author: Landon, J.: Bockes, J.

text:
    BARTHOLOMEW SCOTT, Respondent, v. ELIZABETH A. SWEENEY, JAMES J. SWEENEY and WILLIAM A. SWEENEY, Appellants.

      Liability of a master for an ingury to a servant — when the negligence is to be treated as that of the master, and when as that of a fellow servant.

    The plaintiff was engaged with two other laborers, all employees of the defendants, in moving stone on a truck in the defendants’ stone yard. While passing a derrick the boom fell, striking the plaintiff and causing the injury complained of in this action. It was claimed' that the boom was lowered at that particular time in pursuance of the order of one Simpson, the defendants’ foreman, who had charge of the derrick. The judge charged the jury that if Simpson had authority from the defendants to direct the operations of the derrick, then pro hac vice his orders were their orders; and if the order given by him to lower the boom was, under the circumstances of the case, a negligent one, then his negligence was that of the defendants and rendered them liable for the damages sustained by the plaintiff.

      Held, that this was error; that the negligence, if any there were, of Simpson was the negligence of a co-employe and not that of the master. (Bocees, J., dissenting.)
    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe verdict of a jury.
    Tbe action was brought to recover damages for injuries alleged to have been occasioned by tbe negligence of tbe defendants. Tbe plaintiff was employed in tbe defendants’ stone yard as a laborer. He was alleged to have been injured through tbe negligence of one Simpson, tbe defendants’ foreman, by tbe lowering of tbe boom of a derrick.

      Alton B. Pcvrker, for tbe appellants.

      J. Newton Fiero, for the respondent.
   Landon, J.:

Within the cases of Crispin v. Babbitt (81 N. Y., 516), and Slater v. Jewett (85 id., 63), I think it should have been held as a matter of law, upon tbe evidence, that Simpson, tbe foreman in charge of tbe defendant’s yard and workmen employed therein, was, with respect to tbe act of lowei’ing tbe boom of the derrick, whereby plaintiff was injured, a fellow servant of tbe plaintiff. These cases point out with some clearness the test running through the previous cases, whereby we can determine whether the act, with respect to which negligence is alleged, is the act of the master or of the servant. Briefly stated, if the act is one which from its nature and character belongs or ought to belong to the department of the master, then it is the master’s act, no matter to what inferior agent or servant the authorization, not the execution when authorized, of the act is intrusted. If, however, the act done or omitted is in the execution of the proper details of the principal work which has been by the master directed to be done, such execution of proper details is the act of the servant, no matter how high the rank of the subordinate who performs the labor. Illustrations taken from the cases may enable us to see more clearly the rule and its application. Whether train No. 50 shall be detained at Cayuga or be sent on to Auburn, is within the department of the master (Sheehan v. N. Y. C. & H. R. R. R. Co., 91 N. Y., 334), but the detail work in taking it, if ordered, within the servant’s department. So the giving a telegraphic order as to where two trains should meet was held in Slater v. Jewett to be the work of the master. The order was properly given and came to the hands of the conductor, who ought to have given it to the engineer, but forgot to do it. It was contended that the conductor was, for the purpose of communicating the order, pro hao nice the master. The court said no, the making of the order was the master’s work, the delivering of it by the servant a detail of execution — the work of a servant. In Crispin v. Babbitt, the foreman who “ represented the defendant and stood in his place,” carelessly turned on steam whereby the plaintiff was injured; it was held to be servant’s work. Suppose instead of turning it on himself, a servant had done it by his direction, it is impossible to see that the rule could have been changed. It would still have been an executive detail, a matter of mere work or labor. And such seems to be the case under review. When Simpson said “lower the boom,” he was carrying out his part of the details of his master’s work, no less than the workman who turned the crank. He was operating the derrick, a work needing one servant to be watchful of details and so to direct the labor of others as to make it useful to tbeir common employer, in moving stone from the yard to the mill. Whether a derrick, or tbis particular derrick, was a proper machine to be used may be a question for the master to decide, but the work of operating it is servants’ work. If therefore the plaintiff was injured by Simpson’s negligence in operating the derrick, or in moving it out of the way, lie was injured by the negligence of a fellow servant. I advise a reversal of the judgment.

Leaened, P. J., concurred.

Bockes, J.

(dissenting):

The plaintiff had a recovery because of an injury received by him when in the defendants’ employ, occasioned by the falling of a boom attached to a derrick used for the moving of stone.

The defendants were wholesale dealers in blue-stone, and had a V yard in which they employed in this business some twenty-five or more persons as hired servants. The plaintiff, with two other fellow laborers, belonged to what was called the mill or laboring gang, and at the time of the accident they were working together. Their principal business was to take stone out of the way and to the rubbing mill.

i A derrick was used to aid in handling stone when necessary or convenient. The workmen on the yard were under the immediate direction and control of Simpson, the defendants’ overseer or foreman. The plaintiff, with his two co-laborers, were engaged in moving a stone on a truck, and in so doing they came under the derrick boom, or nearly so, when the boom fell, striking the plaintiff and causing the injury complained of. Simpson, the foreman, was present directing the work in person, and gave the order (as must be inferred from the verdict of the jury in plaintiff’s favor on this question of fact) to lower the boom, the obeying of which order in its results produced the injury. The boom was controlled in its elevations and depressions by a rope fastened to it, and passing to the top, or nearly so, of the mast of the derrick, then down to a drum around which it passed in coils.

A leading and perhaps controlling question on this appeal grows out of the ruling of the learned judge at the circuit, as to the defendants’ responsibility for the direction given by their foreman to lower the boom. It was urged by the defendants’ counsel at the trial that even if sueb direction or order was given by him under circumstances making it dangerous and improper to be given, it was but the negligence and improper conduct of a co-servant for which the defendants could not be held answerable. On the other hand it was insisted on the part of the plaintiff that the order of Simpson, the defendants’ foreman, was in law the order of the defendants themselves. The learned judge ruled and so instructed the jury, that if Simpson had authority from the defendants to direct the operations of the derrick, then pro hoeo vice, his orders were their orders; and if he gave directions to lower the boom so as to uncoil the rope beyond the point of safety, then the order, if a negligent one under the circumstances, was directly the negligence of the master. This ruling was elaborated in the charge somewhat, but it gives the rule of law on this point in pursuance of which the case was tried. We are of the opinion that in thus ruling the learned judge was entirely correct. It was left to the jury to find on the proof whether the defendants had given’ Simpson superintendence of the working of the derrick, with the right to direct and control the laborers in that regard. There was proof submitted on the point, and the jury were well authorized to find for the plaintiff on that question. It must be assumed that they found that Simpson had authority from the defendants to' direct the operations of the derrick; that he was then in-control of the workmen in their labors, holding the same authority over them as the defendants themselves would have held had they been present to direct. If such was his relation to the laborers engaged in moving the stone on the track, and also to those who might be directed by him to operate the derrick, the mere fact whether or not he could hire and discharge hands would not change the cáseas to the order given by him to lower the boom. It would nevertheless be the order of the defendants in whose place and stead he w;as acting by their authority. It seems that he was their overseer, their foreman, with entire control. It was laid -down in Sheehan v. New York Central and Hudson River Railroad Company (91 N. Y., 334), that when the master delegates to another entire control over a particular branch or circumstance of his business, the person to whom such power is delegated stands in the place of the master as to all duties resting on him to his servants, and his acts or omissions relating thereto are the acts or omissions of the master himself. See also Chicago, Milwaukee and St. Paul Railroad Company v. Ross (31 Alb. L. J., 12, 13), where the question is elaborately considered in the United States Court. The doctrine of a master’s responsibility for an injury caused by the negligence of a co-servant does not as we think have application here, as regards the direction given by Simpson to lower the boom. If the order was a negligent one, a direction improper to be given under the circumstances of the case, the defendants must be held responsible for it, as much so as though given personally by themselves.

But it is insisted that the defendants’ liability does not rest on this question alone; that admitting that Simpson was a co-employe with the plaintiff, and also that the accident was caused in pant by his negligence, still as there was evidence bearing upon the question, and a finding by the jury to the effect that the derrick was itself unfit for the use to which it was put, and that such unfitness contributed to the injury complained of, defendants’ liability would follow. The proposition of law here put forward is unquestionably a sound one. It is the settled rule that as between master and servant it is the duty of the former to furnish the latter for use in the prosecution of his business good and suitable machinery and to keep it in repair; and that responsibility on the part of the master will follow for an injury to the servant caused by the non-oJ)servance of such duty, the latter being without fault. And in connection with this it was laid down in Cone v. Delhi, Schoharie and Western Railroad (81 N. Y., 210), that “neither upon principle nor authority can it be held that negligence of the servant in using imperfect machinery excuses the principal from liability to a co-employee, for an injury which could not have happened had the machinery been suitable for the use to which it was applied;” and it was added, “had the injury resulted solely from the servant’s negligence the case would have been different.” To the same effect is the decision in Ellis v. New York, Lake Erie and Western Railroad Company (95 N. Y., 546). But this case was not tried entirely on the theory of the propositions of counsel above put forward. As it was tried and sent to the jury for determination, the question whether Simpson held the position of master was made an important, and, in one view of the case, a controlling one. As sent to the jury they might have found, and probably did conclude, that Simpson’s position was that of master, and rendered the verdict as a result of such conclusion. Now, if the court instructed the jury erroneously on this subject, there should be a new trial for such error. But we think no error was committed in that regard. Our conclusion on this point is as above stated. After a careful examination of the case, we are of the opinion that the record is free from any error demanding a reversal of the judgment. In a general way it may be said that on all material questions of fact evidence was submitted, and the case was sent to the jury to be determined by them under a charge quite as favorable to the defendants as they have any right to claim. On proof making the remark pertinent to the case, the learned judge said to the jury: If the accident happened in consequence of the insecure fastening of the rope to the drum, of which the defendants ought to have known, or did know, or if the security of the fastening the drum to the rope depended upon leaving on the drum a sufficient number of coils and not uncoiling it too far, and the uncoiling caused the fall, if plaintiff was free from contributory neglect, the defendants are responsible.” These remarks covered the entire case, and in a more favorable light to the defendants, in some respects, than they could rightfully demand.

The order and judgment appealed from must be affirmed, with costs.

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


source: Caselaw Access Project

author: Bockes, J.: Landon, J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. GEORGE W. NYCE, Appellant.

      Evidence — one tried for practicing medicine without a license must prove that he has it — the authority of the institution to issue a diploma must be proved by thepa/rty claiming under it — unconstitutionaliiy of a law of another State — it is not conclusively established' by reading a case from the reports of that State holding it to be unconstitutional.

    "The defendant was convicted of the offense of practicing medicine, without being authorized so to do “by a license or diploma from some chartered school, State board of medical examiners or medical society.” On the trial he admitted that he had practiced medicine at the time and place charged in the indictment, whereupon the prosecution rested.

      Held, that the court properly denied a motion then made by the defendant to be discharged; that upon its being established that he had practiced medicine it was incumbent upon him, in order to avoid the penalty imposed for the alleged unlawful act, to show that he had a license or diploma.
    Upon the trial the defendant offered to prove that he had studied medicine in Philadelphia, at the University of Medicine and Surgery, and had graduated there and received a diploma, which had been burned. The court refused to receive the evidence unless it was first shown that the said university was a chartered school, having authority to issue diplomas.

      Held, no error. (Landon, J., dissenting.)
    The defendant testified that he had been examined by the Kansas Eclectic Medical Examining Board, and produced a diploma issued to him by it pursuant to a law of the State of Kansas. The diploma was in due form and complied with the requirements of the said law, which was put in evidence. The prosecution then offered in evidence a volume of the Kansas reports and read therefrom a case in which it was decided that the law referred to was unconstitutional and void. The court thereupon ruled, as a matter of law, that the diploma was void and afforded the defendant no defense.

      Held, that this was error; that even if the report of the case was admissible in evidence it did not conclusively establish, as against the defendant, that the act was unconstitutional, but could only be considered by the court, in connection with other evidence, in determining for itself the invalidity of the said act.
    Appeal by tbe defendant from a judgment of conviction, entered in the Warren County Court of Sessions, on a trial on an indictment charging him with “ practicing medicine and surgery in this State without being authorized so to do by a license or diploma from some chartered school, State board of medical examiners or medical society.”
    The indictment was found under section 356 of the Penal Code. Upon the trial the defendant testified, among other things, that he studied medicine at Philadelphia at the University of Medicine and Surgery, and graduated there and received a diploma, which was burned in the great fire in Chicago. The court refused to permit evidence to be given of this paper, or diploma, unless defendant first gave proof that the institution was a chartered school.

      H. A. Howard, district attorney, for the people, respondents.

      J. M. Whitmm., for the appellant.
   Bockes, J.:

The defendant was convicted on indictment at the Warren County Sessions, of the offense of practicing medicine without being authorized so to do “ by a license or diploma from some chartered school, State board of medical examiners, or medical society.” (Penal Code, § 356; 'see, also, Laws of 1874, chap. 436, § 3.)

On the trial the defendant admitted the fact that he had practiced medicine at the time and place charged in the indictment; whereupon the district attorney rested the case. The defendant then moved for his discharge, on the ground that mere proof that he practiced medicine was insufficient to convict him of so practicing without a license. The court denied the motion. To practice medicine without a license or diploma, issued or granted to the practitioner, as the law requires, is declared a misdemeanor and is punishable as such. It being then proved or admitted that the defendant practiced medicine it was incumbent on him, in order to avoid the penalty imposed for the alleged unlawful act, to show that he did so under the protection of a license or diploma. The burden of proof was on him to show his justification. It has been so decided in many instances in analogous eases where persons were ■charged with selling liquor without license so to do. (Potter v. Deyo, 19 Wend., 361; The People v. Quant, 2 Park. C. R., 410; The Mayor v. Mason, 1 Abb., 344.) The motion to discharge the defendant on the ground urged by him was properly denied.

We are also of the opinion that the paper shown to have been accidently burned, called by the defendant a diploma, and By him said to have been issued from the University of Medicine and Surgery in Philadelphia, was not well proved, if for no other reason than because not shown to have been issued from a chartered school, State board of medical examiners, or medical society having authority to issue it.

This brings us to consider the more important question presented on the apppal. The defendant, who gave evidence in his own behalf, testified that he was examined in 1879, before the Eclectic Board of Medical Examiners of the State of Kansas, meaning undoubtedly the Kansas Eclectic Medical Examining Board; and that after such examination he received from that board a diploma which he produced. It purported to have been issued by the Kansas Eclectic Medical Examining Board, pursuant to a law of that State, entitled “An act to regulate the practice of medicine and surgery in the State of Kansas,” passed and approved February 27, 1879. It bore the signatures of the board of examiners;had its seal impressed thereon, and pronounced the defendant qualified and entitled to practice medicine, surgery and obstetrics. It seems to have been in due form and was issued in conformity with the law of Kansas, above cited, which law was put in evidence. In this state of the case the defendant had shown a good defense He had shown that his practice of medicine was authorized, inasmuch as he held a diploma from a State board of medical examiners, that is, a board of medical examiners having authority to act in the matter by virtue of a State law.

To meet and answer this condition of the case the district attorney offered in evidence volume 24 of Kansas Beports, and proposed to read therefrom, at page 686, the report of a case entitled, The State ex rel. the Attorney General v. Stormont and others, decided in the Supreme Court of that State, wherein it was held, as reported,, that the act of Febimary 27, 1879, above x’eferred to, was unconstitutional and void. The evidence was admitted against objection, and the court thereupon ruled as matter of law that the defendant was without defense, and so instructed the jury. In this ruling we are of the opinion that the learned court was in error. The evidence was admitted as proof of a fact, to wit, that a law of the State of Kansas was unconstitutional and void. It was ruled that the evidence put in proved the fact, and operated as an estoppel upon the defendant, that is, that of itself it absolutely barred his defense» The Court of Sessions did. not, for itself, assume to determine that the law was unconstitutional, indeed could not, for the constitution of the State was not before the court for its consideration. The evidence was accepted and was acted upon as conclusive proof of the fact decided in the reported case. It was introduced as record evidence of a fact, and was accepted as such. Of course it was not a judicial record, importing absolute verity, yet it was accepted and acted upon as conclusive of the case against the defendant. Nor could this be for another reason, the defendant was not a party to the proceeding, hence could not be concluded by the adjudication therein declared. Had this trial been in Kansas, the reported case might have been read as an authority on the point to be decided; but there, even, it would not be admitted as evidence of a fact in the case necessary to be established by proof. Now, had the Court of Sessions assumed for itself to determine the question presented to it as one of law on an examination of the Constitution, and the law 'challenged as in violation of it, the case would be quite different. The error of the court consisted in admitting proof of what the law was on a given state of facts, and adopting that proof as conclusive in that regard rather than itself determining it.

But let us go a little further in the examination of the case before us. It is the common law, as recognized and acted upon by courts in other States, that may be proved by parol evidence in our ■own, when necessary to be established as a fact therein, and the Code of Civil Procedure now gives the rule in that regard. So it is declared that the unwritten or common law of another State * * * may be proved as a fact by oral evidence; ” and further, that the reports of cases adjudged in the courts thereof must be admitted as presumptive evidence of the fact. (Code of Civil Pro., § 942.) But here the common law, as recognized and adhered to in the Kansas conrts, was not in question at all; the question was in regard to a statute of that State. Such statute could not be proved by parol, and it could be here assailed and impeached only in the same way and by similar proof as could be a statute of our own State.

If it be suggested that the court should have held the Kansas statute unconstitutional, of its own judgment, and therefore that right has prevailed, notwithstanding the erroneous ruling adverted to, the answer is that it did not do so; and, besides, if the reported case be stricken from the record there is no basis whatever upon any facts before the court for such ruling.

It is now urged that the certificate or diploma produced by the defendant, under which he sought to justify his right to practice, was not indorsed or recorded as the law .required; but the indictmei t does not charge a. violation of law in that regard. The defendant can be called upon only to answer the charge made there against him. Our conclusions above stated necessitate a reversal of the conviction and judgment in this case.

Conviction and judgment reversed, new trial granted, and record remanded to Warren County Sessions.

Learned, P. J., concurred.

Landon, J.:

I concur in reversal upon the grounds assigned by my brother Bocees. I wish to add, with respect to the Philadelphia certificate, that the defendant having first proved it, if it appeared to be regular on its face, the burden of impeaching it then rested with the people.

The defendant, upon grounds of convenience and necessity, is in the first instance required to prove his license or stand convicted of having none; but having complied with this requirement and removed the difficulty which lies at the foundation of this exceptional rule, he is obliged to go no further than the necessity requires.

Judgment and conviction reversed, new trial granted.


author: Fish, J.: Learned, P. J.

text:
       In the Matter of WILLIAM H. SNYDER, as Executor, etc., of JABEZ OLMSTEAD, Deceased.

      Contempt — the failure of an executor to pay over money as required by the terms of a decree, is punishable as a contempt — Code of Civil Procedure, secs. 2552, 2555.

    Where, upon the judicial settlement of the accounts of an executor, in a Surrogate’s Court, a decree is entered adjudging that a balance of the moneys, actually received by him, still remains in his hands, and directing him to pay the same to different persons therein named, the failure of the executor to pay the same, after demand therefor has been duly made, is a contempt of the court, within the meaning of section 3355 of the ( ode of Civil Procedure, and is punishable as such by the imposition of a fine equal in amount to the sum adjudged to be in the executor’s hands, and by his commitment to a jail until the same shall be paid.
    The fact that upon the return day the executor files his own affidavit in the Surrogate’s Court and therein alleges that he is unable to comply with the terms of the decree, and that he has no means wherewith to pay the amount claimed, furnishes no reason for denying the application for his commitment. (Learned, P. J., dissenting.)
    Appeal' from an order of tbe Surrogate’s Court of Rensselaer county, adjudging the appellant, an executor, to be in contempt for refusing and neglecting to pay over certain sums of money, as prescribed by a decree made upon the settlement of his accounts as executor, and imposing a fine upon him as a punishment for such contempt, and committing him to the county jail until the same should be paid.

      James Lansing, for tne appellant William H. Snyder.

      J. A. Gvpperl/y, for the respondents.

      In this and the following cases in this department, decisions handed down December 27, 1884.

   Fish, J.:

The appellant was executor of Jabez Olmstead, deceased, and, as such, received the moneys and property belonging to the deceased and assumed the general burden of the trust. In due time he was called to account and rendered an account before the Surrogate’s Court; and the Surrogate’s Court, in such proceedings, on the 29th March, 1882, made a decree in which it charged the appellant, as such executor, with divers moneys received by him as such, credited him with divers sums properly paid and expended, and adjudged; that there remained a balance in his hands, for which he was' accountable, of $2,915./70, which sum the decree directed the appellant to pay to divers persons therein named. The decree was soon thereafter properly served on appellant and a demand made upon him for payment of several of the sums decreed to be paid. He refused to pay and has continued since to neglect and refuse payment. A transcript of said decree was filed in the office of the clerk' of Rensselaer county, being the county where appellant resided, and the same was docketed and execution issued to the sheriff against the property of appellant, which has since been returned wholly unsatisfied. Thereupon application was made to the surrogate of Rensselaer county for an order that appellant show cause before the Surrogate’s Court, on a day named, why he should not bo punished for contempt in disobeying the directions of the decree in refusing to pay the money. The affidavit on which the order to show cause was granted, states, in terms, that appellant willfully neglects to obey said order and decree.” On the return day of said order the appellant appeared and filed an affidavit stating, in substance, that his only reason for not complying with said decree was his inability to procure the money with which to make payment; and alleging that he has made diligent effort to obtain the money, but has failed; that if he had the means to pay with he would promptly pay, and pleads the impaired health of both himself and wife, and his necessary duty to her as her medical adviser, against the impending action of the Surrogate’s Court. The appellant also, in an additional affidavit, undertakes to explain why he is unable to pay, which is to the effect that the funds and money, which came into his hands as such executor, were lost by him in his private business in the year 1876. The appellant offered no proofs on the subject, relying alone upon his own uncorroborated affidavits to acquit himself of the charge of willful neglect to pay. Affidavits were also filed on the part of the relators, which tend to show that subsequent to the time when appellant claims to have lost the trust fund, and ou or about January 14, 1878, the appellant, through Emily S. Willis, his daughter, who served as the conduit, conveyed to his wife real estate of the value of over $15,000 for a consideration expressed of $3,800; that said real estate covered the business stand where appellant had for a long time been doing business in his own name, and where he has continued in possession, ostensibly carrying on the business the same as before said transfer, and under circumstances tending to show that the transfer of the real estate was a cover intended to protect the same against his creditors.

To this the appellant filed a further affidavit, in which he does not deny the transfer of the property to his wife, but insists that he is in possession as employe and servant of his wife, Catharine Snyder, and that said Catharine Snyder resides upon said premises and has charge of and carries on the business in person, and has done so since she purchased the same in 1878; and by his said addi-’ tional affidavit, generally denies that the transfer to his wife was a fraud or cover, but alleges that he was indebted to his wife in the ■sum of '$3,300, to the Troy Savings Bank $2,500, which was a mortgage on the property, and $1,721.28 to one Henry Snyder, which his wife was to secure, making the total consideration of said transfer the sum of $7,521.28.

The appellant offered no proofs of the indebtedness to his wife or to Henry Snyder, nor any proof as to the value of the real estate conveyed to his wife, but chose to rely solely on his own affidavit. Thereupon, the surrogate made the order which is the subject of this appeal.

The said order, after reciting, among other things, that it appeared before him that the appellant willfully neglected to obey said decree or to pay the sum decreed to be paid, and that said William H. Snyder, executor as aforesaid, had committed the contempt with which he was charged, and this court now adjudging him to be guilty of the misconduct alleged, and that such misconduct was calculated to and did defeat, impair and impede the rights and remedies,” etc., provided that a fine of $1,525.20 be imposed upon "the appellant, and that he pay the same, together with the sum of twenty-five dollars costs, and stand committed to jail until he shall have paid said fine, etc., the sum of the fine being just the aggregate of the sums which he neglected to pay as in the decree directed. Hpon this state of facts I think the Surrogate’s Court was fully justified in making the order committing the appellant for contempt. 'The surrogate was not bound to accept the uncorroborated statements of the defaulting executor to the effest that he had no money at his command, or as to what had become of the trust funds. The fact that the funds came into his hands is undisputed. He is presumed to have them in his possession or under his control, and that presumption will continue until he satisfies the court that by some cause over which he has no control he has become unable to produce them or replace them.

The Code (§ 2552) makes a decree of the surrogate, directing •payment by an executor to a person interested in the estate, conclu.since evidence that there are sufficient assets in his hands to satisfy the sum directed to be paid. (And see Seaman v. Duryea, 11 N. Y., 330, opinion of court.) The onus is upon him to show why it is that he cannot obey the decree. "When a trustee proposes to exonerate himself from the performance of a plain duty, he ought at least to make a plain showing of the reason why. Such is not the case here. The affidavits of appellant in answer to the order to show cause are vague and uncertain.

The first in order, while manifesting great respect for the court, and a willingness to make payment, simply protests his inability to pay. It states no facts showing how he came to the situation, or what became of his property; but simply that he has none. In the second affidavit he states that the money which came to his hands as executor wa.s lost in 1876 by bad results in his private business, without giving any detail of facts that would admit of any other person making a successful inquiry into the business to see how far he told the truth.

In the fifst two affidavits he lays stress upon the feeble health of his wife, who is so badly off that it would probably shorten her life if deprived of his society and medical attendance. Then, when an explanation seems pressing, in answer to affidavits filed by relators, his wife at once becomes capable of active personal attention to the grocery business; and his affidavit states “ that his wife has charge of, and carries on, the business in person, and has done so since she purchased the same in 1878.” The affidavit of the wife is not produced in corroboration of his statement, not even to corroborate the bona fides of the real estate transaction with her. It may be assumed that his story is incapable of corroboration by any living witness. Thus standing alone, and upon such unsatisfactory affidavits, the executor, confessing to a criminal misappropriation of the trust fund, his protest of inability to pay is entitled to but little consideration.

There is nothing in this case which entitles the appellant to a charitable construction, or to any leanings in his favor. On the contrary, his conduct in relation to the estate, as confessed by him, is grossly reprehensible, and calls for the most stringent discipline on the part of the courts.

The appellant tells us that the reason why he cannot pay is because he committed the flagrant crime of putting the trust funds in his private business, and so lost them; and thus, finding himself threatened with insolvency, instead of reimbursing the sacred fund out of the remainder of his property, concluded to let the whole loss fall upon the trust estate, and at once transferred all the residue of his property to his daughter and wife to secure an alleged indebtedness to his wife,'thus putting it out of his power to restore the moneys stolen from the trust.

The facts stated admit of a strong suspicion (to put it no stronger) that the conveyance of his property to Ms wife was a mere cover to hinder his creditors, and to put • it beyond the reach of the next of kin to the Ohnstead' estate. There has been no ostensible change in possession, he remaining in apparent control and conducting the business the same as before. There is no proof of any indebtedness to his wife, except his affidavit, and that stating no facts as to how the debt accrued, leaving the confidential dealings between himself and wife a mystery to his creditors. All this throws discredit upon the transaction. It is not necessary, however, at this time to pass upon that question, except so far as to say that he leaves the matter of his inability to pay doubtful and unsatisfactory.

The office of the executor is a sacred trust and calls for integrity of purpose and a strict observance of official duty. He who accepts such a trust, and then deliberately misappropriates the funds of the estate, cannot complain when the law and the courts lay a heavy hand upon Mm. It is a kind of robbery to which the courts ought not to lend even tacit encouragement, but rather 'administer emphatic rebuke. No language of condemnation is too strong for the ease. The statute, at a late day, has made it a crime, and the courts should not be tardy in the exercise of every lawful power to save a trust estate from the devastation of an executor.

Prior to the enactment of the present Code of Civil Procedure, there was considerable difficulty in determining what were the powers of the Surrogate’s Court in matters of this kind, and as to the manner of executing its power. It was held In Matter of Watson v. Nelson (69 N. Y., 537), that disobedience to a surrogate’s decree directing the payment of money generally, not out of a specific fund, to the persons entitled, was not a contempt for which a fine could be imposed upon the executor and he be committed to close custody as for criminal contempt.

That decision, was made under the provisions of the Revised Statutes as then existing, which then only authorized a Surrogate’s Court to enforce its decrees for the payment of money by attachment. No other ground was assigned by the court. Upon arrest and detention, by virtue of an attachment, he would be entitled to jail liberties., etc.; whereas, by an order committing him for. contempt, he could be kept in close custody. And so it was hold in that case, that under the statute, which is cited in the opinion of the court, the surrogate had exceeded his powers. The court, in deciding the case, lay stress upon the fact that the order or decree in that case was only to pay a sum generally as executor, not specifying a particular fund, evidently meaning and intending the counter proposition that if directed to pay out of a particular fund, then an order committing the executor for contempt in neglecting to pay would be sustained. And the court refer to and approve the decision in Seaman v. Duryea (11 N. Y., 324), where an outgoing guardian was proceeded against by attachment, followed by an order committing him for contempt for disobeying the decree of the surrogate in not paying to his 'successor the balance of estate found in his hands on final accounting.

So it is fairly inferable therefrom, that if it had appeared in the case in Watson v. Nelson, that the sums directed to be paid by the decree had been the sums fou/nd to be in the hands of the executor as a balance of moneys received by him, sucli a designation of fund would have been, within the meaning of the court, in speaking of a particular fund, under the control of the executor. For, as stated in Seaman v. Duryea, “ in contemplation of law, the trust fund at all times remains in specie or invested as required by law, and the money or the proper securities are or should be in a situation to be delivered over at once.” And, hence, an order or decree directing this to be done is not like an ordinary judgment for a given amount in an action at law.

And in Baucus v. Stover (89 N. Y., 1-5), the question arose, incidentally, whether where an executor was charged with his own debt due to the estate, the same as so much money on hand, although the executor was at the time insolvent and wholly unable to pay, he could be punished for contempt for not paying. The court, in an elaborate opinion, held that although the debt may be treated as money in his hands for the purpose of administration, yet it would not for all purposes stand on the same footing as if he had actually received so much money. If the executor was wholly unable to pay the money, in pursuance of an order or decree of the surrogate, on account of his insolvency, he should not be attached or punished for contempt, as he could be if the money had actually been received from some other debtor. Although the question of punishment for contempt was not necessarily decided in that case, yet it was clearly the. prevailing opinion of the court- that where an executor had actually received money belonging to the estate, he could be proceeded against by attachment and punished for contempt in not complying with an order of the surrogate to pay over the money; that it was only in such cases as where he had not actually received the money, but was made liable for some other cause and wholly unable to pay, that he might be excused.

All the cases so far cited arose under the provisions of the Revised Statutes, and before the present Code became a law.

But whatever of uncertainty existed as to the power of a Surrogate’s Court on this subject before, is all made plain by the sections of the Code before cited.

Section 2552 makes a decree of a Surrogate’s Court, directing the payment of money by an executor to any person interested in ,the estate or fund, conclusive evidence that there are sufficient assets in his hands to satisfy the sum which the decree directs him to pay.

Section 2555 is equally emphatic in its provisions. By that section, a decree of a Surrogate’s Court, directing the payment of money, may be enforced by serving a certified copy on the executor, and the willful neglect or refusal to obey it, by punishing him for a contempt of court, in the following cases :

Subdivision 3 — Where an execution against the executor has been returned unsatisfied ; and further,

Subdivision é — Where the delinquent is an executor, and the decree relates to the fund or estate, the surrogate may so enforce the decree either with or without the return of the execution. So that, as the law now stands, the proceeding by attachment has been superseded, and the power to proceed by order resides in the surrogate. In the case in hand I think his power has been wisely and justly exercised.

These sections took effect on the 1st September, 1880 (see sec. 3317 of Code), so that all proceedings in all cases coming into the courts after that date came within the provisions of those sections. A remedial statute, not affecting the vested rights of parties, will be held to apply to all future proceedings, even though the trust was created (as in this ease) before the law was passed; so that these provisions are applicable to any that arise to enforce any remedy. (In re Dissosway, 91 N. Y., 235.)

The whole matter rests with the surrogate of Rensselaer county. It will be within his power to modify the order under which the appellant is committed, if a case shall be made that addresses itself to his judgment, and that calls for such action.

Let the order be affirmed.

London, J., concurred.

Learned, P. J.

(dissenting) :

I am unable to agree with the views taken by my brethren.

After the decree which charged the executor with a certain balance and directed its payment, execution was issued against his property and returned unsatisfied. Demand for payment was made and an order granted to show cause why he should not be punished. On the return of that order the executor showed his actual inability to pay; his insolvency and his want of any property whatever. These facts were really not disputed. The parties entitled to receive payment showed, by affidavit, that in 1878 the executor transferred property, which they claim was in fraud of creditors. The executor in response made an affidavit that the transfer was in consideration of valid debts and was not in excess of such debts. He also showed that when he received the money of the estate and used it in his business (about 1876), he believed the money would be safe and he would be able to produce it when called uj>on, but that he had, since 'that time, suffered losses in his business. As the petitioner did not dispute the fact of the executor’s actual insolvency and inability to pay at the present time, those facts must be taken as conceded. Undoubtedly the executor did wrong in using the money of the estate in his business. But it is not for that act that he is adjudged in contempt. So, if the transfer of his property was to pay valid debts, it was a lawful transaction. If, on the other hand, it was made to defraud creditors, tbe executor cannot set it aside and get tbe property back. , In any case he cannot be punished as for a contempt, because he transferred his own property, fraudulently or otherwise. Laying aside the cases where a person may be fined for misconduct in court and the like, I understand that the process of punishment for contempt is intended to compel a person to do that which he can do. It is not proper to punish him for not doing that which he cannot do.' This is the doctrine of Watson v. Nelson (69 N. Y., 536), and it is illustrated by the case of Baucus v. Stover (89 N. Y., 1). If we take the Code (§ 2555), the language is, “ refuses or willfully neglects to obey.” One does not refuse or willfully neglect to do that which he cannot do. If the executor had funds in his hands, or if he was in possession of securities and refused to deliver the securities or pay the funds, the case would be different. But in this case he is fined to the whole amount of the balance due from him, and is committed to jail until he shall pay this fine and costs and fees; that is to say, he -is to be imprisoned for life, unless (as is probably hoped), the sympathy of his friends may induce them to raise the money. I do not think such is the law.

But it is said that by the Code (§ 2552), the decree of settlement is conclusive evidence that there are sufficient assets in the hands of the executor. This cannot mean that it is conclusive as to his actual ability to pay. If this were so, then the surrogate could never at any future time, relieve this executor from imprisonment, because there would be a conclusive decree that the executor was able to pay. This difficulty was seen in Baucus v. Stover, where it was held that while an executor should be charged in his accounting with a debt owing by him to the deceased, yet .that he should not be liable therefor as if it were money actually in his hands. Yet the Revised Statutes use language which, if unqualified, would make the executor chargeable as for so much money received. I think, therefore, that section 2552 must be understood to mean that the decree is conclusive as to the amount with which the executor is chargeable; and that it does not mean that it is conclusive as to his actual possession of the funds. (Compare this section with 3 R. S. [5th ed.], p. 204, of which it seems to be a re-enactment.)

It is said that, as the executor once received these funds, he is presumed to have them still. But a man is not to be imprisoned for life upon a presumption. That he is chargeable with the funds is true. It is true, also, that he ought to pay them to the petitioners. But when he has no means or power to pay, he ought not to be punished for not paying.

It may be said that the surrogate may hereafter discharge the executor. But what ground can the executor present at a future day for his discharge, which he does not now present ? If inability to comply with the decree will be a reason for the discharge a year from this time, then it is a reason now why he should not be imprisoned, otherwise the power of commitment in such cases is at the mere will of the court as to its continuance. The executor has misused trust funds. That may make him liable under chapter 208, Laws 1877. It may make him liable to an execution against the person. But I do not believe that such an act, or the inability to pay caused thereby, makes him liable to perpetual imprisonment, or to imprisonment at the future discretion of the Surrogate’s Court.

I think the order should be reversed.

Order affirmed, with costs.


author: Learned, P. J.:

text:
    CATHARINE LUDWIG, Respondent, v. LAWRENCE GLAESSEL, Appellant.

      Civil damage act —1873, chap. 646 — right of infant children to assign their claim for damages to them' motlwr — evidence.

    In an action, brought under the civil damage act, to recover damages caused by tbe defendant having sold liquor to the plaintiff’s husband, the defendant was compelled, upon his cross-examination, to testify that he had shortly after the commencement of the action transferred all his property to his wife.

      Held, that the court erred in admitting the evidence.
    Where death has been occasioned by the sale to a man of intoxicating liquors,' the guardian of his infant children may assign their claim to recover damages, under the Civil Damage Act, to their mother, who may maintain an action under the said Act to recover all the damages sustained.

      ~' Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    The plaintiff is the widow of one Adolph Ludwig. Her husband fell into a canal while intoxicated and was drowned. He left four infant children, for whom a guardian was appointed by the surrogate. The guardian, with the approval of the surrogate, thereafter assigned all the childrens’ right of action to them mother, the plaintiff.

      George W. Smith, for the appellant.

      J. E. Dewey, for the respondent.
   Learned, P. J.:

This is an action under the “ civil damage ” act. On the trial the defendant was a witness in his own behalf. Hpon cross-éxamination he was asked: Shortly after the commencement of this action did you put all your property in the hands of your wife ? ” The question was objected to as immaterial and improper. The objection was overruled and the defendant answered, “ I had to.” Further questions on this same point were put and allowed against his objection.

The plaintiff urges that as defendant would be liable under the act if he owned the building, this testimony was evidence of such ownership. But the plaintiff had on cross-examination proved that defendant owned the building. Although the ground of action in the com- ■ plaint is the sale of the liquor to the deceased husband of plaintiff and not the ownership of the building where the sale was made. There was no propriety then in proving that the defendant had put all his property in the hands of his wife shortly after the commencement of the action. This /was not material to the issue and was likely to prejudice the jury as a kind of admission of defendant’s liability. The conveyance to the wife might be fraudulent, or might be valid, as against creditors. But the defendant could not expect to try that question of fraud in this action and could not be prepared for that purpose.

On the question whether the claims of the children under the “ civil damage ” act might be assigned to the plaintiff, the mother, we may refer to the case of Moriarty v. Bartlett, recently decided in this department. We there held that the executor of the defendant, in an action under the “ civil damage ” act might be substituted on the death of the defendant.

The views there taken seem, by analogy, to hold that the claims are in their nature assignable. How far the policy of the act might be held to forbid the assignment to a stranger, we need not consider. The assignment in this case was to the mother, on whom the duty of supporting the children had devolved by the father’s death.

. For the error in the admission of evidence there should be a new trial, costs to abide event.

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

Present — Learned, P. J., Bookes and Landon, JJ.

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

         Reported, ante, page 272.


author: Landon, J.:

text:
    JEREMIAH HATCH and ELIZABETH LAING, as Executors of THOMAS LAING, Deceased, Respondents, v. XENOPHON W. COLLINS, Appellant.

      Oom/pounding a felony — when a contract made to induce creditors not to prosecute is not illegal.

    )ne Moncrief transferred certain articles of personal property belonging to Mm and which were situated in tbe State of Vermont, to one Laing, bis father-in-law, -in consideration of tbe promise of tbe latter to pay bis, Moncrief’s debts. The amount of tbe debts exceeded tbe value of tbe property. Some of tbe debts which Laing agreed to pay were represented by notes which bad been forged by Moncrief, and Laing was induced to make the contract by feelings of compassion and kindness for him, and in tbe hope that if tbe notes were paid a prosecution for tbe crime would be less likely to take place. There was no agreement that the notes should be destroyed or any evidence withheld, nor that any creditor should refrain from prosecuting him. No prosecution had been commenced or threatened:

      .Meld, that the creditors of Moncrief could not impeach the validity of the transfer upon the ground that it was void, as made with intent to compound a felony

      Marbury v. Brooks (7 Wheat., 5561; Wcurd v. Allen (2 Mete., 53), followed; Laing v. McCall (50 Vt., 658), not followed.
    Appeal from a judgment in favor of the plaintiffs, entered upon the report of a referee. The action was brought to recover damages for the conversion of one evaporator and 400 sap buckets. The plaintiffs claimed title thereto under a bill of sale thereof from William T. Moncrief to their testator. The defendant sought to justify the taking and sale of the property under an attachment against said Moncrief.

      John .H. McFarla/nd, for the appellant.

      Frcmk H. Graham, for the respondents.
   Landon, J.:

The verbal agreement on the 18th day of June, 1876, between Moncrief and the plaintiffs’ testator for the sale of. the personal property in question was not effectual to pass title to the property. The property exceeded fifty dollars in value, no writing was made, no delivery, no payment at the time. (Hunter v. Wetsell, 57 N. Y., 375; S. C. 84 id., 549.) It was a mere verbal proposition and acceptance thereof, to be thereafter executed, if neither party withdrew, but not then executed nor closed. Payment on the subsequent day, by the plaintiffs’ testator to third parties, pursuant to the previous arrangement, but in the absence of the vendor and without his then concurrence, upon the basis of the arrangement of the previous day, did not make the sale effectual, for non eonstat that he had not changed his mind; and also .payment on a subsequent day is not payment at the time of making the contact. (Cases above cited.)

This verbal contact was made in the State of New York, and if invalid by the lex loci contractus, it is invalid everywhere. (2 Kent, 458; Hyde v. Goodnow, 3 N. Y., 266.) But on June twenty-first- Moncrief executed and delivered to the plaintiffs’ testator a bill of sale of the property. This was in the town of Bupert, in the State of Yermont. The bill of sale was filed the next day in the town clerk’s ofS.ce of said town. The personal property in question consisted of utensils and apparatus for the manufacture of maple sugar,” and was kept on a farm belonging to plaintiffs’ testator in Bupert, Yermont, which farm was occupied by Moncrief, who was his son-in-law. Moncrief, so far as he was able to do so, delivered possession of the property to the plaintiffs’ testator on the twenty-first day of June. But the property at that time was held by the sheriff of the county of Bennington, in the State of Yermont, under certain attachments against Moncrief, and although the property remained upon Moncrief’s farm, such proceedings had been taken under the attachments as enabled the sheriff, in the language of the Yermont statute and by virtue ^hereof, “ as effectually to hold such property against all subsequent sales, attachments or executions, as if such property had actually been removed and taken into the possession of such officer.”

The title acquired by the plaintiffs’ testator, on the twenty-first day of June, by virtue of the bill of sale, was Moncrief’s title subject to the existing liens under the attachments. If the property had been disposed of under these attachments, the plaintiffs’ testator would have had nothing remaining.

The defendant Collins obtained his attachment under which he justifies and placed the same in the sheriff’s hands, on the twenty-second day of June. If the foregoing views are correct, Moncrief’sinterest in the property had already passed to the plaintiff’s testator. But the defendant says the property, being in the hands of the sheriff, was in custodia legis; that such custody was so exclusive as to preclude the possibility of Moncrief making any transfer thereof to the plaintiff’s testator, and, therefore, when the defendant’s attachment came to the sheriff’s hands, it became a .lien upon the property subject only to the prior attachments, and without possibility of detriment from any intervening right under the bill of sale.

Tt was proved, however, as a fact that, by the law of Yermont, when property is so attached and then sold by the attachment debtor, that notice of such sale to the sheriff holding the attachment, of the claim of the vendee, is to the extent of his interest equivalent to a physical change of possession, the latter not being attainable under the circumstances. (Marshall v. Town, 28 Vt., 14; Wooley v. Edson, 85 id., 214.) Such notice was given to the ■sheriff before the defendant’s attachment was levied.

According to the law of the State of New York, notwithstanding a levy, the judgment debtor remains owner and may sell the prop- ■ erty subject to the execution lien. (Mumper v. Rushmore, 79 N. Y., 19.) The Yermont statute evidently favors the same rule. The title of Laing was superior to the lien of the defendant’s attachment under which the property was sold.

The defendant however claims that Laing acquired title by virtue ■of a contract entered into with Moncrief for the purpose of stifling a criminal prosecution against Moncrief, and therefore his title was void against bona fide creditors of Moncrief. The referee refused to find that there was any legal evidence that any of the notes paid by Laing, in consideration of the bill of sale to him, were forged. We have examined the case and there was evidence sufficient to require the finding that some of the notes which Laing, in consideration of the bill of sale to him, agreed to pay and did pay were forged, and that the inducement which led him to make the contract was a feeling of compassion and kindness for Moncrief, and especially for Laing’s daughter, who was Moncrief’s wife, and the hope that if the notes were paid a prosecution for the crime would be less likely to take place, but there was no agreement that Laing or any creditor should refrain from prosecution, or that the notes should be destroyed, or any evidence withheld. No prosecution had been commenced or threatened. The amount paid by Laing exceeded the value of the property transferred by the bill of sale, and no motive of gain induced him to enter into the contract. In Ward v. Allen (2 Metcalf, 53), it was held that in order to make a promise void on the ground that the consideration thereof was the stifling of a criminal prosecution, it is necessary that the promise should be made for gain, and not merely from motives of kindness and compassion. In Laing v. McCall (50 Vt., 658), a case arising in Vermont out of this transaction, it was held that the jury ought to have been instructed that if any part of the inducement moving the plaintiff to the execution of the contract was, that, by taking up said notes Moncrief would be less liable to be arrested for forgery, then the contract was void as to bona fide creditors of Moncrief. The court rested the decision upon the proposition “ that the intent to do a criminal act and to carry out an illegal purpose, vitiates the whole transaction.” The proposition is undoubtedly correct and the contract void if there was an intent to accomplish an illegal act by means of the transaction. The case is much like Marbury v. Brooks (7 Wheat., 556; again reported 11 id., 78). In that case one Fitzhugh had forged many notes. Marbury was his father-in-law. Fitzhugh had forged Marbury’s name upon several of the notes. The notes were about due and disclosure imminent and prosecution probable. Fitzhugh executed an assignment to Marbury of all bis property in trust for his creditors, preferring tbe payment of these forged notes. The assigned property being insufficient to pay Fitzhugh’s general creditors in addition to the forged notes, the plaintiffs, being such creditors, attached the property in the hands of Marbury, the assignee. The evidence tended to show that the object of the assignment on the part of both the assignor and assignee, was to provide for the forged notes, to the end that Fitzhugh would therefore be less liable to be punished, and in the hope that he would not; hut there was no agreement of that kind with any of the holders of the notes, and they were not parties to the transaction, otherwise than by being benefited by it in receiving their pay. The' assignment was upheld against the attaching creditors. Marshall, C. 1., in delivering the opinion of the court (7 Wheat., 575), said: “ To advance moiiey for a son-in-law to repair the frauds he had committed, even with the hope of concealing the perpetration of them, is not, we think, an offense which may not be excused; nor can a security taken for the repayment of money so advanced be deemed fraudulent. If the notes were to be taken, upon condition that the holders would forbear to prosecute the criminal, or if the repayment of the money advanced were to depend upon his escape from prosecution, the validity of the contract might well be questioned. But the undertaking of Marbury was unconditional, as was the security for the repayment of the money advanced. * * * It may be the duty of a citizen to accuse every offender and to proclaim every offense which comes to his knowledge; hut the law which would punish him in every case for not performing this duty is too harsh for man.”

In the case under review the plaintiff’s testator Deeame the assignee of Moncrief’s property in consideration of his verbal promise to pay his debts. The promise was unconditional and inured to the benefit of every creditor, the transfer was in like manner absolute and unconditional. Both acted solely upon the mero hope that by the payment of the notes prosecution would be arrested. The cases cited hold that they might lawfully so act, if they did nothing upon the express or implied condition that the prosecution should be suppressed, averted or trammelled. Laing, the assignee, did for Moncrief what the latter might lawfully have done for himself — apply his property to the payment of his debts. Moncrief might convert it into money and thus pay them. He did, by this transaction, in effect convert it into money and pay them; not by his own hand, but by tire hand of Laing. The fact that Laing knew why he wanted to pay his debts, and purchased his property to help him do it, only makes him a participator in the lawful, not in the unlawful, acts of Moncrief.

In 11 Wheaton, 88, the chief justice further remarks: “ It cannot be questioned that Fitzhugh might have sold his property and paid the proceeds to the banks, and that such sale and payment would not have been vitiated by any expectation he had formed that it might save him from a prosecution. Had he communicated this expectation to the purchaser, told him the use he intended to make of the money and that his motive for preferring the holders of these forged notes to other creditors, was the hope that, on receiving payment, they might be less active in the prosecution, would this have rendered the sale a nullity? We cannot conceive that such a communication would have affected the transaction.” We are cited to the case in Vermont not as evidence, but as authority. We are, therefore, at liberty to follow the authority of the cases in the United States Supreme Court and in Massachusetts as an exposh tion of the law which we think should govern the case.

It follows that the judgment should be affirmed.

Learned, P. J., and Bocees, J., concurred.

Judgment affirmed, with costs.


text:
    In the Matter of the Estate of HOLLIS W. COLE, Deceased.

      Statute of limitations — when it commences to run inf mor of a deposita/ry before am/y demand has been made by the owner.

    On May 14, 1867, Mrs. Oole conveyed a house and lot belonging to her separate estate to a Mrs. Saunders for the consideration of $7,000, of which $5,000 was then paid to her husband, in her presence and for her use and benefit. The husband died May 6, 1874, and letters testamentary were issued to Mrs. Cole on May 25, 1874. She had never demanded the money from her husband.

      JSeld, that the surrogate properly rejected a claim made by her for this money upon the judicial settlement of her accounts, upon the ground that it was barred by the statute of limitations.
    Appeal from the decree' of the surrogate of the county of Rensselaer.
    The appellant, Alida J. Oole, is the widow of Hoilis W. Oole, deceased, and executrix of his will. On the 14th day of May, 1867, Mrs. Oole conveyed to Mrs. Saunders a house and lot for the consideration of $7,000, of which $5,000, was then paid, as the surrogate finds, to her husband Hollis W. Oole, in her presence and for her use and benefit. The house and lot were the separate property of Mrs. Oole. Mrs. Oole never demanded the money of her husband. He died May 6, 1874, six years, eleven months and twenty-two days after he received the money. Letters testamentary were issued to Mrs. Oole, May 25, 1874. Hpon the judicial settlement of her accounts, November 9, 1882, she filed her claim to this money. The surrogate held that it was barred by the statute of limitations, and disallowed the claim.

      JR. 8. Rudspeth, for Alida J. Oole, executrix, appellant.

      JR. R. JMLoClelltm, for George W. Oole, respondent.
   Landon, J.:

We think the decree should be affirmed for the reason that the husband received the $5,000, as the surrogate has found, “ for the use and benefit ” of his wife, and therefore no demand was necessary, and hence the statute of limitations began to run from the day of the receipt of the money. (Stacy v. Graham, 4 Kern., 492; Howard v. France, 43 N. Y., 593.)

Tbe test of tbe necessity for a demand is wbetber it was then and there the legal duty of the husband to pay this money to his wife. It was her money and not his. He received it for her use and benefit and not for his own. He kept the money that was her due. If he could lawfully withhold it from her, it must be by virtue of some understanding or contract with her, and none is shown. Such contract or understanding exists in the case of a deposit of money with a bank, or a special deposit to be gratuitously kept and returned in specie.

In Boughton v. Flint (74 N. Y., 476), the husband offéred to pay the wife, but she requested him to keep the money until she asked for it, and therefore demand was necessary.

Decree of the surrogate affirmed, with costs.

LEARNED, P. J., and BooKes, J., concurred.

Decree affirmed, with costs against appellant.


author: LáNDON, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE ALBANY AND GREENBUSH BRIDGE COMPANY, Respondents, v. WILLIAM J. WEAVER and Others, THE BOARD OF ASSESSORS OF THE CITY OF ALBANY and Others, Appellants.

      Assessment — how the value of property used for business purposes is to be determined.

    Although in determining the value of real estate used for business purposes, for . the purposes of taxation, the cost of creating it may he considered, yet the more controlling consideration is its earning capacity.
    Appeal from an order of the Special Term correcting an assessment made in 1883 against the relator, and reducing it for over valuation from $225,000 to $110,000.
    The board of assessors first made the assessment at $280,000. The relator applied to the board pursuant to chapter 86, Laws of 1850, entitled “An act to' provide for the assessment and collection of taxes in the city of Albany,” as amended by chapter 284, Laws of 1881, to review the assessment and to reduce it to $110,000. The board of assessors took the proofs offered by the relator and reduced tbe assessment to $225,000, and refused to make any further reduction. A writ of certiorari was allowed upon tbe application of tbe relator under chapter 269, Laws of 1880, entitled “An act to provide for the review and correction of illegal, erroneous or unequal assessments.”
    The Special Term upon the hearing upon the return to the writ, which brought up the proofs taken before the assessors, further reduced the assessment to $110,000. The assessors appeal.

      S. W. Rosendale, for the appellants.

      JE, Oouni/rymcMi, for the respondents.
   LáNDON, J.:

The appellants claim that the writ of certiorari in this case could not be allowed under chapter 269, Laws of 1880, for the reason that since the passage of that act, the board of assessors of the city of Albany have been practically constituted a court, for the purpose of hearing and determining upon proofs adduced the application of any person who shall apply to them “ to reduce the value of his real and personal estate as set down in the assessment-roll.” (Chap, 284, Laws 1881, amending chap. 86, Laws of 1850, relating to the assessment and collection of taxes in the city of Albany.”) The amendment made to section nine of the act does indeed make it the duty of the board to examine the applicant under oath, and to receive such other supplementary evidence given under oath as the applicant may present, after which they shall fix the value at such sum as they shall deem just, that is, personal estate at its full value, and real estate “ at its full value as they would appraise the same in the payment of a just debt due from a solvent debtor.” This amendment substitutes the judgment of the board of assessors after hearing evidence in the matter of reducing the value of assessed property, for the amount fixed in the affidavit of the applicant.

Nevertheless, the assessors may still err in their judgment or in their action, and we find nothing in this amendment which ought to deprive the relator of the right to the review of an assessment which is “ illegal, erroneous or unequal,” given by chapter 269, Laws of 1880, in much broader terms than by the Code of Civil Procedure (§ 2140). (People ex rel. U. and D. R. R. Co. v. Smith, 24 Hun, 66.) The learned judge at Special Term had the duty cast upon him of reviewing the assessment upon, the evidence, [t was not simply the question whether the assessors had kept within their jurisdiction, or whether they had acted honestly and according to their best- judgment, but whether, their judgment was right. He examined the evidence with his usual care, and came to the conclusion that the assessors had erred. That, testing the value of the relator’s, property by the rule prescribed by .the statute, namely,. “ at its full'value as they would appraise the same in payment of a just debt due from a solvent debtor,” they had overvalued it.

The property in question is business property, created for the purpose of earning money. With respect to such property this court lias decided that in ascertaining its “ full value ” its cost may be considered, but the more controlling consideration is its earning capacity. (People ex rel. Ogdensburgh, etc., R. R. Co. v. Pond, 13 Abb. N. C., 1.) In the present case, the court considered its original cost, and what it would cost to recreate it at the present reduced prices of material and labor. It also considered the fact that its cost was enhanced to lit it for railroad service, an expected source of business .which was not secured, and which now seems to be permanently lost. -The bridge has been doing all the business offered, for a sufficient length of time, to afford a fair test of its earning capacity. Hnder such circumstances it seems to be just to give controlling weight to its earn-ing capacity. This the court did, and we are satisfied that a proper result was reached.

The order is affirmed, with costs of appeal against the appellants.

LeabNed, P. J., and Fish, J., concurred.

Order affirmed, with costs.


text:
    HORATIO G. ROBERTS, Appellant, v. THE OGDENSBURGH AND LAKE CHAMPLAIN RAILROAD COMPANY, Respondent.

      Marriage — statutes against remm'riage of divorced parties — construction of them.

    In 1861, one Taylor procured a divorce, in Massachusetts, from, his wife Ada-line, on account of her adultery. In January, 1862, the plaintiff married Adaline, in Massachusetts, and subsequently married her a second time in New Hampshire. ' The statutes of Massachusetts prohibited the remarriage of one divorced for adultery during the life of the other party. The statute of New Hampshire prohibited the marriage of parties “where either has a former wife or husband living:”

      Meld, the word “former” in the New'Hampshire statute imported that the relation of husband and wife continued to exist at the time of the second marriage and did not apply to cases in which the parties had been divorced.
    That the Massachusetts statute had no extra-territorial effect, and that the New Hampshire marriage being valid in New Hampshire, was valid in this State.
    Appeal from a judgment in favor of tbe defendant, entered upon an order dismissing tbe complaint, and from an order denying a motion for a new trial made upon tbe minutes of tbe justice before whom tbe action was tried. ■
    Tbe plaintiff brought this action to recover damages for tbe loss of services of bis wife and for expenses incurred, resulting from an injury sbe sustained in consequence of tbe alleged negligence of tbe defendant while she was being conveyed as a passenger upon tbe defendant’s railroad. At tbe close of tbe testimony upon tbe trial, at circuit, before a jury, the' court dismissed tbe complaint and directed a judgment for tbe defendant, upon tbe ground that. it appeared that tbe female injured was not tbe wife of tbe plaintiff.

      8. A. Kellogg, for tbe appellant.

      Louis Ha&brouch, for tbe respondent.
   Landon, J.:

The plaintiff was married to Adaline Smith, tbe female injured, January 1, 1862, at Lowell, Massachusetts. Prior thereto, and on November 26,1856, tbe said Adaline was married to John F. Taylor. Taylor is still living. Taylor obtained in due form of law a decree of divorce in the Supreme Judicial Court of Massachusetts, June 29, 1861, against the said Adaline and upon the ground of her adultery; the language of the decree being: “ It is, therefore, on the 29th day of June A. D. 1861, decreed by the court here, that the bond of matrimony heretofore entered into between the said J ohn F. Taylor and the said Adaline Taylor be, and for the crime of her adultery hereby is dissolved.” Some doubt being suggested as to the validity of the marriage between the plaintiff and Adaline, in the State of Massachusetts, they went to Nassau, in the State of New Hampshire, and were' there again married about March 1, 1862. In May following the plaintiff and Adaline came to the State of New York and there lived together as husband and wife until Adaline’s death, in 1883, shortly before this trial.

The marriage between the plaintiff and Adaline in the State of Massachusetts, January 1, 1862, was invalid, because the statutes of that State prohibited the guilty party, in case of divorce, from again marrying during the life of the other party. This proposition is not contested by the plaintiff. The important question is whether their subsequent marriage in the State of New Hampshire was valid or invalid. It is conceded that if valid by the law of that State, when celebrated there, it is valid everywhere. The statutes of the States of Massachusetts and of New Hampshire relative to marriage and divorce were read in evidence. No evidence was given of the construction put upon the New Hampshire statute by the courts of that State, and it does not appear from the cases cited from the reports of that State that the precise question here presented has received adjudication there.

The statutes of New Hampshire, in 1862, prohibited marriages within specified degrees of consanguinity and affinity. Section 1, of the chapter on divorces, reads as follows : All marriages prohibited by law, on account of the consanguinity or affinity of the parties, or where either has a former wife or husband living, knowing such wife or husband to be alive, shall, if solemnized in this State, be absolutely void without any decree of divorce or other legal process.”

Section 3. A divorce from the bonds of matrimony shall be decreed in favor of the innocent party for either of the following causes: ” Then follow fourteen specifications of causes, the second of which is, “adultery of either party.”

Another statute provides that if any person having a husband or wife alive shall marry or cohabit with another person, such person so marrying or cohabiting shall be punished as in case of adultery,” excepting among other cases “ any person legally divorced.”

The learned judge at circuit held that the marriage between the plaintiff and Adaline Smith, in New Hampshire, was void because she had “ a former husband living.” The learned judge obviously adopted the construction given in Cropsey v. Ogden (11 N. Y., 228), to that section of the Revised Statutes of this State, which declares that “ no second or other subsequent marriage shall be contracted by any person during the lifetime of any former husband or wife of such person, unless, first, the marriage with such former husband or wife shall have been annulled or dissolved, for some cause other than the adultery of such person,” etc. It was there held that the -woxé. former as used in our statute imports merely that the relation of husband and wife once existed, but does not import that the relation continues or has ceased. This construction was reached not simply from a consideration of the meaning of the word former, but from its meaning as our legislature used it. It seems necessary to give it that construction in order to give any meaning to the exception quoted, and to the exception in the following section which relates to the continued absence for five years of either husband or wife.

The New Hampshire statute contains no such exception. Either all divorced parties are permitted to marry again upon the theory that the relation of husband and wife cannot exist after the bonds of matrimony once entered into have been dissolved, or subsequent marriage is denied to both the innocent and the guilty parties during the lifetime of the other party. We assume from the adjudications of the courts of that State, to which we are cited, that although divorce is decreed only in favor of the innocent party, both parties are thereafter free to marry. (Clark v. Clark, 10 N. H., 385; Dow v. Dow, 38 id., 188; Emerson v. Shaw, 56 id., 420; State v. Clark, 54 id., 456.) The precise meaning, however, of the 'wor&.former as used in the statute is not considered in these cases. It would be difficult to believe that the policy of a State, which can find fourteen different causes for divorce, would be to restrict tbe subsequent marriage of tbe innocent party.

Tbe persuasion, therefore, is strong that we must construe tbe word former in tbe sentence when either has a former wife or husband living,” of tbe New Hampshire statute, not as simply importing that the relation of husband and wife once existed, but that it continues to exist. This construction is admissible. The word has is tbe present form of tbe verb to have. In the case of a woman twice married, if we desire to convey the idea that the marriage relation still exists between herself and her former husband as well as her latter husband, we would say she has a former husband; but if such relation had ceased to exist we would say she has had a former husband. She has the relation that exists; she has had that which existed.

In Moore v. Hegeman (92 N. Y., 521), the Court of Appeals construed the word former in a somewhat similar statute of New Jersey as equivalent to another, because the statute used the words as the equivalents of each other; and held the word former when so used' implied the continued existence of the relation. The meaning of the word is controlled by its association with other words or sentences and the manifest intention; and this is tbe reason of the decision in People v. Faber (92 N. Y., 146). This decree of divorce was pronounced in the State of Massachusetts. Section 6 of chapter 107, of tbe general statutes of that State, then in force, provides, “ a divorce from the bond of matrimony may be decreed for adultery or impotency of either party.” Such a^decree, according to the courts of that State, dissolves the bond of matrimony between both parties. (Commonwealth v. Putnam, 1 Pick., 136; Commonwealth v. Lane, 113 Mass., 458.) The twenty-fifth section of tbe same chapter permits the innocent party to marry again as if the other were dead, but forbids the guilty party to marry again during the life of the other party, and declares such prohibited marriage void and the party so marrying guilty of the crime of polygamy. / Put the courts of Massachusetts hold that this disability to marry again is simply a statutory and -not a natural disqualification to marry, and has no force beyond the territory of tbe State. In the case last cited the defendant married his first wife in Massachusetts; she obtained a divorce from him on the ground of his adultery. He then went into the State of New Hampshire and married his second wife and returned and lived with her in Massachusetts, whereupon he was indicted for polygamy. The court held that upon these facts the marriage in New Hampshire was valid, and that the indictment could not be sustained. To much the same effect are Van Voorhis v. Brintnall (86 N. Y., 18), and Thorp v. Thorp (90 id., 602).

We conclude that Adaline Smith, when she married the plaintiff in New Hampshire, was freed from the bonds ot matrimony contracted with her former husband, and therefore the New Hampshire statute did not prohibit her marriage there; that the Massachusetts statute could not prohibit it in New Hampshire so as to make it invalid there, and being valid according to the law of the State where solemnized, it was valid everywhere.

TÍie court should have instructed the jury that if they believed the testimony established the fact of the marriage in New Hampshire, then Adaline was the wife of the plaintiff.

' Judgment should be reversed and a new trial ordered, costs to abide the event.

Learned, P. J., and Fish, J., concurred.

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


author: LeaeNed, P.' J.

text:
       WILLIAM W. RAMSEY, as Overseer of the Poor of the TOWN OF LUZERNE, Respondent, v. DAVID CHILDS, Appellant.

      Undertaking on an appeal in bastardy proceedings — form of it— Code of Gnminal Procedure, see. 851 — the Gov/rt of Sessions cannot allow it to he amended, when defective.

    Appeal from an order made at a Court of Sessions of Warren county, dismissing an appeal on account of defects contained in the undertaking given by the appellant, and denying a motion for leave to amend the same. The defendant appealed from an order of filiation, made by two magistrates of the town of Luzerne, adjudging him to be the father of a child likely to be born. The undertaking, which was approved by the justices, was conditioned that “ the said David Childs shall appear at the next Court of Sessions, to be held in and for the county of Warren, on the 26th day of May, 1884, and not depart the said county without its leave.”
    A motion was made by the respondent, at the Court of Sessions of Warren county, to dismiss the appeal upon the ground that the undertaking was defective, in that it did not comply with the provisions of section 851 of the Code of Criminal Procedure. The-motion was granted. The order contained the following sentence: “ The defendant offers to amend said undertaking, or execute a new one in conformity with the statute, which is denied by the court upon the ground that they have no power or jurisdiction to grant the same.”
    The court at General Term said : “ The undertaking to be given under subdivision 2, section 851, Code of Criminal Procedure, is to be conditioned to appear at the next court, etc., ‘ to answer the charge and obey its order thereon.’ The sureties are to be approved by the magistrates. In this case the condition was to appear ‘and not depart the county without its leave.’ ‘ County ’ is probably a clerical error for ‘ court.’ But the condition is quite different from that required by the section, in its meaning and effect. The sureties would not be bound for the defendant’s obedience to the order of the court, but only for his attendance there.
    “ The only question then is as to the power of the Court of Sessions to permit an amendment or a new undertaking. We are referred to no provision of the statute which is applicable. The defendant cites sections 129, 730, Code Civil Procedure. But it is at least doubtful whether they apply to the present case. And as the undertaking now in question is to be approved' by the magistrates, we see no authority for the accepting a new undertaking by -the Court of Sessions.
    “Another objection may be stated. The offer to amend the undertaking was made by the defendant. No offer was made by the surety to consent to such amendment.' Clearly the undertaking would not be amended except by the consent of the surety.” (Code Civ. Pro., § 730.)
    Order affirmed, with ten dollars costs and printing disbursements.

      J. H. Bam, for the appellant.

      H. P. Gwinvyo, for the respondent.

       Decided, September Term, 1884.

   Opinion by

LeaeNed, P.' J.

Present — LeaeNed, P. J., Booses and LaNdou, JJ.

Order affirmed, with ten dollars costs and printing disbursements.


author: Barnard, P. J.:

text:
    ARTHUR QUINN, Respondent, v. THE LONG ISLAND RAILROAD COMPANY, Appellant.

      Negligence — action for personal injuries occasioned by it — the pain suffered by the plaintiff may be considered by the jury — when a verdict will not be set aside as excessive.

    'This action was brought to recover damages for personal injuries sustained by the plaintiff, while a passenger on one of the defendant’s trains, by reason of an accident alleged to have been caused by its negligence. The plaintiff, when the accident happened, was jammed in and fastened by broken pieces of the train so that he could not be extricated therefrom. The fragments of the wreck which held the plaintiff down supported the tender and locomotive of the train, which were over and about two feet from him. There was danger that the plaintiff would be crushed if the portion of the wreck which held him should be removed. He remained in this condition some thirty or forty minutes, and while so held requested a bystander to kill him, being conscious of the risk of being crushed. Upon the trial the court charged that the jury could take into consideration the plaintiff’s “ situation at the time, how painful, how trying it was.”

      Held, no error.
    "The evidence tended to show that the plaintiff, who was about fifty-four years old, had three ribs fractured, received a crushing wound in the lower part of the leg, and was also injured above the knee; that he was confined for six or seven weeks, suffering great pain and difficulty in breathing; was lame nine months after the accident, and might continue so for years.

      Meld, that a verdict of $5,000 should ^not be set aside as excessive.
    Appeal from a judgment in favor of tlie plaintiff, entered upon tbe verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    The action was brought to recover damages for personal injuries sustained by the plaintiff while a passenger on one of the defendant’s trains.
    It appeared upon the trial that the plaintiff, after the accident, was held dowD by a part of the wreck upon which rested the tender and locomotive, and that there was great danger of his being crushed by them if the pieces which held him fast were removed. lie testified that while so held he suffered greatly and thought that if anything was moved he would be crushed, and that he “ halloed for somebody to get a gun or pistol and blow his brains out.”
    The judge charged, among other things, as follows: You are not to speculate on the question whether or not he might have been killed. The compensation he is to receive is to pay for what was done, not for what might have resulted; but to this extent it may have a bearing on the case, in this respect only. When the plaintiff was in this position described to you, confined between the engine and the car, of course any danger of death, or anything of that kind then impending over him, undoubtedly increased his sufferings, his mental agony, if not his physical pain, and he is entitled to compensation for that, not because he might have been killed, that not having occurred, but you can take into consideration .his situation at that time, how painful, how trying it was. That is an element of damages, and he is entitled to compensation for that.
    The defendant excepted to the charge that the plaintiff was entitled to compensation for the suffering caused by the imminent danger of death.

      Edward, E. Sprague, for the appellant.

      William O. Oooke, for the respondent.
   Barnard, P. J.:

The plaintiff, while being carried by defendant as a passenger, was negligently injured, without any fault on his part; although the pleadings put in issue the liability of the defendant, its liability was admitted as part of the case upon the trial. The cause of the accident does not appear. There was a crash, and the front of the car in which plaintiff was sitting seemed to cave in. The plaintiff was thrown under the wreck. It was not erroneous to permit the witness Smith to testify to the circumstances surrounding the accident and the steps he took to release the plaintiff. He found the plaintiff so jammed in and fastened by the broken pieces of the train that he could not extricate him. He stated that he extricated another passenger and 'then returned to aid in extricating the plaintiff, the result of which testimony was vital -,to the plaintiff’s ease, in that it showed that the plaintiff remained in a condition of extreme pain, and under circumstances calculated to inspire terror, for thirty or forty minutes. The evidence shows that the plaintiff was held down by the fragments of the train, which were the apparent support of the tender and locomotive. The tender was thus supported about two feet above him. The plaintiff was conscious of the risk of removing the obstruction which held him, lest such removal should cause him to be crushed by the tender when the support to it was removed. In this extremity he desired Smith to kill him. The judge charged the jury that they could take into consideration “ his situation at that time; how painful, how trying it was.” This precise question has not been decided in this State. In the case of Ransom v. New York, and Erie Railroad (15 N. Y., 415) the Court of Appeals held that bodily pain and suffering of the plaintiff from the injuries were proper subjects of compensation. In deciding this case the court cite with approval Seger v. The Town of Barkhamsted (22 Conn., 290), where the instruction to the jury was that “ they had a right to consider all the circumstances of peril and danger attending the accident.” The conclusion of the appellate court in that case was that the injury is not confined to his wounds and bruises upon his body, but extends to his mental suffering.

The jury gave the plaintiff a verdict’for $5,000. It is claimed to be excessive. The evidence shows the plaintiff to have been fifty-four years of age; three of his ribs were fractured; he received a crushing wound on the lower part of the leg, above the ankle joint; he was also injured above the knee; he was confined six or seven weeks; he suffered great pain; he had difficulty in breathing on the left side. “ It pains,” says the physician, during respiration every time the man breathes; he is lame yet.” This was some nine mouths after the accident. It may be years before time will cease the difficulty,” is the testimony of his surgeon. Under this evidence an appellate court cannot say that the jury was influenced by passion, partiality or prejudice. We cannot say from a review of the evidence that the verdict was not well supported.

The judgment and order denying a new trial should be affirmed, with costs.

Dykman and Pratt, JJ., concurred.

Judgment and order denying new trial affirmed, with costs.


text:
    In the Matter of the Final Accounting of SILAS B. RUSKO, Administrator, etc., of EZRA DEAN, Deceased.

      Estoppel — when one who denies that he is interested in an estate is thereby estopped from subsequently compelling the administrator to account.

    One Dean died in 1871, leaving a mother and a half-brother. He had been married to the respondent and lived with her for over twenty years, but some time before he died she left him and lived openly, in the immediate neighborhood, with one Wood as his wife. The half-brother testified that after the decease of his brother he went to the respondent and asked her if she intended to take out letters of administration; that she replied that she was not his widow, that she had a bill of divorce from him and was married to Wood, and that she had no interest in the estate. Thereupon the half-brother-took out letters of administration, alleging in his petition that the deceased left n® widow, filed his inventory, paid the debts of the deceased and paid over the balance of the estate to the mother. In 1880 the respondent, claiming to be the widow of the deceased, filed a petition to compel the administrator to account to her as such.

      Held,, that she was estopped by her prior conduct and declaration from so doing.
    Appeal from a decree of the surrogate of Westchester county, made on the final accounting of Silas B. Rusko, as administrator of Ezra Dean, deceased.
    Rusko was appointed administrator in August, 1871, and filed an inventory of the estate in August, 1871. On March 26, 1880, the respondent Harriet E. Wood filed a petition praying to have him compelled to account and pay over to her the distributive share of the estate, to which she claimed to be entitled as the widow of ¡the deceased.

      Case & Robertson, for Busko, appellant.

      Reginald Ha/rt, for Harriet E. Wood, as widow of Ezra Dean,, respondent.
   Barnard, P. J.:

The decision of this case depends on a question of fact, which either has not been pass ed upon, or has been erroneously found in favor of respondent, by the learned surrogate. Ezra Dean died intestate in 1871. He left a mother and no children. He had been married to the respondent, and had lived with her for over twenty years. She left him and lived with .one James Wood, openly, as his wife, in the immediate neighborhood of Dean. Busko, the administrator, was a half-brother of Dean. He testified that after the death of Dean he went to the respondent and asked her if she intended to-administer on the estate of Ezra Dean, and she replied that she was not his widow, that she had a bill of divorce from him and had married Wood, and had no interest in the Dean estate. Busko thereupon took out letters of administration on the estate of his brother, paid his debts and funeral expenses, and paid over the balance to his mother, as sole next of kin. That was right, if there was no widow. Mrs. Dean, or Wood, denies that she so stated to Busko. Upon this question, I' think the evidence supports Busko. He at once swore there was no widow. This would have been an audacious falsehood and one not probable, in view of the fact that the affidavit was matter of record and made while Mrs. Dean, or Wood, lived in the immediate neighborhood. The administrator at once filed his inventory. Again, the respondent’s acts support the administrator in his testimony. The respondent knew of the death of Dean; saw him dead, and did not assert her claim as widow until after nearly eight years had expired from the granting of letters to Busko. Finally, it is proved that the respondent told Nathaniel Austin and Isaac II. Bishop that she had a bill from Déan and was married to Wood in the lifetime of deceased. The evidence, I think, taken together, establishes the fact that- the respondent denied that she was Dean’s widow, and acting upon this denial the administrator received some $425 in cash, paid the debts and expenses, which were $468, as allowed by the surrogate, and then transferred the security, a savings bank book, for the balance-of the estate, which was small, to the mother of the deceased. These facts show a complete administration of the estate by the administrator, which the respondent is estopped from now denying. By her act and declaration she had caused the administrator to part with that part of the estate which she now claims. When a party has by his declaration or consent induced another to act in a particular manner, he will not afterwards be permitted to deny the truth of the admission if the consequence would be to work an injury to such other person. (Bank of Genesee v. Patchin Bank, 19 N. Y., 312; McMasters v. Insurance Co. North America, 55 id., 229; Blair v. Wait, 69 id., 113; Boardman v. Lake Shore, etc., R. R., 84 id., 182.)

The decree should, therefore, be reversed and the proceedings remitted to the surrogate to dismiss the petition, with costs.

Dykman and Peatt, J.J., concurred.

Decree of surrogate reversed and proceedings remitted to surrogate to dismiss petition, with costs.