 40 inclusive, relate to accumulations of rents and profits of real estate, but it is a mistake to suppose, as does the counsel for the defendant, that they are foreign to the subject of the limitation of future estates. On the contrary, they all relate to accumulations directed to commence on the creation of a future estate or subsequent thereto, and section 40 relates especially to rents and profits undisposed of, and for the accumulation of which no valid direction is given, during a suspense of alienation caused by a valid limitation of an expectant estate. These several provisions respecting accumulations are applied1 by section 2 to limitations of future interests in personal property, except so far as is otherwise provided in the title of which section 2 is a part.

What has been said seems to answer sufficiently the contention of the counsel for the defendant, that section 40 cannot be characterized as a rule for the limiting of a future estate, and that it is simply a rule concerning the ownership of the rents and profits of real estate. But it may be further remarked, that by section 36 oí the same article dispositions of the rents and profits of lands, to accrue and be received subsequent to the execution of the instrument creating such disposition, are made subject to the rules established in said article in relation to further estates in lands. And, in Kilpatrick v. Johnson (supra), Denio, C. J., speaks of section 40 as a provision “ in regard to estates in land.” (Page 326.)

The learned counsel assumes that the provisions of sections 3,4 and 5 of title 4 are the same in meaning and effect as sections 37, 38 and 39 of article 1, and it is not to be supposed that the revisers thus repeated themselves, and hence it is further to be concluded that if sections 37, 38 and 39 are no.t embraced by section 2, section 40 is not, as the four sections relate to one subject and are inseparable. The fault of the argument is in the premise. Sections 3, 4 and 5 are not identical with sections 37, 38 and 39. The essential difference between them will be seen by referring to the provisions prescribing the periods during which the ownership ■of personal property and the power of alienating real estate may, respectively, be suspended. The ownership of personal property cannot be suspended for a longer period than two lives. (1 R. S., 773, § 1.) The power of alienation of real estate may be suspended for two lives and a minority. (Id., 723, §§ 15, 16.) Turning again to the provisions respecting accumulations it will be seen that if an accumulation of the income of personal property be directed to commence at any period subsequent to the date of the instrument, or subsequent to the death of the person executing such instrument, it must be directed to commence within the time allowed for the suspension of the absolute ownership of personal property (1 R. S., 773, 774, § 3, sub. 2), while an accumulation of the rents of real estate, if directed to commence subsequently to the creation of the estate out of which the rents are to arise, shall commence within the time permitted for the ' vesting of future estates in lands. (Id., 726, § 37, sub. 2.) This distinction is very clearly pointed out by Rapallo, J., in the case of Manice (supra, 382, 383). We are ■ of'the opinion that the decision of the learned judge at Special Term upon this branch of the case should be affirmed.

We also concur with the trial judge in holding that the plaintiff from her birth was entitled to the accumulations of income, and that on the death of Therina Hall, one-fourth of the capital sum, to the income of which she was entitled during her life, fell into the trust fund created by the ninth paragraph of the will.

The remaining questions in the case relate to the accounting. The accounts rendered by the defendant are very unsatisfactory. In his conduct as trustee he habitually disregarded his duty. He kept no separate trust fund. He mingled the trust property with his own and used it for his own profit. In short, he managed the estate as if he owned the whole of it (instead of three-fourths) subject only to the annuities charged upon it by his father’s will. From the beginning of his trust he ignored altogether the rights of the plaintiff as a cestui que trust, until he was called to account, and since the commencement of these proceedings he has not paid her a dollar. lie has never kept an account with the plaintiff. He kept an account of payments made to or for Georgiana, the plaintiff’s mother on account of her annuity, and the only account with the plaintiff which he rendered in these proceedings, was made out by him in great part by selecting certain items included in the account with her mother, and charging the plaintiff with such of them or such proportion of them as he saw fit. In many instances the items so charged were unsupported by vouchers or by any evidence whatever, except the defendant’s recollection or impression. One of the uses to which he devoted the trust funds in common with his own was the buying of real estate mortgages at less than their face. He has rendered no account of the profit thus made. He has not even rendered an interest account. From this statement it is apparent that the attempt to obtain from the defendant an account of his. dealings with the trust fund, was almost literally a groping in the dark and it was rendered ineffectual to a great extent by the fact that the trustee would not or could not in many instances, state-with any degree of exactness or certainty what he had received or expended on the plaintiff’s account. This condition of things is to-be borne in mind in dealing with the questions arising on the accounting.

The plaintiff excepts to the mode of stating the account as directed by the Special Term in a single particular. The trustee is charged with interest at annual rests, the interest beginning to run on 23d March, 1866 (that being the day when the executors were discharged, and the fund having come into the defendant’s hands in the condition it was in on that day). For convenience the first rest is made on the 1st January, 1867! The trustee is credited with the disbursements made by him in the meantime, • amounting to less than the interest charged to him, and he is also credited with interest on each- of the disbursements. To this allowance of interest the plaintiff objects and cites the case of King v. Talbot (40 N. Y., 76). There the advances on which interest was allowed to the trustees were made before they received any income from the trust funds (p. 93), and the rule was there laid down that advances for support without income in hand should bear interest, advances for support with income in hand should not bear interest.. (P. 94.) Although it appears in this case that the income received by the trustee prior to 1st January, 1867, largely exceeded the disbursements made by him prior to that date, there is nothing to show that any part of such income was received by him before the disbursements were made. For this reason the rule laid down in King v. Talbot does not aid the plaintiff, and her third exception to the findings is therefore disallowed.

The plaintiff excepted to the allowance of certain items charged by' the defendant as disbursements made by him on the plaintiff’s account from April, 1866, to May, 1875, during which time she was at school with Dr. Gallup at Clinton, except in vacations. She was between nine and ten years of age when she went away to school. It has been said already that the defendant kept no account with the plaintiff. That was the case even when she was away from her mother and at school. His account now presented against her is made up, as has been said, by selecting items from the account kept with her mother. In that account certain items were designated as furnished to the plaintiff. We think all the items of that description embraced in the exception are properly allowed, except such as are shown by opposing evidence to be incorrect. But items ■charged to the mother in the account, not shown by vouchers or other proof, beyond the surmise of the defendant, to have been for disbursements made on the plaintiff’s account, should not be allowed against her. So, also, items not charged at all in the account with the mother, and not supported by vouchers of other satisfactory evidence, should be disallowed. The defendant’s testimony in regard to particular items evidently consists largely of vague impressions,. and so far as it is unsupported by the account which he kept at the time, or other evidence, it should not be received to charge the plaintiff, especially in view of his adverse interest growing out of the fact that he, in his own right and as the assignee of his brothers, will probably be entitled to what may remain of the trust fund in ■case he survives the plaintiff and her mother. Applying these rules to the items covered by the plaintiff’s second and fourth exceptions to the findings of the court (which are the same in effect as his fifth and sixth exceptions to the report of the referee), the following items allowed by the Special Term should be disallowed, to wit: The items of “Ann Smith, sewing, $9.51; Mrs. Lathrop, sewing, $84.73; cash, August 5, 1868, $50; June 10, 1869, $10; September 2, 1869, $25; July 7, 1871, $20; July 27, 1872, $8; August 5, 1872, $20; August 6, 1872, $12; September 6, 1872, $10, and June 23, 1873, $5,” neither of said items appearing in said account, or, if appearing there, not being designated therein as furnished to or for the plaintiff. Also the items: Comstock, B. & B., dry goods, $67.77; Defendorf & Co., dry goods, $143,” and “ Wild & Keeler, dry goods, $57.67,” each of which appears in the account, but is not designated as purchased for the plaintiff, although other items in near proximity to them in the account are so designated. We have not discovered from the case that vouchers were produced for either of the foregoing items, except the first; and as the voucher given in that instance does not appear in the case there is no evidence that the payment was on the plaintiff’s account.

We have said that we think all the items designated in the account kept with the mother, as furnished to or for the plaintiff, were properly allowed to the defendant, except such as were shown by opposing evidence to be incorrect. The latter remark applies to the items of cash paid to Dr. Gallup so far as they are controverted by Dr. Gallup’s testimony. The difference between the defendant and Dr. Gallup is some $250, and it occurs mostly in the three items next preceding the last item in the account. Without going over the evidence on the subject at large, it suffices to say that an examination of it leads us to the conclusion that Dr. Gallup’s version of the matter is correct. The exceptions last referred to are allowed.

A question of much importance is raised by the plaintiff’s first and fifth exceptions to the findings of the Special Term, to wit, whether any part of the sum of $48,138.83, mentioned in the surrogate’s decretal statement, consisted of accumulations. The importance of the question arises from the fact that the plaintiff was entitled to receive, at the time of the settlement, all accumulations that had accrued since her birth, on the principal sum, the income of which belongs to her. Our attention has not been called to any direct evidence in the case bearing upon the question one way or the other. We have not discovered any proof that an inventory was ever filed, or that there was any showing before the surrogate of the nature of the assets of the estate, except such as were then set apart as the trust fund under the ninth clause- of the will.' Indeed, the proceeding before the surrogate, instead of being an accounting on the part of the executors by items, was a settlement between them and the defendant whereby the executors were released from further liability, the defendant’s two brothers having accepted certain sums of money for their interests, which were thereupon transferred to the defendant, and whatever remained of the estate was turned over to him. Of that remainder, he took to himself the sum of $77,115.77 as his distributive share, and certain assets of the nominal value of $51,567.33, of which $3,139.53 turned out to be worthless, were selected and set apart (by what method or rule of selection does not appear) as a trust fund for the unpaid female beneficiaries, minor and adult, whom the testator had provided for in his will. In that proceeding the defendant appeared as the guardian of the plaintiff.

But there is evidence in the case justifying certain inferences as to the fact of accumulations, and their amount. The estate left by the testator was of the value of $200,000. The complaint alleged, and the court found that one-fourth of it amounted to $50,000 or more. As there is neither allegation, proof or finding that it exceeded that sum, the value of the estate must be assumed to be as above stated. At simple interest the estate would have nearly doubled in fourteen years, if nothing had been paid out. That its gross accumulations were more than fifty per cent of the capital, is shown by the fact that the sums with which the executors were credited in the settlement before the surrogate, including distributive shares, exceeded $306,000. The fact that on the settlement, the defendant received $77,115.77 as his distributive share, after all debts and expenses had been paid, and all legacies had been paid or provided for, seems to be very conclusive evidence, as against him, that one-fourth of the net accumulations was, at least, equal to what he received in excess of $50,000. The sum above stated was received by him as his share as a legatee, as appears by the surrogate’s statement, and his share was one-fourth of the estate. It is true the assignments from his brothers transferred to him any contingent interests in the estate which might thereafter accrue to them, by the death of any legatee or otherwise, but it does not appear that any such interest had accrued to either of them, at the time of the settlement. Each of them had been paid his one-fourth of the estate, William H. having received $50,000 therefor soon after his father’s death, and Augustus N. about $60,000 three years later. The amount paid to the latter, ratified as it was by the defendant in the subsequent settlement, is evidence that at the time of such payment the net accumulations of the estate were, in round numbers, $40,000. How it happened that the one-fourtli of the estate received by the defendant on the settlement so far exceeded that which was set apart for the beneficiaries under the ninth clause of the will, who were also entitled to one-fqurth, does not appear, and perhaps it is not now material to inquire. But as his share and theirs were undivided up to that time, it is to be presumed that the accumulations, as well as the original capital, were divided proportionately at least, if not equally, between them. That much, certainly, was due to the plaintiff, she being then presently entitled to her share of the accumulations accrued since her birth, and as the defendant had assumed the' duty of looking after her interests on that occasion, it is to be presumed that he took care that her share of the accumulations was included in the fund set apart for her benefit. The process for ascertaining the amount of accumulations so included is obvious from the foregoing statement. Of the amount received by the defendant as his distributive share, to wit, $77,115.77, the sum of $27,115.77, as we have seen, consisted of net accumulations. Applying that proportion to the remainder of the trust fund ($23,138.83) — *. e., $48,153.83 less $25,000 —the product is the amount of accumulations contained therein. But the sum thus obtained is the amount of accumulations during the fourteen years that elapsed after the death of the testator to the time of the settlement before the surrogate. As the plaintiff was not born until five years after the death of the testator, nine-fourteenths only of the sum ascertained as aforesaid, is the amount which she is now entitled to have paid to her out of said sum of $23,138.33.

In ascertaining the amount of such accumulations, no notice need be taken of the fourth of the “Therina Hall” principal, as it has been taken into the account as of the date of her death ; it must be added, however, to the principal sum remaining in the hands of the trustee for the benefit of the plaintiff, and no abatement of taxes is required, as they have all been allowed to the executors or the trustee:

The learned counsel for the plaintiff has suggested another formula for ascertaining the amount of accumulations, which is, to deduct from the $23,183.33 a sum which, at compound interest for nine years, will produce the $23,183.33, and the remainder will be the amount of the accumulations for the nine years. But that rule assumes that the whole estate was kept invested at such rates as to produce seven per cent interest, and that the interest was promptly collected and invested at like rates. Of that there is no proof, and it will hardly do to decide .this question against the defendant upon the presumption of such unusual diligence on the part of the executors. -

We think that under the circumstances of the case the defendant is properly charged -with interest at seven per cent with annual rests. The interest accrued prior to the recent statute reducing the rate of interest to six per cent. We agree that it is only in cases of gross negligence and disregard of duty on the part of trustees that a rule so severe should be imposed, but in our judgment this is such a case. The facts already stated seem to us to justify that conclusion. We know of no precedent that forbids the rule adopted at Special Term. The case of Walker v. Woodward (1 Russ., 107) seems to be a precedent for it. There the husband of an administratrix had carried on a farming business with the assets of the intestate, and in his answer he admitted that he had made a profit, but as he had kept no accounts and had blended the transactions of the farm with his other concerns he could not set forth the amount of the profits. The account was ordered to be taken against him with annual rests, and interest at five per cent (the highest rate in England) on those annual rests. The case is cited in Hill on Trustees (page *523), from which the above statement of the decision is taken.

The Special Term denied the defendant commissions and he excepted. An accounting upon the basis herein above indicated will make the plaintiff good so far as her rights are made to appear, and that being the case we think the defendant is entitled to commissions. In Meacham v. Sternes (9 Paige, 398), the chancellor allowed a trustee commissions on sums with which he was charged in consequence of losses arising from his negligence. And in King v. Talbot (supra), Judge Woodruff said that “even in cases of misconduct or gross negligence it is at least doubtful whether the settled rule in this State would not require the allowance of commissions.” (P. 96.) We think, also, the defendant is entitled to have his commissions deducted at each annual rest. (Vanderheyden v. Vanderheyden, 2 Paige, 287.)

We accordingly modify the judgment appealed from in the respects abové indicated, and direct that tlie account be restated in accordance witb the views above expressed. As suggested by the plaintiff’s counsel in his printed brief, the plaintiff’s attorneys are directed to restate the account as herein ordered, and to serve a copy on the defendant’s attorneys, and in case of difference between them the judgment may be brought on for settlement before Mr. Justice Barker, by either party upon five days’ notice to his- adversary

The plaintiff is allowed costs of this appeal against the defendant personally.

Hardin, J., concurred.

Present — Smith, P. J., and Hardin, J.

Ordered accordingly.


source: Caselaw Access Project

author: Smith, P. J.:

license: Public Domain

text:
    CATHERINE WALDELE, as Administratrix, etc., of JOHN E. WALDELE, Deceased, Appellant, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Respondent.

      Evidence — admissibility of declarations of an injured person as pa/i’t of the res gestae — evidence as to the pecuniary condition of the deceased’s mother.

    About midnight of July 1, 1876, a train of the defendant’s freight cars passed Kent street, in the city of Kochester, going east.. It was followed, at a distance of about fifty feet, by a single engine and a tender running backwards. The plaintiffs intestate was struck at the crossing by either the train or the engine and killed. It appeared that immediately after the engine passed the deceased was found lying on or near the track mangled and bleeding. He was at once picked up and carried to the sidewalk. Some twenty or twenty-five minutes thereafter his brother arrived and conversed with him. Both the deceased and his brother were deaf mutes and the conversation was carried on by motions of the hands.
    Upon the trial of this action, brought to recover damages for the negligent killing of the deceased, the brother was allowed, against the defendant’s objection and exception, to answer the question: “ What did he (the intestate) tell you? ” He answered it by saying “ John said he got hit; John said there was a long train; that he stood waiting for it to go, and an engine followed and struck him.”

      Held, that the propriety of allowing the question to be put rested to a great extent in the discretion of the trial judge, and that under the peculiar circumstances of this case no such plain error or abuse of discretion was shown as required the reversal of his decision.

      That if any part of the answer was objectionable the remedy of the defendant was to move seasonably to have it stricken out.
    It appeared that the deceased, although of age, had voluntarily contributed to the support of the plaintiff, his mother.

      Held, that evidence to show that she had no means of her own and needed pecuniary aid was properly received as bearing upon the question of the possible continuance of her son’s assistance if lie had lived.
    Appeal from an order of the Monroe Special Term, setting aside a verdict in favor of the plaintiff and granting a new trial.

      William S. Oliver, for the appellant.

      Edward Harris, for the respondent.
   Smith, P. J.:

The plaintiff’s intestate, a deaf mute, was fatally injured, about midnight of July 1, 1876, by being run over by one of defendant’s engines at the Kent street crossing of defendant’s railroad, in the city of Rochester. He died in about three hours after the injury. No witness saw the occurrence. It was proved that about the time of the injury a train of freight cars passed Kent street going eastvardly, followed, at a distance of about fifty feet, by a single engine and tender running backwards. It became a controverted question at the trial, whether the deceased was struck by the engine drawing the train or by the following engine.

The plaintiff called as a witness Philip Waldele, a brother of the intestate, also a deaf mute, who testified that he saw his brother, the night he was struck, lying on the Kent street sidewalk, and talked with him And it appeared by the testimony of other witnesses, that immediately after the engine passed, the intestate was found lying on or near the track, mangled and bleeding, and was at once picked up and carried to the sidewalk, and that his brother arrived within twenty or twenty-five minutes after the intestate was removed to the sidewalk. The conversation between the brothers was carried on by motions with the hands.

The appeal book states that the witness was asked, “What did he,” the intestate, “ tell you ? ” The defendant’s counsel objected to the evidence upon the ground — (1) that the declarations of the deceased are incompetent; (2) that it is no part of the res gestee; (3) that whatever the conversation may have been, it took place at a time considerably subsequent to the time of the injury, at a place other than where the injury occurred; (4) that the evidence is inadmissible for any purpose. The court overruled the objection, and the defendant’s counsel duly excepted. The defendant’s counsel further objected to the reception of this evidence, upon the ground that the declarations of the deceased are not competent for the purpose of establishing either negligence on the part of the defendant, or absence of negligence on the part of the deceased. The court overruled the objection and defendant’s counsel duly excepted. The witness answered, “ John said he got hit; John said there was a long train; that he stood waiting for it to go, and an engine followed añd struck him.”

The learned judge at Special Term held- that the admission of the testimony was erroneous, and on that ground alone, he ordered a new trial. We are unable to concur in that conclusion. The case of The Travellers Insurance Company v. Mosly (8 Wall., 397), which was regarded at Special Term as opposed to the ruling at circuit, seems to us an authority in support of it. That was an action on an accident insurance policy, and the question litigated was whether the insured had died from injuries received in accidentally falling down stairs, or whether he died of disease (congestion of the brain). No witness saw the accident. The plaintiff was permitted to prove declarations, made by the deceased soon after the time of the alleged accident (1) as to his'bodily pains and sufferings, and (2) that the injury was caused by falling down the stairs. In discussing the admissibility of the declarations of the deceased as to his pains and condition, Judge Swayne, who delivered the prevailing opinion, remarked that they related to present existing facts at the time they were made, and that in receiving such evidence for that purpose, “ anything in the nature of narration must be excluded,” and he held that within that rule thus limited the testimony was properly received. He then proceeded to consider the declarations to prove the fall, and held them admissible for that purpose, not as a statement by the patient in the nature of a disclosure of his symptoms, as the judge at Special Term supposes in his opinion, but upon the distinct ground that although made some time after the main event, they were so conhected with it by the attending circumstances as that they formed a part Of the res gestes. The same principle is asserted in the cases of Thompson v. Trevanion (Skinner, 402); Rex v. Foster (6 Carr. & Payne, 325); Commonwealth v. M’Pike (3 Cush., 181); and Hanover R. R. Co. v. Coyle (55 Pa. St., 402), cited by Mr. Justice Swayne. To these may be added Commonwealth v. Hackett (2 Allen, 136), and several other cases cited by a writer in 21 Alb. Law Journal, 484. We think the case before us is clearly within the rule laid down in the cases cite 1. The statement of the injured man, as to the cause of the accident, was made to his brother, who was the first person he saw after the occurrence with whom he could converse, and it was so soon after the event as, in view of all the circumstances, to preclude the idea of design. It is, to a great extent, in the discretion of a trial judge to say whether, under all the circumstances of the case on trial, declarations of that nature are a part of the res gestes, and his decision should not be reversed except for plain error or abuse of discretion.

As we read the opinion of the judge at Special Term, he concedes that so much of the declaration of the deceased as tended to prove that the deceased had been run down by the cars was admissible, as descriptive of his existing injury. That being the case, the objections taken at the trial were properly overruled, as they went upon the ground that no answer to the question was admissible. If the answer was objectionable in part only, the remedy of the defendant was to move seasonably to strike out the objectionable part, but that was not done. We think the evidence was admissible.

The defendant’s counsel insists that the order for a new trial is sustainable on other grounds. He contends that the evidence was insufficient to show due care on the part of the intestate and that the defendant was negligent. A careful review of the evidence satisfies us that those questions were properly left to the jury, and their verdict is conclusive upon them.

The other exceptions in the case point to no error. Proof of the plaintiff’s present pecuniary circumstances, she being the mother of the deceased, was proper for the consideration of the jury in determining the amount of her pecuniary damage. (Erwin v. The Neversink Steamboat Co., 23 Hun, 573, 577; Harlinger v. The New York Central and Hudson River R. R. Co., decided in this department, in .October, 1882, and not reported.) It appeared that, the deceased, although of age, had voluntarily contributed to the support of his mother, and the fact that she had no means of her own, and consequently needed pecuniary aid, bore upon the question of the probable continuance of her son’s assistance if he had lived.

The order appealed froto should be reversed.

Harden and Macomber, JJ., concurred.

Order granting a new trial reversed.


text:
    SENECA M. SHORT, Plaintiff, v. JOSEPH MEDBERRY, Defendant.

      Manufacturing corporation — who is a laborer or servant within the meaning of section 18 of chapter 40 of 1848 — ara action against a stockholder must be brought within one yea/r from the maturity of the debt.

    The plaintiff’s assignor applied to the Rochester Frear Stone Company, a corporation organized under chapter 40 of 1848, for a situation and was told that one would be given to him if he would procure a loan of $3,000 for the company. He procured the loan and began to work for the corporation at a salary of $1,000 a year, payable monthly or as he wanted his pay. He acted as foreman, took part in the manual labor required to manufacture the stone, kept the time of the men, solicited orders; collected bills and did whatever was required of him by the secretary of the company, who acted as its general superintendent. Held, that the plaintiff’s assignor was a laborer or servant within the meaning of section 18 of the said act, making the stockholders personally liable for his wages.
    The action was brought November 13,1878, to recover for services rendered between April 12, 1875, and November 1, 1878.

      Held, that under section 25 of the act, as the salary was payable monthly, only so much thereof could be recovered as became due within one year prior to the time of bringing the action.
    Motion by the defendant for a new trial, on exceptions taken at the Monroe Circuit and ordered to be heard in the first instance at the General Term.
    The action was brought by the plaintiff, as the assignee of one Curtis, to recover an amount due for services rendered by him as a laborer or servant to a corporation between April 12, 1875, and November 1, 1878.

      W. W. Webb, for the plaintiff.

      H. II. Woodward, for the defendant.
   Smith, P. J.:

This action was brought to enforce the personal liability of the defendant'as a stockholder of the Rochester Frear Stone Company, a corporation formed under chapter 40 of the Laws of 1848, for services alleged to have been rendered by the plaintiff’s assignor as a “laborer” and “servant” in the employ of said company. Judgment had been recovered against the company upon the claim and an execution returned unsatisfied. The answer of the defendant admitted that he was a stockholder of the company and took issue with the other material allegations in the complaint.

One of the questions raised by the exceptions is whether the plaintiff’s assignor, Lewis Curtis, rendered services for the corporation as a “laborer” or “servant,” within the meaning of section 18 of the act referred to. Curtis applied to the company for a situation and was told they would give him one, if he would procure them a loan of $3,000. ILe procured the loan, and began work for the company at $1,000 a year, payable monthly or as he wanted his pay. He acted as foreman, took part in the manual labor required to manufacture the stone, kept the time of the men, solicited orders, collected bills, and did whatever was required of him. The secretary and treasurer of the company acted as general superintendent and Curtis was under his directions.

"We are inclined to think that Curtis is to be regarded as a laborer or servant within the meaning of the section cited. He rendered manual service of the same kind as that performed by the other laborers in the employ of the company, and it seems to have been one of his principal duties and not a mere incident to his position. The plaintiff’s contention on this point seems to be supported by the cases of Conant v. Van Schaick (24 Barb., 87); Williamson v. Wadsworth (49 id., 294); Hovey v. Ten Broeck (3 Robt., 316), and Vincent v. Bamford (42 How. Pr., 109). The cases cited by the counsel for the defendant differ from the case before us. In Aikin, v. Wasson (24 N Y., 482), and Balch v. New York and Oswego Midland Railroad Company (46 id., 521), the claim was for work done by a contractor. Hill v. Spencer (61 N. Y., 274), and Krauser v. Ruckel (17 Hun, 463), were cases of a general superintendent or managing agent having control of mines at a distance from tiie office of the company. Dean v. De Wolf (16 Hun, 186) was the case of an assistant superintendent with like powers. And in Coffin v. Reynolds (37 N. Y., 640), the services were those of the secretary of the corporation. Curtis was neither contractor, officer or general superintendent, and although his duties were not specifically defined, prominent among them was the doing of manual labor in the manufacturing business of the company, in common with other laborers in its employ.

The defendant’s counsel contends that the case is not within the statute, because the employment of Curtis was upon the condition of his obtaining a loan of money for the company. But it does not appeal1 that the amount of his compensation was increased by the fact he was to procure the loan; no time was fixed during which the engagement was to continue; and for aught that appears the sum agreed to be paid was no more than a reasonable compensation for his services, aside from the procuring of the loan. The circumstance that in addition to performing the duties of his position, he stipulated to do something more, for the advantage of the company, ought not to deprive him or his assignee of the benefit of the statute if he is otherwise entitled to it. Again, Curtis continued to labor for the company for more than three years, and the claim in suit is for his services during the last year of the term, and as there was no new agreement, and the hiring was impliedly from year to year, the agreement to procure the loan which was executed by him at the beginning of the first year, was no part of the consideration for the wages agreed to be paid him in the subsequent years.

There are several exceptions to evidence, but on examining them we find they point to no error.

The recovery, however, is for too large a sum. By section 24 of the act of 1848, it is a prerequisite to the liability of a stockholder that a suit for the debt be brought against the company within one year after the maturity of the debt. Curtis’ suit against the company was brought 13th November, 1878. As his salary was payable monthly, the statute bars the entire claim, except for the last eleven monthly instalments, amounting with interest to the date of the verdict to $1,073.56, and to that sum the recovery should be reduced. As the plaintiff’s counsel was understood to consent, on the argument, that such reduction should be made, the motion for a new trial is denied, and judgment for that sun: is ordered for the plaintiff on the verdict, the order to be entered' herein to direct that the verdict be so reduced.

ÍIardin, J., concurred; Macomber, J., not sitting.

Yerdict reduced to $1,073.56, as of the date of the verdict, and a new trial denied, and judgment ordered for that sum on the verdict.


text:
    ADNA BOWEN, Appellant, v. WILLIAM F. MANDEVILLE, Respondent.

      Election of remedies — when two remedies arre not inconsistent.

    The defendant-sold to the plaintiff a bond and mortgage, payable in installments, and guaranteed the payment thereof. The plaintiff sued the defendant on his guaranty for each of the first two installments of interest as they matured, and obtained judgment in each action, but could collect no portion thereof. At the time of commencing the second action he brought this one to recover damages for fraud, alleging that the securities were worthless and claiming to recover their full amount.

      Held, that the remedies which the plaintiff sought to pursue were not inconsistent, and that the bringing of the former action did not prevent the prosecution of this one.
    Appeal from au order of the Monroe Special Term denying a motion, made on a case and exceptions, to set aside a nonsuit and for a new trial.

      Ti. D. Tudker, for the appellant.

      Edward Webster, for the respondent.
   Smith, P. J.:

The action is to recover damages for an alleged fraud on the sale and guaranty of payment of a bond and mortgage by defendant to the plaintiff.

' The bond was payable in instalments, having, several years to-run, with interest annually. The plaintiff sued the defendant on his guaranty for each of the first two instalments of interest as they matured and obtained judgment on each, but no part of the same has been collected. At the time of commencingb the last of those suits he commenced this action also for fraud, alleging that the securities were worthless and claiming to recover their full amount as damages. The trial judge ordered a nonsuit upon the ground that the action is barred by the recoveries in the suits upon the guaranty. That ruling presents the only question in the case.

We think the learned judge fell into an error by treating the two-remedies pursued by the plaintiff as inconsistent. Assuming that the transaction was fraudulent on the part of the defendant, three remedies were open to the plaintiff: (1) to rescind the contract, treating it as void by reason of the fraud; (2) to enforce the securities as they became due; or, (3) to sue for damages by reason of the fraud. ' A resort to either of the last two remedies would have been an affirmance of the contract, and consequently a bar to the remedy first suggested, because he could not rescind the contract after having elected to affirm it. Such a course would be inconsistent. Remedies are inconsistent which rest upon hostile and irreconcilable claims in respect to the same subject-matter. But what is there in the nature of the last two remedies to prevent the plaintiff from resorting to both of them ? If it be said that he, would thus be allowed a double recovery for the same thing, the answer is, that he can have but one satisfaction. The case, as we' regard it, is the ordinary one of collateral and concurrent remedies, either of which may be resorted to without barring the other. They do not bar each other, because, one being founded on contract and the other in tort, they are not identical; and each being in affirmance of the contract, they are not inconsistent. If it had appeared that the plaintiff’s judgments in the actions upon the guaranty had been actually satisfied in whole or in part, such satisfaction might have been set up in mitigation of damages in the present action, but we fail to see that the plaintiff has lost his cause of action for the fraud by his ineffectual effort to collect his debt upon the guaranty.

These views are supported by the following authorities, among •others that might be cited : Allaire v. Whitney (1 Hill, 484; S. C., 1 Comst., 305); Drake v. Mitchell (3 East, 258); Chipman v. Martin (13 Johns., 241). The cases relied on at Special Term, or now-cited by the resiiondent’s counsel, are all cases where an attempt was made to pingue remedies which were inconsistent, within the definition above laid down. They are: Lloyd v. Brewster (4 Paige, 537); Bank of Beloit v. Beale (34 N. Y., 473); Morris v. Rexford (18 N. Y., 552); Rodermund v. Clark (46 N. Y., 354); Field v. Bland (59 How. Pr. R., 85); Sanger v. Wood (3 Johns., Ch. R., 416).

The order appealed from should be reversed, and a new trial ordered, the costs to abide event.

Hardin and Barker, JJ., concurred.

Order appealed from reversed and new trial ordered, costs to abide event.


text:
    REUBEN H. FARNHAM, as Supervisor of the Town of Attica, Appellant and Respondent, v. CHARLES B. BENEDICT, Respondent and Appellant.

      Action by a town officer under section 1926 of the Oode of Oivil Procedure — it is only “ in a pi'oper case ” that the court will substii/ate his successor upon the expiration of his term of office — the order of the Special Term granting an application for substitution is appealable— Oode of Oivil Procedure, sec. 1930.
    Where, after an action has been brought by a supervisor of a town, under section 1926 of the Code of Civil Procedure, his term of office expires, it is only “in a proper case” that the court will upon the application of his successor substitute him in the place of the original plaintiff.
    The order of the Special Term di-ecting such substitution to be made is reviewable upon appeal by the General Term.
    Where it appears from the relation existing between the defendant and the new supervisor, and the attitude of the latter to the subject-matter of the litigation, that the application is made in the interest of the defendant rather than of the town it should be denied.
    Appeal by the plaintiff from an order made at a Special Term substituting James Gr. Doty, in the place of Reuben II. Farnham, as plaintiff; and by the defendant and one James Gr. Doty, the present supervisor of the town of Attica, from so much of the order as ■ staid proceedings in the action until the next annual town meeting.

      L. W. Thayer, for the plaintiff.

      W. F. Cogswell, for the defendant.

      J. S. Morgan, for James G. D.ty, supervisor, etc.
   Smith, P. J.:

This is an appeal from an order made at the Wyoming Special Term, substituting James G. Doty, the present supervisor of the town of Attica, as plaintiff in the place of Reuben H. Farnhain, whose term of office has expired since the commencement of the suit. The application was made by Doty on the sole ground that he is the supervisor of the town

Section 1930 of the Code of Civil Procedure is in the following-words :

‘‘Section 1930. In such an action or special proceeding” (referring to a class of actions of which this is one), “ the court must, in a proper case, substitute a successor in office in place of a person made a party in his official capacity, who has died or ceased to hold office, but such'a successor shall not be substituted as a defendant without his consent, unless at least fourteen days notice of the application for the substitution, Has been personally served upon him.” The counsel for Doty and the defendant are in accord in claiming that this section is imperative, and requires the court to substitute the successor in office, on application, in all cases where the original plaintiff has ceased to hold office as well as where he has died. That construction fails, we think, to give due effect to the words “ in a proper case.” Those words seem to imply very clearly that there may be cases falling within the language of the section in which it would not be proper to • grant the application, and that idea is expressly alleged in Mr. Throop’s note to the section as the reason why those words were inserted.

In view of the relations that are shown by the motion papers to exist between Mr. Doty and the defendant, the. attitude in which Doty stands to the subject-matter of the litigation, and the importance to the town of having the action faithfully prosecuted to a speedy termination, we cannot hold that this is a proper case in •which to grant the application. Looking at the affidavits we cannot resist the conclusion that the application is in the interest of the defendant rather than of the town, and that to allow it would be equivalent to ordering the action to be discontinued. Until substitution the action may proceed in the name of the original plaintiff. So held under the section of the Revised Statutes for which section 1930 of the Code is in part a substitute. (Manchester v. Herrington, 10 N. Y., 164; Board of Excise v. Garlinghouse, 45 id., 249.)

The question of the propriety of granting the substitution, cannot be said to be one resting in discretion merely, and if it were, it is apparent from the condition annexed to the order, by the learned judge at Special Term staying proceedings till the next town meeting, either that he ordered the substitution under the impression that the statute imperatively required it, or that he thought the case was not a proper one for substitution unless the proceedings were staid. In the latter alternative, as well as the first, the decision of the Special Term is not conclusive, and the .•order is appealable; for as we look at the case, the stay cannot be upheld, the applicant being entitled to an unconditional substitution or none, and no facts being shown, that we are aware of, which made the 'Stay pertinent; and if the stay -is reversed the order will be left in a shape which the Special Term did not direct •or intend.

Section 766 of the Code of Civil Procedure, referred to by the ■counsel for Doty and the defendant applies to the case of “ death or removal.” It is perhaps difficult to reconcile it with section 1930 in all respects, but it is hardly to be supposed that if there is a conflict between them the latter section was intended to give way to that which precedes it; and besides, it is obvious that the case is not within the letter of section 766.

We think the entire order should be reversed, and the motion for substitution denied, without costs to either party.

Hardin and Haight JJ., concurred.

Order reversed in all respects, without costs to either party.


author: Haight, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. CHARLES W. FULLER, as Superintendent of Poor, etc., Respondent, v. DAVID CARNEY, Appellant.

      Bastardy proceedings — can only be reviewed at General Term upon a common-law writ of certiorari — evidence—a witness cannot be asked to state the coloo' of a child's eyes in proceedings to charge a person with being its father.

    Since the adoption of the Code of Criminal Procedure orders of the Court of General Sessions made in bastardy proceedings can only be reviewed at General-Term upon a common-law writ of certiorari.

      People ex rel. Board of Charities of the City of Utica v. Davis (15 Hun, 209) distinguished.
    Upon a trial in the Court of Sessions, in proceedings to have the defendant i adjudged the father of a bastard child, the district-attorney was allowed, against the .defendant’s objection and exception, to ask the mother, who was being examined as a witness, to look at the child' and tell what the color of its eyes was.

      Held, that this was error.

      Petrie v. Howe (4 T. & C., 85) followed.
    Appeal by the defendant from an order of the Court of General Sessions of tlie county of Erie, adjudging him to be the father of a bastard child.

      Humphrey db Lockwood, for the appellant.

      H. W. Hatch, district-attorney, for the respondent.
   Haight, J.:

It is contended on the part of the district-attorney that no appeal lies to this court from the adjudication of the Court of General Sessions, and that the appeal should be dismissed. This question was passed upon by this court in the case of The People ex rel. The Board of Charities of the City of Utica v. Davis (reported in 15 Hun, 209). In that case it was held that an appeal will lie to this court.

Since the making of this decision, the remaining nine chapters of the Code of Civil Procedure have been enacted. Subdivision 9 of section 3317 provides : “ Chapter 12 does not affect the statutes remaining unrepealed after the first day of September, 1877, touching the review of proceedings in a criminal case.” Sections 13-iO and 1357 of the Code of Civil Procedure, are included in chapter 12.

In view of this subsequent legislation, we have thus thought it advisable to again examine the question, and determine whether an appeal will lie in these proceedings.

The reviser, in his notes to section 1340 of the Code, calls atten tion to the decision of The People v. Davis (supra), and then to the subdivision 9 of section 3347, thus intimating that he did not consider the provisions of section 1340 applicable.

The first question to be determined is whether or not these proceedings are civil or criminal. Barbour, in his criminal treatise (522, 523), called them quasi criminal, and such they have ever been regarded by the courts until the enactment of the Code of Criminal Procedure, in which they are denominated “ special proceedings of a criminal nature.” (See part 6.) Title 5 of part 6 makes provision for the support of a bastard child, the manner in which the father is to be determined, and for an appeal from the order of the magistrate to the Court of Sessions of the county, and for the determination by that court. No appeal, itowever, is provided from the judgment or determination of the Court of Sessions.

The former Code pertained to procedure in civil actions and proceedings, the latter Code to criminal actions and proceedings. Subdivision 9 of' section 3347, of the former Code, expressly provides ■ that the chapter in reference to appeals in civil actions and proceedings does not affect the review of proceedings in criminal actions. All of the statutory provisions in reference to these proceedings are embraced in the Criminal Code.

Our conclusions are, therefore, that sections 1340 and 1357 of the Code of Civil Procedure have no longer any application to these proceedings, and therefore do not authorize a rhview by appeal to this court.

Section 515 of the Code of Criminal Procedure provides that “ writs of error and of certiorari in criminal actions as they have heretofore existed, are abolished; and hereafter the only mode of reviewing a judgment or order in a criminal action is by appeal.” Then follows the provisions for appeals to the Supreme Court from the judgment on a conviction after indictment, etc. It will be observed that the writ of error and certiorari are abolished only as to criminal actions. No provision is made for abolishing the writs as to special proceedings of a criminal nature; as to those proceedings, they appear to stand as they have heretofore existed. Heretofore it has been the practice to review these proceedings in this court upon the common law writ of certiorari, and such we regard as the correct practice under the present Code.

The district-attorney should have moved seasonably to have had the appeal dismissed instead of bringing the case on for argument on the appeal. In view of the fact that the defendant was probably mislead by the decision of the People v. Davis, we are of' the opinion that the defect should now be deemed to have been waived.

Upon the trial the district-attorney asked of the mother of the bastard child, who was then a witness upon the stand, this question : Look at the child and tell what the color of its eyes are ? ” ' This question was objected to by the defendant upon the - ground that it was immaterial, incompetent and improper. The objection was overruled and exception taken by the defendant. The witness answered: “ Its eyes are blue.” We are of the opinion that this was error. This evidence enabled the court to compare the color of the child’s eyes with those of the defendant who was present in court. We do not regard this kind of evidence , as safe or proper. In the case of Petrie v. Howe (reported in 4 Thomp. & Cook, 85), the question was as to the color of the child’s hair. It was held in that case that such evidence was calculated to, and probably did, prejudice the defendant, that it was improper and a new trial was granted. The argument used in that case in reference to the color of the hair applies with equal force in this case as to the color of the eyes. Common observation reminds us that in families of children, different colors of hair and eyes are common and that it would be dangerous doctrine to permit a child’s paternity to • be questioned or proved by the comparings of the color of its hair or eyes with that of the alleged parent.

We discover no other error in this ease.

Judgment reversed, and proceedings remitted to the Court of Sessions of Erie county, and a new trial ordered in that court, with costs of this appeal to abide the event.

Smith, P. J., and Hardin, J., concurred.

So ordered.


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    CHARLES D. GOODRICH, Respondent, v. THE PENNSYLVANIA AND NEW YORK CANAL AND RAILROAD COMPANY, Appellant.

      Negligence — standing upon ike platform of a ccur is not necessarily contributory negligence.

    The defendant’s road leaves the depot at Towanda, Pennsylvania, upon a sharp curve, which extends to a river crossed by a bridge 1,500 feet long. To start the train, it is necessary to have an additional engine to push it. Soon after the pushing engine had left the train, on which the plaintiff was a passenger, it parted between the seventh and eighth cars, the draw head of one of them having pulled out. The parting of the train broke the bell cord and rang the engine bell, but the engineer, thinking it unwise to stop upon the bridge, continued on' until he had nearly crossed it. He then applied the air brakes and stopped the train, without knowing what had occurred. The rear part of the train came on and collided with the front part, causing a concussion which ' broke the platform upon which the plaintiff was standing and injured him. As the train left the depot, the plaintiff left his seat in the car and went upon the platform. Notices were posted in the car for-bidding passengers to stand upon the platform, but the plaintiff testified that he did not notice them, and that he did not hear the brakeman tell him that it was against the rules to stand upon the platfonn.
    In an action brought by him to recover damages for the injuries sustained, held, that, as the draw head would not have pulled out had it not been out of repair or improperly constructed, the question of defendant’s negligence was properly submitted to the jury.
    That, under all the circumstances of the case, the question of the plaintiff’s contributory negligence was also properly submitted to them, and that a verdict in his favor would not be set aside.
    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe verdict of a jury at the Livingston Circuit, and from an order denying a motion for a new trial made upon tbe minutes of tbe justice before whom tbe action was tried.

      George M. Divert, for the appellant.

      James Wood, for the respondent.
   Haight, J.:

Tbe defendant is a corporation created by tbe laws of Pennsylvania, and is engaged in operating a railroad from Elmira to Philadelphia. The plaintiff was a passenger on one of tbe defendant’s cars, and had a seat inside of the car. At the depot at Towanda, Pennsylvania, he left his seat and went upon the platform of the car and stood there until the accident in question occurred. A short distance from the depot there was a bridge across the river 1,500 feet long. From the depot to the river there was a sharp curve, which makes it necessary, in order to get the train under motion, to have an additional engine on the rear to push. The engine in the rear pushed the train on-which the plaintiff was riding until it reached the bridge and then drew off. Shortly after the engine had ceased to push, the train parted between the seventh and eighth cars, the draw head in one of the cars having pulled out. The parting of the train broke the bell-cord and rang the bell of the engine. The engineer thinking it unsafe to stop upon the bridge, continued on until he had got his train nearly across the bridge, and then applied the air brakes and stopped his train, not then knowing what was the matter. As he stopped, the rear part of the train came on, colliding with the cars attached to the engine, causing a concussion, breaking the platform on which the-plaintiff was standing and injuring him. His only excuse for standing upon the platform was his desire to see the village of Towanda. At the close of the evidence the defendant moved for a nonsuit upon the grounds, first, that it had not been shown that the accident occurred by the negligence of the defendant; second, that the plaintiff was himsélf guilty of negligence in not being in his place on the train, brrt for which negligence he would not have received the injury complained of. These motions were denied by the court, and the defendant duly excepted. These motions present the only questions raised by the appeal.

Our reading of the appeal book satisfies us that the question of the defendant’s negligence was properly submitted to the 'jury. It appears that the train was made up of cars from different roads. Some of them were old and of different construction as to platform. It appears that the train parted by reason of the pulling out of the draw head. This would not have occurred if the draw head had not been out of repair or improperly constructed. The defects, whatever they were, it would seem ought to have been detected by a careful and proper inspection of the car.

The plaintiff’s alleged negligence in standing upon the platform presents a more difficult question to dispose of. In this State there is a statute which would be controlling upon the question, but inasmuch as the accident occurred in Pennsylvania this statute has no application. ¥e have been unable to find any reported case in this State or Pennsylvania in which the question presented' has been decided. In the case of Clark v. The Eighth Avenue Railroad Company (reported in 36 N. Y., 135) it was held that the riding upon the steps of a street railroad car was negligence prima facie, and that the onus was upon the passenger to rebut the presumption ; and showing that the car and the platform were full of passengers with no room for more, and that the conductor had called for and received the passenger’s fai’e whilst he was standing upon the steps, rebutted the presumption.

So, also, it was held in the case of Ginna v. The Second Avenue Railroad Company (67 N. Y., 596). In that case the person killed was standing upon the platform of a street car with three or four other passengers. The car was crowded inside. It was not held to be negligence per sc and the case was properly submitted to the jury. To the same effect is the case of Hadencamp v. The Second Avenue Railroad Company (1 Sweeny, 490). In the case of Ward v. The Central Park, etc., Railroad Company (11 Abb. [N. S.], 411) it was held that where a passenger stood upon the edge of the platform of a street car without holding on to anything, and with knowledge of the bad condition of the street and track caused by the accumulation of ice and snow, and maintained such position after an opportunity had been given him to exchange it for a safer place and was injured by being'thrown from the car, that he could not recover.

In the case of Solomon v. The Central Park, North and East River Railroad Company (1 Sweeny, 298), it was held that a boy sitting on the steps of the front platform of the street car, being thrown off by a jolt and injured, could not recover in the absence of evidence that the car was crowded, or that there was not plenty of room inside.

In the case of Robertson v. The New York and Erie Railroad Company (22 Barb., 91), it was held that a person riding upon a locomotive, knowing that it was against the rules of the company, but with the consent of the engineer, could not recover for injuries received. ,In Pennsylvania it has been held that a person could not recover for injuries received in leaping from a train of cars while it was in motion and before it had stopped at the depot; that they could not recover for injuries received by reason of putting the elbow or arm out of the window; that a person could not recover for injuries received whilst riding in a baggage car against the rules of the road, under circumstances where no injury would have been received in case he had been riding in a passenger coach.

In the case of Willis v. The Long Island Railroad Company (34 N. Y., 670), it was held that it was not the duty of passengers to pass from one car to another in search of seats while the cars were in rapid motion, and that the plaintiff being injured by an accident while he was standing upon the platform of the car, being unable to find a seat within, could recover.

In the case of Nolan v. The Brooklyn City and Newtown Railroad Company (87 N. Y., 63), the plaintiff was riding upon the front platform of the street car; there were seats inside; he was smoking, and it was the custom of the company to permit smoking on that platform and not elsewhere; whilst so riding he was injured, and it was held that he could recover. The learned judge writing the opinion in the case, says: It is settled that, independent of the mandate of the statute, it is not, even in the case of steam cars, negligence per se for a passenger to stand upon the front platform of a moving car,” citing the above authorities.

"We have referred to the authorities cited by the learned judge, and have already called attention to what they hold. It will be observed that they fail to state the rule as broadly as here stated. Most of the cases referred to are street car cases. Whilst it may be claimed that this part of the opinion which attempts to state the rule in reference to steam cars is obiter, still, in the absence of authority holding the contrary, we do not feel at liberty to depart from the views so recently expressed by our highest court.

It appears from the evidence that notices were posted upon the ends of each of the cars, forbidding passengers standing on the platform. The plaintiff, however, testifies that he did not notice them and did not hear the brakeman tell him that it was against the rules to stand upon the platform.

It further appears that the train had just left the depot, and had not yet commenced running at a full rate of speed.

Under all the circumstances of the case, we are of the opinion that it was a question for the jury whether or not it was negligence for him to stand upon the platform under such circumstances.

The order and judgment should be affirmed.

Smith, P. J., and Hardin, J., concurred.

Judgment and order affirmed.