author: PRATT, J.:

text:
    ELIZABETH BARNES, Appellant, v. JEREMIAH WINTRINGHAM, Respondent.

      Mutual mistake of fact — when the party aggrieved will he relieved in equity.

    December 15, 1875, the defendant loaned to Mrs. Roper $2,000, and received from ber four bonds for $500 each, secured by four mortgages given by her, one upon each of four houses then owned by her, upon each of which a mortgage for $8,000 already existed. February 2,1877, the plaintiff, who had purchased one of the said houses, known as No. 166-J-, subject to the two mortgages, paid to the defendant the sum of $500, the said sum being paid and accepted with the intention of paying and discharging the $500 mortgage held by the defendant upon the plaintiff’s house. By a mutual mistake the bond and mortgage held by the defendant against the adjoining house, No. 168, which was still owned by Mrs. Roper, and a satisfaction piece thereof were delivered to the plaintiff, and the said satisfaction piece was by her duly filed in the county clerk’s office. Thereafter Mrs. Roper gave a new mortgage for $500 upon the said house, No. 168, and subsequently the prior $3,000 mortgage thereon was foreclosed, in an action to which the defendant was a party defendant, and a surplus of $155 19 realized upon the sale had thereon.

      Tins action was brought by the plaintiff, upon discovering the mistake which had been made, to have the mortgage existing upon her house, No. 166J, declared satisfied and discharged.

      Held, that she was entitled to a judgment to that effect.
    That the bond and mortgage were in fact satisfied and discharged by the payment made by her, and that her rights were in no way prejudiced or affected by the defendant’s mistake in delivering to her the wrong papers.
    Appeal from a judgment in favor of the defendant, éntered upon the trial of this action by the court without a jury.

      William JS. Davenport, for the appellant.

      JErastus New, for the respondent.
   PRATT, J.:

In December, 1875, Margaret A. Roper owned four houses and lots in Brooklyn, eacli of them incumbered and subject to a mortgage to secure a bond of $3,000. On the fifteenth of that month defendant loaned Margaret A. Roper $2,000, to secure which sum she gave back four separate bonds of $500 each. These bonds were respectively secured by a separate mortgage given by her upon one of each of the four houses respectively. The mortgages were all recorded about the same day. The plaintiff purchased one of the four houses from Margaret A. Roper, subject to the two mortgages. The houses had meantime been numbered, plaintiff’s number being' 166£. On the 2d day of February, 1877, the plaintiff, intending to pay off the $500 on her house No. 166|, paid the defendant the full amount due on that $500 bond and mortgage, and the defendant received the money, knowing her purpose, and himself intending to accept the money in .satisfaction of that indebtedness. The defendant gave to plaintiff a satisfaction piece, which by mutual mistake described the wrong mortgage. It purported to satisfy the mortgage on the house and lot adjoining the plaintiff’s property No. 168. The defendant at the same time gave to plaintiff the wrong bond and mortgage, i. e., the one covering No. 168. The plaintiff filed the satisfaction piece before the mistake was discovered, and so the record of the wrong mortgage was marked discharged. Afterwards, and before the discovery of the error, Margaret A. Roper, who still owned the adjoining premises (No. 168) which had been erroneously discharged, executed another $500 mortgage upon the property. In January, 1882, the holder of the first $3,000 mortgage'on No. 168 brought a foreclosure suit making defendant a party. Judgment was recovered and the property was sold, leaving a net surplus of $155.19. After discovery of the error the plaintiff’s attorney called on defendant’s attorney and offered to deliver up the ’bond and mortgage which she had received, and asked for a satisfaction piece of the mortgage on the plaintiff’s property. The plaintiff sued defendant to have the $500 mortgage on her premises (No. 166^-) declared satisfied. The court at Special Term refused her prayer. I think this was error. The plaintiff paid and defendant received the money. The indebtedness upon the bond was extinguished. The mortgage, which was a mere collateral to that bond, became satisfied and ceased to be a lien upon the premises. The bond and mortgage upon her property then became funotvs offioio, but the mortgage still remained as an apparent lien upon her property, she was therefore entitled to have from the defendant some evidence that the mortgage had been in fact satisfied and to have the record cleared of the apparent lien.

The decision below proceeds upon the theory of mutual mistake. But there was no mistake in paying the debt, nor in the actual satisfaction of the mortgage. The mistake was made after the mortgage was actually satisfied, and in giving the mere evidence of that satisfaction the delivery of the wrong bond and mortgage and the execution of an erroneous satisfaction piece, did not revive the debt or lien which had been paid and discharged. It was a blunder for which the defendant was primarily responsible. He uttered the paper which worked the mischief of which he complained, knowing its intended use. Plaintiff had done her whole duty when she paid the debt. Defendant then undertook to clear the record and by mistake he cleared off the wrong mortgage. He cannot be heard to plead his own blunder as against the plaintiff’s plain right to a clean record and his plain duty to give her a proper satisfaction piece.

Nor is there any element of estoppel, because the plaintiff’s conduct has not prejudiced him. He sent her to the register’s office with an improper paper. It was his act which resulted in the entry of the discharge of the wrong mortgage. The fault was primarily bis own. There surely can be no equity in his keeping her money as indemnity against his own blunder.

The judgment should be reversed, with disbursements on this appeal, but without other costs, and judgment should be entered •declaring said mortgage satisfied and directing the register to mark the mortgage upon plaintiff’s property as discharged .in pursuance •of the decree to be so entered.

Present — Baenaed, P. J., DyKhan and Peatt, JJ.

Judgment reversed with disbursements and no other costs of-appeal. Decree made that the mortgage on plaintiff’s property is paid and directing register to cancel same.


source: Caselaw Access Project

author: Piíatt, J.:

license: Public Domain

text:
    GEORGE W. SMITH, as Executor, etc., of LEMUEL SOPER, Deceased, Appellant, v. PHEBE H. SOPER, Respondent, and Others.
    Debts— when they are not specifically charged upon real estate devised — creditors cannot resort to the testator’s real estate after the expiration of three years.

    The husband of the defendant gave and devised to his children certain real estate, and to the defendant, his widow, all the rest and residue of his estate, both real and personal. At the beginning of the will was the following clause: . “First. After all my lawful debts are paid and discharged I give and bequeath,” etc.

      Meld, that the payment of the debts was not specifically charged upon the real estate devised to the widow, and that creditors of the deceased could not, after the expiration of three years, enforce their claims upon it, as against persons who had purchased the same from her in good faith and for a valuable consideration.
    Appeal from a judgment, entered upon the trial of this action by the court without a jury.
    The action was brought to enforce the charge and lien of the ■debts of Isaac B. Soper, deceased, against the real estate of which he died seized.
    The testator died on January 24, 1876, and his will was proved and letters testamentary thereon issued to the defendant Phebe, his widow, in the February following. The will, after its .formal beginning, proceeded as follows, viz.: “ First. After all my lawful debts are paid and discharged.I give and bequeath,” etc. He then gave certain lots to his children, and all the rest, residue and remainder of his estate, both real and personal, to his wife. She advertised for claims and paid such as were presented. On February 15, 1ST9, she sold the premises devised to her by her husband to the defendant "Weed, who thereafter gave mortgages thereon to the other two defendants.

      Edward R. Ackerly, for the plaintiff, appellant.

      Stephen B. Jacobs, for Phebe H. Soper, defendant and respondent.
   Piíatt, J.:

There was a general provision in the will of Isaac B. Soper that after all my debts are paid and discharged I give and devise.” The devisee was defendant Phebe H. Soper, who was also executrix. Assuming that the debts were a charge upon the real estate, it was, nevertheless, subject to the statutory provisions for their ascertainment, viz., that they should be duly presented under notice published by the executrix under the order of the surrogate. The will was probated and letters issued February 15, 1876.

There is a broad distinction between a general clause in a will for the payment of debts and one for the payment of a specified legacy or debt with respect to the application of the statutes. The clause in question in this will simply provides for what the law required if there had been no such clause, to wit, that the- debts should be a charge upon the property of the testator. ' Where legacies are made a charge upon property devised a purchaser is neld to take, with notice of such specific lien, and it is his duty to see that the lien is discharged, but when no provision is made for the payment of debts or there is a general provision for the pay-mem; thereof, the purchaser can, after the expiration of the three years, take the estate free and discharged therefrom. (Jewett v. Keenholts, 16 Barb., 193; Waring v. Waring, 7 Abb., 479; Hyde v. Tanner, 1 Barb., 76.)

It was the object of the statute to prevent the embarrassment that would result from making land subject for a long series of years to a lien for the debts of a deceased person. It will be observed that if this construction is not placed upon the statute, no. limit could be placed upon the time the lien would exist except that made by the statute of limitations upon the original claim, and this latter could be prevented ■ from taking effect by various methods which could not be ascertained by a purchaser. Again, how is a purchaser to ascertain what the debts are or who are the creditors in case of a legacy or specified debt ? It is stated in the will and therefore the purchaser lias notice; but a general clause after payment of my debts ” gives no information to the purchaser and he cannot be regarded as taking with notice of any lien. The statute was intended for his protection and he can rest securely under the letter and spirit of its provisions.

In the case of Hyde v. Tanner (supra) it was held that the statutes created a lien that runs with the land for three years, after the expiration of which the devisee might sell and a bona fide pur- - chaser take the estate free from the debts. During the three years the lands remain liable to be sold to pay the debts, but the right to enforce this remedy must be exercised within this time to bind the land in the hands of bona fide purchasers. Any other construction than this is against the general policy of the law and renders the statute intended to facilitate the speedy settlement of estates and the transfer of property entirely nugatory. The statute is based upon the principle that the purchaser having paid his money in good faith, it devolves upon the creditor to see that it is applied in payment of the debts of the testator, and upon the further principle that the creditors having three years in which to enforce their lien, if they neglect to do it within that time, bona fide purchasers shall not be prejudiced by such neglect. The, cases cited by the plaintiff have reference to. legacies or other specific charges upon real estate and do not fall within the terms of the statute.

If these views are correct the judgment must be reversed and a new trial granted, costs to abide the event.

DtKMAN, J., concurred; Barrard, P. J., not sitting.

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


author: Pkatt, J.:

text:
    WILLIAM POST, Appellant, v. CHARLES KREISCHER and GEORGE KREISCHER, Respondents.

      Hight to plant oysters in lands under water — the person so doing acquires a title to the oysters as against trespassers — he cannot prevent the State or its grantee from, filling the lands.

    The plaintiff had for many years planted oysters in a portion of the sound adjacent to Staten Island. In 1881 the commissioners‘of the land office granted to the owner of the adjoining upland, for the beneficial enjoyment thereof and the promotion of commerce, a tract of land under water, which included tbe beds upon which the plaintiff’s oysters were planted. Thereafter the defendants, acting’ under the directions of the owners of the said lands, and for the purpose of filling and reducing the same, dumped dirt and other materials therein and thereby destroyed the plaintiff’s oysters.

      Held, that he had no cause of action against them for the injury thereby sustained.
    Appeal from a judgment in favor of tbe defendants, entered upon a verdict directed by tbe court.
    Tbe action was brought to recover damages occasioned to oysters belonging to tbe plaintiff by dirt and other refuse dumped upon thém by the defendants.
    Tbe plaintiff claimed that be bad for more than thirty years been in tbe habit of planting and raising oysters at tbe place referred to, and that tbe person from whom be bad purchased tbe bed bad planted them there for many years prior thereto.

      Benjamin J. Patterson, for tbe appellant.

      DamicL MoOlure, for tbe respondents.
   Pkatt, J.:

Tbe plaintiff bad planted oysters under tbe waters of tbe New York bay, adjacent to Staten Island. In tbe month of June, 1881, the defendants caused a large amount of dirt and other material to be dumped upon tbe oyster bed, destroying the oysters.

This action is brought to recover damages for tbe injury thus inflicted. Upon tbe trial tbe court directed a verdict for defendants. It appeared that tbe defendants were sons of Balthazar Kreischer and bad bis authority to do tbe acts complained of. Bahhazar Kreischer was the owner of tbe upland adjacent to tbe laud under water where the oysters had been planted, and on the 28th day of April, 1881, the commissioners of the land office of the State had granted to him a tract of land under the waters of the bay in front of his property, and which included the oyster bed. This grant was made not only for the purpose of promoting commerce, but also for the beneficial enjoyment by the adjacent owner (Laws 1850, chap. 283), and the dirt and materials were dumped upon the oyster bed by defendants for the purpose and in pursuance of a plan to fill in the lands granted and to reclaim them from the water. The grant conveyed to the grantee the legal title to the land. It was perfectly lawful for him to do the act complained of, and the acts of the defendants as his agents were protected by the grant. Their acts were for the improvement of the property and the beneficial enjoyment thereof. What the State could have done prior to the grant the grantee could do thereafter.

Unless, therefore, there was something in the plaintiffs possession which gave him a right to hold and enjoy the plot which he had staked out for his oyster bed against the people of the State the case was properly disposed of. The plaintiff was not the owner of the land, and there is nothing in the evidence which would justify a court in holding that there was a title by adverse possession. All that the plaintiff proves is that he had for many years in the spot where the mud was dumped planted oysters, and had marked it out by stakes, and that the spot was not a natural oyster bed. These facts establish plaintiff’s property in the oysters, and for any interference with them by another he had his right of action. (Fleet v. Hegeman, 14 Wend., 42.)

But this rule by law, while it gives plaintiff protection against all trespassers, afforded him no protection against the acts of the sovereign power. It is well settled that the people of the State, within whose territory it lies, owns the land under water, of arms of the sea and rivers which have the flux and reflux of the tide, and have the power of disposal thereof. (Lansing v. Smith, 4 Wend., 9; Furman v. The Mayor, 10 N. Y., 567.) The rights of the plaintiff were held in subordination to the rights of the people, and subject to be interfered with at any time by the acts of the people. This interference might be either pursuant to a direct act of the legislature, or through the instrumentality of the commissioners of the land office acting pursuant to the powers which the legislature have conferred upon them. It would hardly be claimed that if the legislature had authorized the erection of a dock or other structure upon the land which the plaintiff had staked out, that he could, upon any legal principle, claim or recover damages from the State for interference with his rights,-and yet such a case would rest on no different principle of la-w than the plaintiff’s claim against Kreischer as grantee of the State.

The plaintiff was lawfully in possession of the oyster bed against, everyone but the sovereign. As against acts of the sovereign his loss is damnum absque vmjwria. For such acts the law gives him no remedy. The defendants acting tinder the grantee of the sovereign power were protected for their acts within the limits of the grant. The evidence, therefore, failed to show any cause of action in plaintiff’s behalf and the complaint was properly dismissed.

The judgment must be affirmed, with costs.

DyKmaN, J., concurred; Baenaed, P. J., not sitting.

Judgment affirmed, with costs.


author: Peatt, J.:

text:
    EDITH E. KERR, Appellant, v. JAMES BRYAN and Others, Respondents.

      Will — when a gift over, in case of the decease of- the fk’st devisee, refers to his death in the lifetime of the testator —parol evidence is inadmissible to prove the intent of the testator.

    A testator gave all tlie rest, residue and remainder of Ms estate, both, real and personal, to his “ daughter Anna Maria Kerr, to her and her heirs, forever.” A codicil to his will provided, “ that in case of the decease of my daughter Anna all that I have devised and bequeathed to her shall go to her children then living, share and share alike to them and their heirs, forever.”

      Held, that the codicil only provided for the case of the death of the daughter during the lifetime of the testator, and that upon his death she took an estate in fee in the property devised to her.
    Upon the trial testimony was offered and excluded as to a conversation between the testator and the counsel who drew the will to show that his intention was to limit his daughter’s interest in the property to a life estate.

      Held, that the testimony was properly excluded.

      Appeal from a judgment in favor of the defendants, entered upon the trial of this action by the court without a jury.
    This action was brought by the plaintiff to compel the payment of the taxes and assessments legally due upon certain property in Kings county, and to compel the defendants to put and keep the said premises in repair.
    The plaintiff claims to have an interest in remainder in the property in question after the death of her mother, Anna Maria Kerr, under the will and codicil of her grandfather, Richard J. Todd, insisting that the devise to said Anna Maria Kerr, by the codicil added to said will, limited her estate in the property in question to a life interest only.
    The defendants’ answer puts in issue the construction of the "will and codicil, as claimed by plaintiff, and alleges that the said Anna Maria Kerr took the said property in fee thereunder.

      S. W. Fullerton, for the appellant.

      A. F. Lamb, for the respondents.
   Peatt, J.:

The defendant, James Bryan, derived his title to the property in question through Anna Maria Kerr, and the determination of this action depends on the question whether under the will of Richard • J. Todd, Mrs. Kerr took an estate in fee or an estate for life. If she took an estate in fee, the judgment of the Special Term was right and must be affirmed, but if she took an estate for life the judgment must be reversed.

The will of Mr. Todd contained this provision: “ All the rest, residue and remainder of my estate, both real and personal, I give to my daughter Anna Maria Kerr, to her and her heirs, forever.” The property in question was included in this devise. By a codicil to the will it was provided “that in case of the decease of my daughter Anna, all that I have devised and bequeathed to her shall go to her children then living, share and share alike, to them and their heirs forever.” The appellant claims that under the codicil Mrs. Kerr took only a life estate. The words “in case of the decease,” or “ in case of the death ” have received frequent judicial interpretation.

In Livingston v. Greene (52 N. Y., 118) the testator, after a life estate to bis wife, devised bis real estate to bis children, and then provided that “ should any of my children die and leave lawful heirs,” etc.: it was held that the words “should any of my children die ” refer.red to a death in the lifetime of the testator.

In Kelly v. Kelly (61 N. Y., 47) the testator devised his estate to his children and then provided, “ in case of the death of either of .my said children, I devise the whole of my estate to the survivor,” etc., held that the deaths referred to by the last clause were those happening anterior to that of the testator.

In Crossman v. Field (119 Mass., 170) the testator after giving all his property to his niece, directed “that if the said Julia Frances should not live, then the property which I now give to her, I give to my brother,” etc.; held, that the proviso that if the niece “should not live” is equivalent to “if she should die” or “in case of her death,” and must be construed “if she should not survive me,” and that the niece took an estate in fee.

In Briggs v. Shaw (9 Allen, 516) the testator gave to his sister all his real estate in Salem, and then provided, “ that’ in case of her decease I give the same to my nephew John A. Briggs; ” held, that the words “in case of her decease” had reference to the death of the sister in the lifetime of the testator, and that outliving hirn she took an estate in fee. Other cases without number might be cited to the same effect.

These authorities control the construction of this will. The words in the codicil, “in case of the decease of my daughter,” have reference to her death prior to that of the testator, but outliving the testator Mrs. Kerr took an estate in fee.

Testimony was offered and excluded as to a conversation between the testator and his counsel who drew the will, to the effect that his intention was to limit Mrs. Kerr’s interest in the property to a life estate. This evidence was not admissible. The intention of the testator must be ascertained from the language of the will, and when such language has a plain meaning, and is neither uncertain and ambiguous or doubtful, parol evidence to contradict it to explain it is inadmissible. (Williams v. Freeman, 83 N. Y., 569; Kelly v. Kelly, 61 id., 51; Van Nostrand v. Moore, 52 id., 18; Arcularius v. Geisenhainer, 3 Bradf., 64; Mann v. Mann, 14 Johns., 1.) To admit such evidence in this case would be to contradict the plain meaning of the will. The language used has been the frequent subject of consideration by the court, and must be interpreted in the light of the decisions. It is not doubtful or uncertain. Its meaning is clear, and to admit evidence to contradict it would be to overthrow the clearly expressed intention of the testator.

In Williams v. Freemcm, the court says: The statute which requires these intentions (the testator’s) to be expressed in writing attested in a prescribed form, precludes any other proof of them except the writing and such facts and circumstances as are necessary to its intelligent reading.”

The judgment was right and must be affirmed, with costs.

Present — Babnabd, P. J., DyxmaN and Peatt, JJ.

Judgment affirmed, with costs.


author: Pratt, J.:

text:
    LOUISE U. SKIDMORE, Appellant, v. WILLIAM POST, as Executor, etc., of ABRAM P. SKIDMORE, Deceased, Respondent.

      Claim against the estate of a deceased person — over what class of claims the referee has jurisdiction — when he map take and state the account of a special guardiam to sell an infant’s real estate.

    The defendant’s testator, as the special guardian of the plaintiff, had received the proceeds of real estate sold, in pursuance of an order of the court, and had been directed to invest the same and apply the income to the maintenance and education of the infant. The testator died in 1880, and the defendant qualified as his executor. The plaintiff came of age in February, 1881, and presented a claim in the usual form against the defendant, as executor, which was, upon the usual stipulation, sent to a referee. It was shown that the special guardian had never made or filed any report or account, and that, so far as the plaintiff knew, he had never applied any part of the income to her support, or paid over any part of the principal, or been relieved from his trust.
    The referee dismissed the claim upon the ground that, in the absence of evidence to the contrary, it was not to be presumed that the testator had failed to invest the funds, or that he had converted any portion thereof to his own use.

      Meld, that this was error; that the referee should have taken and stated the account of the special guardian, and that the balance found to be due to the plaintiff should have been allowed as a claim against the defendant.

      Appeal from an order made at a Special Term confirming the report of a referee, and from the judgment in favor of the defendant entered thereon.

      A. N. Weller, for the appellant.

      J. T. Marean, for the respondent.
   Pratt, J.:

The evidence in this case established the following facts: That Abram P. Skidmore was appointed the special guardian of Louise U. Skidmore, then an infant, by the County Court of Queens county, in a proceeding to sell real estate of said infant. He sold such real estate pursuant to an order of the County Court, by two separate sales, and received the proceeds thereof. He was directed by the court to invest the proceeds of the first sale on bond and mortgage and apply the income to the maintenance and education of the infant. The proceeds of the second sale were ordered to be invested for the benefit of the infant until the further order of the court.

Abram P. Skidmore died in Queens county, in 1880, and the defendant qualified as his executor in July of that year. The plaintiff became twenty-one years of age in February, 1881.

The special guardian never made any reports of his trust or filed any account as required by law, and so far as plaintiff had knowledge of the subject, had never applied any of the income to her support or education, and had never paid over to her any of the principal sum, and had never been relieved from his trust. The plaintiff presented a claim to the defendant as executor of said Abram P. Skidmore, in the usual form, which was disputed and referred upon the stipulation of the parties and the approval of the surrogate of Queens county, to a referee to hear and determine, as provided in the statute in reference to claims against decedent’s estate. (R. S., part 2, tit. 3, art. 2, chap.. 6.) The referee, upon proof of the facts above set forth, dismissed the claim upon the ground that it was to be presumed, in the absence of evidence to the contrary, that the decedent had invested the estate as directed by the order of the' County Court, and in the absence of evidence showing that there was a failure to invest, or that the decedent bad converted tlie fund to bis own use, the plaintiff bad no claim against tlie estate.

The statute is certainly broad enough to cover such a claim as is here presented. Section 34 provides for -giving notice to creditors of tlie decedent to present their claims to the executor or administrator. “ Upon any claim being presented, the executor or administrator may require satisfactory vouchers,” etc. (2 R. S., 88, sec. 35.) “ If the executor or administrator doubt the justice of any claim so presented, he may enter into an agreement in writing to refer,” etc. (Sec. 36.) Upon the order being entered with the clerk of the Supreme Court “ the same proceedings shall be had as if the reference had been made in an action in which such court might by law direct a reference.”

All that is required by the statute is that the claim must be one which existed against the deceased during his lifetime, or would have existed against him had he lived. Claims against the executor or administrator individually and growing out of the administration of the estate are not referable under the statute for the reason that they arise after the decedent’s death. (Godding v. Porter, 17 Abb., 374; Smith v. Patten, 9 Abb. [N. S.], 205.) But all claims arising out of transactions had with the deceased and which matured during his lifetime and were then properly demandable, or which would have become due or demandable had he lived, are claims against the decedent’s estate and properly referable under the statute. (Francisco v. Fitch, 25 Barb., 130.)

It is true that the plaintiff’s claim was of an equitable nature, that it would probably have required the taking of an account and the striking of a balance before it could have been determined what amount was due to the plaintiff; but there is nothing in any of these requirements which the referee had not power to determine. He had precisely the same power to settle and adjust the account between the parties as he would have had if the plaintiff had brought an action for an accounting against the defendant in this court, and such action had been referred to the referee to hear and determine. Francisco v. Fitch, above cited, so far as the nature of the claim is concerned, is very similar to the case under consideration. That was a claim by a surviving partner against the estate of his deceased partner growing out of the partnership, and was in part for moneys paid on partnership debts after the death of the intestate. The court held in that case, that the object of the statute was to allow a reference of all claims against an estate, whether of a legal or equitable nature, which the executor or administratoi was competent to settle.

The case was therefore properly before the referee for determination, and upon the facts proven he erred in dismissing the claim. It is conceded that the decedent received the proceeds of the sales of real estate as special guardian; that he had never been discharged from his trust, and had never paid over any part of the principal. It does not appear that plaintiff had any general guardian, and so far as she was informed none of the income had ever been applied to her support. Other evidence was given which tended to show that decedent had not been as careful and accurate in the discharge of his duties as the law required.

The reason assigned for the dismissal of the claim is, that the presumption was that the testator had performed his duties as trustee, and had properly invested the fund; but, assuming that to be true, the time' had arrived for him to account to his cestui que trust. ' He could not account by simply passing over the securities in which he had invested the fund; he must show that the trust fund had not depreciated through his carelessness or neglect; in other words, he must give an account and explanation of his performance of his trust and his dealings with the fund, and his liability to account was a personal claim against him during his life, and after his death against his estate; whether or not he had converted the fund t.o his own use was. of no sort of consequence so far as his liability to account was concerned. What more then was the plaintiff to prove than was proven ? She knew nothing of the manner in which the trust had been performed; whether the estate was properly invested or not; whether it had sustained losses or not; whether if there had been losses the trustee was personally chargeable or not, were all facts peculiarly within the defendant’s knowledge, and the plaintiff was not bound to give evidence of them.

It is conceded by the respondent that in an action for an accounting, the burden of showing the testator’s dealings with the fund would- have rested upon the defendant. I think the same rule applied to this proceeding. It was to proceed, and the ref.eree had the same power as if tbe order of reference bad been made in an action in tbis court. Tbe defendant was tbe representative of tbe testator; be was tbe proper one to settle and adjust tbis claim. If an action bad been brought be would have been tbe sole defendant.

Tbe object of tbe statute was to provide a speedy and inexpensive way of settling claims against estates, and when tbe matter is properly before tbe referee, it is to proceed in tbe same manner, and to be governed by tbe same rules as would govern- tbe trial of an action. Tbe evidence made out a prima facie case, and in tbe absence of any proof to tbe contrary tbe plaintiff was entitled to a judgment.

Tbe judgment must be reversed, tbe order of reference vacated and a new trial ordered, with costs to tbe appellant to abide the event.

Present — BarNard, P. J., Dykman and Pratt, JJ.

Judgment and order denying new trial reversed and new trial . granted, costs to abide event; reference vacated.


author: Barnard, P. J.: Yeati’, J.

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. EDGAR HUSTIS, Appellant.

      ■ Seduction under a promise to ma/rry — when a promise, upon condition that the female becomes pregnant, is sufficient —1848, chap. 111.
    ■ One who seduces and lias illicit connection with an unmarried female of previous chaste character, under a promise to marry her in case she becomes pregnant, is guilty of a misdemeanor, under chapter 111 of 1848, providing for the punishment of seduction.
    Appeal from a judgment of tbe Court of Sessions of Putnam county, convicting the defendant of tbe offense of seducing complainant under a promise of marriage.

      W I Thorn, for tbe appellant.

      William Wood, district attorney, for tbe respondent.
   Barnard, P. J.:

Tbe Court of Appeals have settled tbe question presented by tbis : appeal adverse to tbe appellant. Assuming that there was proof ' that the seduction was acconaplished under a promise of marriage, conditioned upon pregnancy resulting therefrom, such a promise is ■ sufficient under chapter 111, Laws of 184-8. It is not necessary that the promise should be a valid and binding one between the parties. The offense consists in seducing and having illicit connection with . an unmarried female under promise of marriage. It is enough that a promise is made, which is a. consideration for or inducement to the intercourse. (Kenyon v. The People, 26 N. Y., 203.) This case is approved in Boyce v. The People (55 N. Y., 644). In that case the promise was one conditioned upon a consent to illicit con- - nection. That consent, based upon such a promise, was within the law. It was held, in Armstrong v. The People (70 N. Y., 38), that -the question was not presented by the case. The court cited with ■ approval the cases cited, Boyce v. The People and Kenyon v. The People.

The conviction should, therefore, be affirmed.

DyKmaN, J., concurred.

Yeati’, J.

(dissenting) :

This case fairly raises the question whether a promise of marriage, upon condition' that the intercourse results in pregnancy, falls •within the statute making seduction under promise of marriage a ■crime. The judge charged the jury “tha,t if the promise of mar- ■ riage was conditional, in that the defendant promised to marry the •prosecutrix in the event of her becoming pregnant from the connection charged, then such a promise is within the statute upon which this indictment is found,” and defendant excepted thereto. This was a material question in the case arising out of the testimony of the prosecutrix herself.

It has been held that a promise conditional upon immediate 'intercourse is within the statute, but in such case the condition is performed and the promise becomes absolute at once; or, in other words, the seduction is accomplished .under a promise of marriage. How can it be claimed that seduction is accomplished when there is no promise to marry except upon an event that may never occur? The offense consists in seducing under a promise of marriage, and while it is not essential that the promise shall be valid and binding between the parties, it is necessary tbat the party seduced should rely upon the promise and be influenced thereby to submit, and hence the law implies a mutual promise on the part of the female if she yields to the solicitations of a seducer made under his promise to marry. Take the case of a female yielding to embraces under a promise that the man would marry her in case his wife, then living, should die within the year, could it be seriously claimed that the statute was intended to cover such a state of facts ? The plain object of the statute was to punish fraud and deceit and at the same time protect the innocent and confiding against falsehood and fraud. It was passed in the interest of good morals and not to ■ set a premium upon licentiousness. It had in view to guard the pure and unsuspecting from illicit connection where they submit solely because they are led to believe that they are under a meritorious promise of marriage with the seducer. Any other construction would have a tendency to subvert good morals and furnish a cover for licentiousness and blackmail. The words seduction under the promise of marriage imply that the seduction is accomplished under or by means of an absolute promise, or one that becomes absolute the moment the illicit connection is accomplished.

If the defendant was guilty under the statute, he became so when the connection was had, but there was no promise to marry then, nor until pregnancy intervened. To be within the statute,. the promise must precede the illicit intercourse, otherwise it is not had under a promise of marriage.

Tinder all the evidence in the case the jury might well have found that if any promise was made by the defendant it was upon the condition that the prosecutrix became pregnant by the intercourse, had they not been instructed as before stated. Upon such a finding of fact the case would not fall within the statute.

If these views are correct it follows that the conviction should be set aside and a new trial granted.

Conviction and judgment affirmed.


author: Pbatt, J.;

text:
    THE COMMISSIONERS OF HIGHWAYS OF THE TOWN OF JAMAICA, Respondents, v. HENRY A. VAN ALLEN, Appellant.

      Sighway — enwoachmeni upon it — certificate of a jury, summoned, under section 105 of 1 JRevised Statutes, 522 — question as to whether an appeal lies therefrom to the County Court — Code of Civil Procedure, see. 3044.
    Appeal from a judgment of the County Court of Queens county, reversing a judgment and setting aside a certificate of a jury in proceedings brought by the commissioners of highways of the town of Jamaica to compel the appellant to remove an alleged encroachment upon a highway in that- town.
    The court at General Term said: “ There is some doubt whether this proceeding was appealable to the Oounty Court. The commissioners claimed that there was an encroachment made or continued by defendant upon a highway in the town of Jamaica, and a failure •to remove the same after order and notice. By the provision of 1 Revised Statutes (522, § 105) the commissioners applied to a justice of the peace for a precept to summon a jury. The jury found no encroachment, and made a certificate to that effect, in which they certified the damage to defendant sustained by him by such proceedings.’ Section 108 provides that those damages, ‘ together with ■the costs thereof, shall be paid by the commissioners, and shall be a charge in their favor against the town.’ There is no provision for any entry of judgment or for its collection. The proceeding is •special. The justice issues the precept for the jury and swears them and the witnesses, and then his duty seems to end. (Pugsley v. Anderson, 3 Wend., 468.) The case seems to resemble cases of reassessment of damages in opening roads. The justice causes a jury to be summoned, and they fix the,damages. The damages so fixed are not collected by the judgment of the^ justice but by force of the certificate and the law under which it is made. Section 3044 of the Code, providing for appeals from justices’ judgments, does not seem to be broad enough to cover such a case. The County Court assigns two errors for reversal. The judgment is against the evidence and the damages are unproven. * * * The jury certified the defendant’s damages at twenty-five dollars. It is manifest that the damages intended to be certified by the jury relate wholly to the vexation and trouble, including legal expenses incurred in the defense of a baseless claim. The jury had the proceedings; knew of the contest- upon the trial. A number of witnesses were sworn. Counsel were present conducting the investigation for the parties. The jury make the inquest; they are to be aided by witnesses if produced by the parties, and not otherwise. The damage is to be found in the same way. The amount found is reasonable and proper, and the judgment of the County Court should be reversed, with costs, and the certificate of the jury stand in full force.”

      W. J. Stamford, for the appellant.

      John Fleming, for the respondents.
   Opinion by

Pbatt, J.;

opinion by Barnard, P. J., for full, reversal.

Present — BabNabd, P. J., Dyxman and Pbatt, J.

Order of County Court reversed and that of justice affirmed, except as to part reversing the twenty-five dollars damages found, by the jury.


author: Pratt, J.

text:
    ABRAM VAN SICKLEN and Others, Plaintiffs, v. THE BOARD OF SUPERVISORS OF QUEENS COUNTY, Defendants.

      Supervisors — no other compensation can Tie allowed to them than that provided in' chapter of 1881 — No extra compensation can he allowed for services rendered., upon committees. '■

    CONTROVERSY submitted, upon a statement of facts agreed to by the parties, as provided in section 1279 of the Code of Civil. Procedure.

      The question in dispute was whether the board of supervisors of Queens county could lawfully audit and allow a per diem allowance - of three, dollars to members of the board for committee work done ■ by them at times other than at sessions of the board. The defendant claimed that they were authorized to make such allowances by section 8 of chapter 482 of 1875, as amended by chapter 25?' of 1876.
    The court at General Term said: “ Chapter 97, Laws of 1881y. prescribing the compensation of supervisors, declares that no other • compensation, fee, charge or allowance of any land shall be made to any supervisor for his services, and that any supervisor who shall receive or vote for any allowance in violation of this section 'shall’ be guilty of a misdemeanor. The effect of this section is to repeal the provision of the law of 1876, by which supervisors were allowed' pay for services upon committee, even without the words of express repeal found in the latter part of the section. Chapter 58, Laws - of 1882, does not authorize payment for services upon committees. It follows that the credit of the defendants of three 'dollars per day was illegal and void.”

      John Fleming, for the plaintiffs. -

      John J. Armstrong, for the defendants.
   Opinion by

Pratt, J.

Present — BarNArd, P. J., DykmaN and Pratt, JJ.

Judgment for plaintiffs upon submitted case.


author: Dykman, J.

text:
    GLENNIE ROOT, by JENNIE ROOT, her Guardian ad litem, Appellant, v. J. R. VAN DUZEN and Others, Respondents. JENNIE ROOT, Appellant, v. J. R. VAN DUZEN and Others, Respondents.

      Action — in the absence of fraud and collusion it may be settled by the parties withowi;' the consent of their attorneys.

    Appeals from orders made at a Special Term, denying motions-to vacate orders discontinuing the above entitled actions in so far as-they affect the rights of the plaintiff’s attorneys.

      Tbe court at General Term said: “ These actions were commenced •for the recovery of damages for the wrongful conversion of personal ■ property, and they were both settled by the parties before the service ■ of answer in either. Now the attorney for the plaintiff in both cases desires to proceed with the actions, notwithstanding such settlement, because it was made without his concurrence. There is no proof that these settlements were collusive or fraudulent as against the attorney for the plaintiff, but on the contrary it plainly appears that they were very proper and mutually satisfactory to the parties.
    “ In the case of Roberts v. Doty (31 Hun, 128) it was decided at • the last General Term of this court in our district that parties to an . action may settle and adjust the same without' the intervention of their attorneys in the absence of fraud or collusion. This court is, .•therefore, committed to that doctrine.”

      William T. O’ Neill, for the appellant.

      T. A. Reed, for the respondents.
   Opinion by

Dykman, J.

Present — BarNArd, P. J., Dykman and Pratt, JJ.

Orders affirmed, with costs, to be paid by plaintiff’s attorney •- personally.


text:
    RUFUS K. REYNOLDS, Respondent, v. THE PORT JERVIS BOOT AND SHOE FACTORY (Limited), Appellant.

      .Moidence — right of a pa/rty to call all his witnesses — when the circuit judge cannot limit the number.

    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 action was brought to recover for services claimed to have ■ been rendered by the plaintiff for the defendant.
    The court at General Term said: “ The two principal questions .litigated upon the trial were: First. Whether plaintiff was hired for forty months; second. Whether he, for a valid consideration, waived any right resulting to him from his discharge. Upon these questions tbe circuit judge limited tbe number of witnesses to be called bj tbe defense. This we tbink was error.

      “ Upon questions collateral to tbe facts in issue, as tbe opinions of experts, or tbe impeachment of a witness, tbe circuit judge bas much discretion; but with respect to tbe chief issues litigated tbe party bas a right to spread bis whole case before tbe jury. It may well be that bad tbe other witnesses been sworn the Terdiet would have been tbe other way.”
    Judgment reversed, costs to abide event.

      Lewis JE. Garr, for tbe appellant.

      John W. Lyon, for tbe Tespondent.
   Opinion by

Pratt, J.

Present — Barnard, P. J., Dykman and Pratt, JJ.

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


author: Pratt, J.;

text:
    Harry C. Eldridge, Respondent, v. Levi W. Flagg, Appellant.
   Order affirmed, with costs and disbursements. Opinion by

Pratt, J.;

Dykman, J., not sitting.


text:
    In the Matter of Daniel Underhill and others, Trustees, etc.

   Order of surrogate modified in accordance with opinion. Order to be settled by Pratt, J, Opinion by

Pratt, J.


author: Dykman, J.;

text:
    Patrick Quinn, Appellant, v. William D. Warren, Respondent.

   Judgment and order denying motion to set aside tbe same affirmed, with costs.. Opinion by

Dykman, J.;

BakNArd, P. J., dissenting.


text:
    Patrick Quinn, Appellant, v. William D. Warren, Respondent.
   Judgment affirmed, with costs. Opinion by

Dykman, J.;

BarNard, P. J., dissenting.


author: BarNard, P. J.

text:
    Thomas M. Rochester, Respondent, v. George B. Bunnell, Appellant.
   Judgment reversed and new trial granted, costs to abide event. Beierence vacated. Opinion by

BarNard, P. J.


text:
    Christina Seabury, Respondent, v. William G. Valentine, Appellant.
   Judgment and order denying new trial reversed and new trial granted, costs to abide event. Opinion by

Pratt, J.;

Dykman, J., not sitting.


author: Barnard, P. J.

text:
    The People of the State of New York, Respondents, v. William M. Johnson, Appellant.
   Conviction and judgment reversed. Opinion by

Barnard, P. J.


author: Barnard, P. J.;

text:
    Hiram W. Whitmore v. The New York Condensed Milk Company.
   Appeal from judgment order amending findings and order refusing to vacate same, and order affirming taxation affirmed, with costs, and appeal dismissed, with costs. Opinion by

Barnard, P. J.;

Pratt, J., not sitting.


author: BarNard, P. J., and Dyeman, J.

text:
    The People of the State of New York ex rel. Balthaser Markert v. James Jourdan, Commissioner of Police of Brooklyn.

   Order removing relator from police affirmed, with costs. Opinions by

BarNard, P. J., and Dyeman, J.


author: BarNard, P. J.;

text:
    In the Matter of the Petition of the Trustees of the New York and Brooklyn Bridge, Respondents, to acquire Lands of Clara Leggett, Appellant.

   Order confirming report of commissioners affirmed, with costs and disbursements. Opinion by

BarNard, P. J.;

Dyemae, J., not sitting.


author: Dyeman, J.;

text:
    Mary Price and Joseph O’Bryan, Respondents, v. Septimus Brown and another, Appellants.

   Judgment and order denying new trial affirmed, with costs. Opinion by

Dyeman, J.;

Barnard, P. J., not sitting.


text:
    James Mott, Respondent, v. Henry Pritchard, Appellant.
   Judgment reversed and new trial granted, costs to abide event. Opinion by

Barnard, P. J.


author: Pratt’, J.

text:
    John Fallen, Respondent, v. Rosanna Lawler, Appellant.

   Motion denied. Opinion by

Pratt’, J.


text:
    The People of the State of New York ex rel. George T. Burling, Appellant, v. Harrison Hunt and others, Respondents.

   Order affirmed, with costs and disbursements. Opinion by

Pratt, J.;

Dyeman, J., not sitting.


text:
    In the Matter of the Application of George Bechtel.
   Order affirmed, with costs and disbursements. Opinion by

Barnard, P. J.


text:
    John T. Magrath, Respondent, v. Thomas Maher, Appellant.

   Motion to dismiss appeal granted, with ten dollars costs. Opinion by

Barnard, P. J.


author: Barnard, P. J., and Pratt, J.

text:
    Margaret Wrede v. Herman Blattmacher.
   Judgment for plaintiff on submitted case. Opinions by

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


text:
    Enos Lee, Executor, Appellant, v. Amy Horton and others, Appellants.

   Appeal withdrawn.


author: Dyeman, J.

text:
    The People of the State of New York ex rel. Susan Magill, Appellant, v. W. Banta, Jr., Respondent.

   Order filed October 6,1883, and order filed October 22,1883, affirmed, with costs. Opinion by

Dyeman, J.


text:
    Manasseh Briggs and another, Appellants, v. Robert J. Brown, Respondent.

   J udgment and order denying motion to set aside the same affirmed, with costs. Opinion by

Dyeman, J.;

Pratt, J., not sitting.


text:
    The People of the State of New York, Respondent, v. Alexander Jefferson, Appellant.

   Conviction and judgment affirmed. Opinion by

Barnard, P. J.


author: Peatt, J.

text:
    In the Matter of the Estate of Abigail Hall.
   Order of surrogate affirmed, with costs and disbursements. Opinion by

Peatt, J.


text:
    In the Matter of the Petition of Ulrich Maurer.
   Order

■ reversed and child awarded to the mother, with costs and disbursements. Opinion by

Peatt,-J.;

Babnabd, P. J., not sitting.


author: Barnard, P. J.:

text:
    Daniel B. Wesson, Respondent, v. Joseph Marshall, Appellant.
   Order reversed, with costs and disbursements and motion granted, with ten dollars costs. Opinion by

Barnard, P. J.:

Pratt, J., not sitting.


author: Dyxman, J.

text:
    Henry Hoffman, Appellant, v. William S. Marrin and Mary A. Marrin, Respondents, Impleaded, etc.
   Order affirmed, with costs and disbursements. Opinion by

Dyxman, J.


text:
    Edward J. Burrowes, Respondent, v. John M. Peck, Appellant.
   Judgment affirmed, with costs. Opinion by

Pratt, J.


author: Barnard, P. J. and Dyeman, J.

text:
    William S. Peterkin, Respondent, v. Catharine Costello, Appellant, Impleaded, etc.
   Motion denied, with costs. Opinions, ■by

Barnard, P. J. and Dyeman, J.


text:
    Benjamin E. Sullard, Appellant, v. Maria Shrive, Respondent.

   Judgment and order denying new trial affirmed, with costs.. Opinion by

Pratt, J.;

Barnard, P. J., dissenting.


text:
    Julia Mather, as Administratrix, Appellant, v. The New York, Lake Erie and Western Railroad Company, Respondent.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    David Miller, Respondent, v. Daniel W. L. Moore, Appellant.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


author: Dyxman, J.;

text:
    William K. McClees, Respondent, v. John H. Bird, Appellant.
   Judgment and order denying new trial reversed and new trial ’ granted, costs to abide event. ’ Opinion by

Dyxman, J.;

Pratt, J., not sitting.


text:
    Herbert G. Roberts, Appellant, v. The New York, Lake Erie and Western Railroad Company, Respondent.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Eugene Odell and another, Respondents, v. Abraham B. Odell and others, Appellants.
   Part of judgment appealed from affirmed, with costs. Opinion by

Pratt, J.;

Dyxman, J., not sitting.


text:
    Mathew C. Uhrig, Respondent, v. Charles A. Silver, Appellant.
   Judgment and' order denying new trial and order denying reference reversed, and new trial granted, unless plaintiff stipulates to reduce judgment to eighty-two dollars and fifty cents. No costs of appeal. Opinions by

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


author: DyemaN, J.;

text:
    Edward D. Moore, Respondent, v. Julia M. Rhodes and others, Appellants.
   Order affirmed, with costs and disbursements. Opinion by

DyemaN, J.;

Pratt, J., not sitting.


author: BarNArd, P. J.;

text:
    The Duplex Safety Boiler Company, Respondent, v. C. Henry Gorden and others, Appellants.
   Judgment and order denying new trial affirmed, with costs. Opinion by

BarNArd, P. J.;

DyKMAN, J., not sitting.


author: Pratt, J.

text:
    John Braun, Respondent, v. Charles J. Freygang, Appellant.
   Judgment affirmed, with costs. Opinion by

Pratt, J.


text:
    Cornelia M. Stewart, Appellant, v. The Long Island Railroad Company, Respondent.
   Judgment affirmed, with costs. Opinion by

Dyeman, J.


text:
    Stephen Lee and others, Respondents, v. Lewis R. Stegman, as Sheriff, etc., Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.;

Pratt, J., not sitting.


text:
    The Village of Jamaica, Respondent, v. Samuel Fleet, Appellant.
   Judgment affirmed, with costs. Opinion by

Dyeman, J.;

Barnard, P. J., not sitting.


text:
    Thomas H. Tilden, Respondent, v. Louis Hammell, Appellant.

   Order affirmed, with costs and disbursements. Opinion by

Pratt, J.


text:
    Horatio G. Onderdonk, Respondent, v. William Conselyea and others, Appellants.

   Order affirmed, with costs and disbursements. Opinion by

Barnard, P. J.


text:
    Philip Rembe, Respondent, v. The New York, Ontario and Western Railway Company, Appellant.

   Judgment affirmed, with costs. Opinion by

Dyeman, J.;

Barnard, P. J., not sitting.


text:
    Minnie Fuchs, Respondent, v. Michael Meyberg, Appellant.

   Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.;

Dyeman, J., not sitting.


text:
    Henry Knight and others, Respondents, v. The New York and Manhattan Beach Railway Company, Appellant, Impleaded, etc.

   Judgment affirmed, with costs. Opinion by

Pratt, J.


text:
    Reuben L. Fowler and others, Respondents, v. James E. Heller and others, Appellants.

   Judgment affirmed, with costs. Opinion by

Dyeman, J.


text:
    John H. Burroughs and others, Respondents, v. Ellis R. Thomas and others, Appellants.

   Judgment that plaintiffs’ complaint be dismissed as to Mrs. Folsom (plaintiff’s appeal) affirmed, without costs; judgment against defendants Thomas and wife (Thomas and wife’s appeal) affirmed, without costs. Opinion by

Barnard, P. J.;

Pratt, J., not sitting.


text:
    Patrick Fullan, Respondent, v. James F. Darmone, Appellant.
   Judgment affirmed, witli costs. Opinion by

Dyeman, J.


author: Pbatt, J.

text:
    Clark P. Tillinghast, Respondent, v. Mary E. Pratt and others, Appellants.

   Judgment affirmed, with costs. Opinion by

Pbatt, J.


author: Babnabd, P. J.

text:
    Sarah A. Vingut, Appellant, v. The Setauket Presbyterian Church and others, Respondents.

   Judgment affirmed, with costs. Opinion by

Babnabd, P. J.


author: Pbatt, J.;

text:
    Robert Jones, Respondent, v. Abram J. Dittenhoefer, Appellant.

   Judgment and order denying new trial reversed and new trial ordered, costs to abide event. Opinion by

Pbatt, J.;

Babnabd, P. J., dissenting.


author: Dykman, J.;

text:
    Daniel D. Remsen, Appellant, v. Theodore L. Arthur, Respondent.

   Judgment affirmed, with costs. Opinion by

Dykman, J.;

Babnabd, P. J., not sitting.


text:
    John Butler, Respondent, v. Mary S. Butler, Executrix, Appellant.

   Judgment affirmed, with costs. Opinion by

Pbatt, J.


text:
    Eliza A. Wilson, Appellant, v. Eliza A. Munoz, Individually and as Administratrix, etc., Respondent.

   Judgment reversed and new trial granted, costs to abide event. Opinion by

Babnabd, P. J.


text:
    Owen Gilmore, Administrator, etc., Appellant, v. The Long Island Railroad Company, Respondent.

   Order granting new trial modified by inserting a condition in the order granting new trial that the defendant shall pay all the costs included in the judgment. Opinion by

Dykman, J.;

Babnabd, P. J., not sitting.


author: Babnabd, P. J.;

text:
    Adelaide S. Smith, Respondent, v. Patrick Dempsey, Appellant.

   Jugdment and order denying new trial, except upon conditions, affirmed, with costs, and judgment affirmed unconditionally. Opinion by

Babnabd, P. J.;

Pbatt, J., not sitting.


text:
    Tristram Coffin, Appellant, v. Geoegiana T. Lattin and others, Respondents.
   Decree of surrogate reversed and case ordered to be tried by a jury, under section 2561, Code. Order granting allowance also reversed, appellant’s costs to be paid out of estate. Opinion by

Pbatt, J.


author: D'yeman, J.;

text:
    The Mutual Life Insurance Company, Respondent, v. William G. Ackerman and others, Appellants.
   Order affirmed, with costs and disbursements. Opinion by

D'yeman, J.;

Pbatt, J., not sitting.


author: Pbatt and Dykman, JJ.;

text:
    Stephen J. Weaver, Respondent, v. Henry B. Gellert and Maurice Levy, Appellants.
   Judgment affirmed, with costs.Opinions by

Pbatt and Dykman, JJ.;

Babnabd, P. J., not sitting.


text:
    Walter L. Thompson, Executor, etc., Respondent, v. Joseph J. Diddle and others, Appellants.
   Judgment reversed and decree ordered that no title vested in Sidney Jackson. No costs of appeal. Opinion by

Pbatt, J.;

Babnabd, P. J., not sitting.


author: Dyehan, J.;

text:
    Melissa Cornell, Administratrix, etc., Respondent, v. The Bank for Savings in the City of New York, Appellant.
   Judgment affirmed, with costs. Opinion by

Dyehan, J.;

Barnard, P. J., not sitting.


text:
    In the Matter of Isaac H. Shannon and Isaac G. Boyce.
   Ordered that it be referred to John II. Bergen to take proof and report at next term. That copies of the charges be served on the accused attorneys, and that fourteen days’ notice of hearing be given them after the service of the charges. Peter Mitchell is assigned to prosecute the same.


text:
    Frederick F. Muller v. Annie R. Platt.
   Motion denied, with ten dollars costs.


author: Barnard, P. J.

text:
    Alexander Higenbothem, Respondent, v. Charles Hillemeier, Appellant.
   Judgment of County Court reversed and new trial granted, costs to abide event. Order of reference vacated. Opinion by

Barnard, P. J.


author: Brown, J.

text:
    James Henderson, Plaintiff, v. John H. Downing and others, Defendants.

   Judgment affirmed, with- costs. Opinion by

Brown, J.


text:
    George B. Abbott, Public Administrator, etc., v. John S. Curran.
   Motion to dismiss appeal denied, without costs.


text:
    John A. Husson, Respondent, v. William G. Oppenheim, Appellant.

   Motion to dismiss appeal denied; defendant to amend his case to conform to same as settled and to submit at present term.


text:
    Samuel T. Dauchy, Appellant, v. W. H. Tutt, Respondent.

   Motion to dismiss appeal; motion denied, without costs.


text:
    John L. Brewster, Respondent, v. Emma F. Baxter and others, Appellants.

   Motion to dismiss appeal on condition that defendant prints case and submits same during present term.


text:
    Charles E. Gerton, Receiver, etc., Respondent, v. Catherine White, Appellant, Impleaded, etc.

   Motion to dismiss appeal denied, without costs.


text:
    In the Matter of Bullard.
   Motion for reargument denied.


text:
    Theodore H. Benedict and another, as Executors, etc., Plaintiffs, v. William H. Webb, Defendant.
   Judgment for plaintiifs upon submitted case. Opinion by

Barnard, P. J.


author: Davis, P. J.:

text:
    DANIEL GORMAN, Appellant, v. THE SOUTH BOSTON IRON COMPANY, Respondent.

      Place of trial — power of the court to change it— Code of Oivil Procedv/re, secs. 982, 98S, 984 and 987.
    The place of trial of an action brought by a resident of this State against a foreign corporation may be changed by the court from the county where the plaintiff resides, and in which the venue was laid, to another county, when such change will promote the convenience of witnesses and the ends of justice.
    The peremptory language used in sections 982, 983 and 984 of the Code of Civil Procedure, is qualified and controlled by the provisions of section 987 conferring upon the court power to change the place of trial- for the reasons therein specified.
    Appeal from an order made at a Special Term changing the place of trial of this action from the city and county of New York to the county of Dutchess.

      Joseph, B. Reilty, for the appellant.

      Hornee 3D. Hufcut, for the respondent.
   Davis, P. J.:

This action is to recover for personal injuries received by plaintiff while working for defendant in an iron mine in Dutchess county. The plaintiff alleges that the injury was caused by the negligent manner in wbicb tbe shaft of said mine was constructed and protected.

It seems obvious, from tbe nature of tbe action, that it ought to be tried in Dutchess county. But the plaintiff is a resident of the city of New York and the defendant is a foreign corporation organized under the laws of Massachusetts. It is from these facts claimed by the plaintiff that under the provisions of the Code the action “must be fried, ” in the city and county of New York. (Code, §§ 982, 983 and 984.)

Sections 982 and 983 provide where certain actions therein mentioned “must be tried,” and section 984 declares that an action “not specified in the last two sections must be tried in the county in which one of the parties resided at the commencement thereof.” This is claimed to be a peremptory direction which operates to prohibit the court from changing the place of trial for any reason.

But these several sections must be read in connection with section 987, which confers full power upon the court to change the place of trial for any of the reasons therein specified, among which is, “ where the convenience of witnesses and ends of justice will be promoted by the change.” This provision qualifies and controls the peremptory language of the preceding sections.

The defendant made a satisfactory case for the change. It is now objected that the affidavit was not in proper form inasmuch as it' did üot state that the affiant had stated to counsel what he expected to prove by the several witnesses. It does not appear that this objection was taken in the court below. It was a curable one as the affidavit might be corrected and resworn, and the court could have given opportunity to make such correction. The same vice is apparent in the plaintiff’s answering affidavit. As there is nothing to show that it was called to the attention of the court we must assume that it was waived either expressly or cum silembio.

■ The order should be affirmed, with ten dollars costs besides disbursements to abide the event of the action.

Beady and DaNiels, JJ\, concurred.

Order affirmed, with ten dollars costs and disbursements to abide event.


author: •Davis, P. J.:

text:
    In the Matter of the Final Judicial Settlement of the Account of JOSEPH H. MAHAN, as Executor, etc., of ELLEN McGOVERN, Deceased.

      Will — eonsbi'uetion of a devise of a remainder — when words of surmmrshyp will Ite , held to refer to the death of the testator and not of the tenant for life — equitable ■ conversion.

    A testatrix devised two pieces of real estate to her executor, to collect and receive - - the income thereof, or in his discretion to sell and convey the same and invest the proceeds thereof, and out of the income to pay a certain sum for the - support of the testatrix’s mother, and so much as might be necessary for the support and education of her youngest son James; any balance to be paid to her three other children, Thomas, John and Mary. Upon the death of the mother, during the minority of James, the income of a part of the real estate, or its - proceeds, was to he paid to James, and upon his coming of age the said real estate,-or its proceeds, was given to him. The residuary clause was as follows: “And all the rest, residue and remainder of my property and estate I do then give, devise and bequeath to my children, John, Thomas and Maiy, the survivor and survivors of them, share and share alike.”

      Held, that the children named in the residuary clause of the will [took vested estates in remainder immediately upon the death of the testatrix, which would not he divested by their subsequent death during the lifetime of the mother, or the minority of James, and that the'word “then,” as used in the residuary clause, indicated only the time when the estate was to be enjoyed by them.
    That it was the intention of the testatrix that the real estate should be converted into personal property, and that the proceeds of such of it as had been sold should be treated as,personal property in distributing it among the children. ■ and their representatives.
    Appeal from a final decree of the surrogate of the county of ’ New York, upon the final settlement of the accounting of Joseph - H. Mahan, as executor of Ellen McGovern, deceased.

      Wm. J. Kane, for Thomas E. Lyons, appellant.

      Townsend & MaoMahon, for Joseph H. Mahan, executor, etc.,, respondent.

      Wm. F. Riley, guardian ad litem of John Lyons.

      W. J). Bv/rke, for Margaret Lyons, administratrix, etc., respondent. .

      J. K. Bwrion and W. O. Findley, for James R. Langdon,. respondent.
   •Davis, P. J.:

Upon pronouncing tbe decree in tbis case tbe learned surrogate -delivered tbe following opinion:

OPINION OP THE SURROGATE-ESTATE OP ELLEN McGtOVEEN, Deceased.

Rollins, S. — By tbe will of the testatrix two parcels of real • estate situate at Nos. 611 and 613 Eleventh avenue, in tbis city, are • devised in trust to her executor.'

1. Such executor is directed to collect and receive tbe income and profits thereof, or in his discretion to sell and convey tbe same in whole or in part, to invest tbe proceeds and to collect and receive • tbe income and profits of such proceeds, and out of tbe moneys "thus obtained to pay a certain sum for tbe support and maintenance ■ of-tbe mother of the testatrix during her life.

2. The executor is further directed to pay such sums as may be ■necessary or proper for tbe education, support and maintenance of James, tbe youngest child of tbe testatrix.

3. Any balance of income and profits arising during tbe minority of James is directed to be equally divided between Thomas, John and Mary, three other children of tbe testatrix, born of a former marriage.

J. In tbe event of the death of tbe mother of tbe testatrix before her son James shall attain tbe age of twenty-one, tbe will provides that tbe net income and profits of tbe premises 613 Eleventh ..avenue (or of the proceeds thereof, in case tbe same shall then have been sold) shall be applied, after certain deductions therefrom, to the use of James until he shall come of age.

5. Upon the death of the mother of the testatrix and the coming of age of James, the premises 613 Eleventh avenue, or the avails thereof, if the premises have been sold, together with all accumulations, etc., are given to her son James.

6. Then comes the following clause: “ And all the rest, residue and remainder of my property and estate I do then give, devise and bequeath to my children, John, Thomas and Mary, the survivor and survivors and of them share and share alike.”

The mother of the testatrix has since died, and the son James lias come of age. When these events Happened Thomas alone of 'the three residuary beneficiaries was living. Mary, at her death, had left a husband and no issue, and John had died leaving a widow and one son. It is now claimed by Thomas that he is entitled to the entire residuary estate, because he alone “ survived ” the death of the decedent’s mother and the coming of age of James.

Several authorities have been cited in support of this contention. They might be supplemented by very many others. Indeed, in Jarman on Wills (vol. 3 [5th Am. ed.], 588), the following proposition is declared to be fairly deducible from recent English decisions which are there made the subject of a careful and elaborate review: “ One scarcely need hesitate to affirm that the rule which reads a ■gift to survivors simply as applying’ to objects living at the death ■of the testator is confined to those cases in which there is no other period to which survivorship can be referred; and that where such gift is preceded by a life or other prior interest, it takes effect in favor of those who survive the period of distribution and of those only.” The courts of . this State, however, have repeatedly asserted a different doctrine, as is abundantly disclosed by reference to the following list of cases: 1840, Moore v. Lyons (25 Wend., 144); 1845, Williamson v. Field (2 Sandf. Ch., 605 [551]); 1848, Lovett v. Buloid (3 Barb. Ch., 145); 1850, Johnson v. Valentine (4 Sandf., 36); 1871, Scott v. Guernsey (48 N. Y., 106); 1871, Manice v. Manice (43 id., 303); 1873, McKinstry v. Sanders (2 T. & C., 181); 1873, Livingston v. Greene (52 N. Y., 118); 1873, Kelly v. Kelly (61 id., 50); 1874, Hopkins v. Hopkins (1 Hun, 355); 1874, Weed v. Aldrich (2 id., 531); 1877, Bedell v. Guyon (12 id., 396); 1877, Embury v. Sheldon (68 N. Y., 227); 1877, Stevenson v. Lesley (70 id., 512); 1879, Warner v. Durant (76 id., 133); 1882, Robert v. Corning (89 id., 225).

Upon the authorities thus cited, it must be held that the right to take whatever might ultimately prove to be the residuum of this ■ estate vested at the death of the testatrix in the three children whom the will named as her residuary beneficiaries, and that no special intent to the contrary appearing in the will, its reference to survivorship must be construed as referring to the death of the testatrix herself. The word “ then ” in the phrase, which has been ■quoted from her will, I do then give, etc.,” must be construed as indicating the time when the estate in remainder was to be actually enjoyed by the three children, and not the time.when their interest-was to become vested.

There is nothing in the claim of counsel that because the legal title to this estate passed by the will to the executors as trustees, the interest of the remaindermen could not vest at the death of the testatrix. (See Stevenson v. Lesley, 70 N. Y., 512, supra; Robert v. Corning, 89 id., 225, supra.)

It is claimed by the special guai'dian, representing the interests of the infant child of decedent’s son John, that the property to which the will relates must still be regai-ded as realty, and that his ward is entitled to his father’s share therein as his sole heir at law.

This view cannot be sustained. The property was in fact sold soon after decedent’s death. And even if it were otherwise, the power of sale, though in form discretionary, must be regarded, in view of the whole scheme of the will, and especially of the provisions for final distribution of the estate, as evincing an intention-on the part of the testatrix that the realty should be sold and converted into money, and as accordingly constituting an equitable-conversion into personalty from the death of testatrix. (Dodge v. Pond, 23 N. Y., 69.) A decree may be entered in conformity to this decision.”

This opinion contains a correct synopsis of the will, and presents-very clearly the questions that arise upon its construction.

It will be seen that the clause of the will upon which those questions arise is the following: “ And all the rest, residue and remainder of my property and estate I do then give, devise and bequeath to my children, John, Thomas and Mary, the survivor and survivors of them, share and share alike.” And the question is whether by the words survivor and survivors, as used in this clause, the testatrix meant a survivorship of herself, or one that might occur subsequently to her death, between the several children named in the-clause.

Under the English authorities, there would probably be no doubt that the construction should be in favor of a survivorship among the children ; but the numerous cases cited by the learned surrogate seem to settle that the survivorship must be referred to the death of the testatrix. Though strongly inclined to think that in this case-the English construction would be the correct one, the authorities referred to require us to concur with the learned surrogate in the views expressed by him upon this question. Under such a construction, the word “ then,” as used in this clause of the will, is only to be regarded as indicating the time when the estate in remainder was intended to be enjoyed by the children, although for such purposes it was of course surplusage.

The question whether the realty devised should be treated as converted into personalty for the purposes of the will, has been regarded by the learned surrogate as controlled by Dodge v. Pond (23 N. Y., 69), which holds to the effect that where the scheme of the will provides for final distribution of the estate, and evinces an intention on the part of the testator that the realty shall be sold and converted into, money, and such intention-has been carried into effect, the will should be construed as directing an equitable conversion. It seems quite clear that a conversion by sale of the estate in this case was not only in contemplation by the testatrix, but was substantially necessary to accomplish her purposes. The real estate was sold very .soon after her decease, and its proceeds have remained in the form of securities in the hands of her executor. We concur therefore in the views expressed by the surrogate, and adopt his opinion as one correctly disposing of the questions in the case. The decree, therefore should be affirmed, but under the circumstances we think without costs.

Beady and Daniels, JJ., concurred.

Decree affirmed, without costs.


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    In the Matter of the COMMONWEALTH FIRE INSURANCE COMPANY.

      Receiver — when charged with interest upon trust funds used in his own business — orders directing the payment of counsel fees — when they may be assailed upon cm accounting by the receiver — how fcm' the amount of his commissions will be regulated by his management of the trust funds.

      Where, upon the accounting by the receiver of an insolvent insurance company, it appears that he has deposited a portion of the trust funds in his own private bank account, the contestants may prove what amounts he has from time to-time drawn out upon his individual checks for his own purposes, in order that he may be charged with interest upon any of the trust funds so used.
    Upon the accounting of a receiver objection was made to the allowance of three claims, of $5,000 each, paid by the receiver to his counsel, who was also his partner, in pursuance of orders of the Special Term. The first order was. obtained upon the petition of the receiver, the motion being made by the counsel. The other two were obtained upon the motion of the counsel and upon petitions made and verified by him.

      Held, that as no appeal had been taken from the first order it could not be-questioned upon the accounting.
    That the other two orders could, under the circumstances of the case, be collaterally assailed, and that it rested upon the receiver to establish by other satisfactory evidence that the payments made thereunder were justified by the services actually rendered to him by the counsel.
    In determining the amount of the commissions to be allowed to a receiver, the-manner in which he has managed the trust funds is to be considered.
    Appeal from, an order made at a Special Term confirming the report of a referee appointed to take and state the final accounts of a receiver.

      J. McDonald, for John H. Waydell and others, stockholders, appellants.

      Henry H. Tremam, for the receiver, respondent.
   Davis, P. J.:

On the hearing before the referee in this case it was shown by the' receiver himself that he had kept his accounts as receiver in several banks in which he had also kept his private dr personal accounts; and it appeared also that the funds of the receivership had to some considerable extent been credited in his private accounts against. which he had from time to time drawn his individual checks. The ■ books in which these deposit accounts had been kept were offered' in evidence on the part of the appellants for the purpose of ascertaining what amount of the funds of the trust estate had been-, deposited to his private credit, and what amount, if any, he had from time to time drawn upon his individual checks, and wliat amount, if any, had been drawn from time to time also from the amounts deposited by him as receiver, and used by him for his individual business or purposes. The referee excluded this evidence,, holding in effect that the receiver could not be charged with interest pending the business of the receivership and “ prior to his last payment ” upon any of the funds that came into his hands, whether deposited to his private account or not, or used by him for his private purposes. In this the referee was in error. It is well settled. in this State and in England by numerous authorities that all classes-■ of trustees having money belonging to trust estates in their hands are bound to keep the trust funds separate and distinct from moneys of their own ; and if deposited in bank for safe keeping, the money should be deposited to the credit of a separate account in their own names as trustees, so that the funds can be at all times traced and-identified; and if this be not done and the court can see that by thus mingling the trust funds with their own, the trustees have derived any benefit from their use, they are chargeable with interest,, either simple or compound, as the facts developed may requires (Manning v. Manning, 1 Johns. Ch., 527; Ratcliffe v. Graves 1 Vernon, 196; Newton v. Bennet, 1 Bro., 359; Piety v. Stace, 4 Ves., 620; Schieffelin v. Stewart, 1 Johns. Ch., 618; Minuse v. Cox, 5 id., 447; Mumford v. Murray, 6 id., 17; Kellett v. Rathbun, 4 Paige, 110; Ogilvie v. Ogilvie, 1 Bradf., 356; Duffy v. Duncan, 32 Barb., 593; S. C., 35 N. Y., 191; Lansing v. Lansing, 45 Barb., 182.)

In Duffy v. Duncan, the Court'of Appeals after stating the fact that the greater portion of the funds had been kept by one of the-defendants mingled with his private funds on deposit at bank, and that another portion remained in the hands of the other defendant, and was used by him, held that this manner of keeping the fund rendered them liable to be charged with interest, according to the-precedent of the late Court of Chancery, although they made nones

The appellant in this ease therefore had a clear right, as we think, to show, not only the fact that the trust funds had been deposited '"by the receiver in bank to his own credit, but to follow that up, so far as practicable, by showing that they had been drawn out, from time to time, upon his individual check, and the uses to which they have been put when drawn. The bank-books produced by the receiver were competent and proper evidence bearing upon these -questions. They would doubtless have shown what sums were deposited and drawn, from time to time, and the condition of the account at various stages, and would have afforded at least prima facie evidence sufficient to have charged the receiver with interest on the moneys so -drawn, and to have thrown upon him the burden of showing that when drawn, they were in fact used for the purposes of the trust. We think the referee erred, therefore, in excluding the evidence bearing upon this question, and that the court below, for that reason and to that extent, erred in confirming the report.

Upon three separate orders of the Special Term the receiver ■ paid to Mr. Edelstein, as attorney and counsel, who was also the law partner of the receiver, three sums of $5,000 each. The first of these orders was obtained upon the petition of the receiver, Mr. Edelstein, the attorney and counsel, appearing and making the motion at Special Term. The last two orders were obtained upon the petition of the attorney himself. He verified the petitions and -moved thereon, as attorney and counsel for the receiver, that the receiver be directed to' pay him upon each of such applications the sum of $5,000. These orders were made at Special Term and -entered in due form, and show the facts just stat.ed upon their face. Under them the receiver paid to Mr. Edelstein the sum of $15,000. On the hearing before the referee the appellant proposed to surcharge these payments and show by testimony that they were ■ -excessive and ought not to have been made. The referee held that the orders were conclusive upon him, and that the receiver was justified in paying the money under such orders and excluded all inquiry in relation to the propriety of the payment.

Nothing is clearer than that these orders ought not to have been -made, except the fact that they ought to have been reversed on appeal. 'They were in every sense ex parte without the slightest investigation as to their propriety, granted upon the statement of the counsel who asked for tbe money and who also appeared as counsel for tbe receiver in making tbe motion, and without any inquiry as to tbe sufficiency or propriety of tbe services rendered. No appeal was taken from them and no motion has been made to open or vacate either ,of tbe orders. In respect of tbe first of these orders, which was made upon the petition of the receiver himself and on the motion of his counsel, we are inclined to think that the disposition of the receiver is correct, for it cannot be said that an order thus made is an absolute nullity, however irregular or improvident it may have been. Hut the other two we think may be, and should have been, treated as nullities. The attorney, who was the partner of the receiver, made the application for them upon his own petition verified by himself without any appearance or notice to any person but himself; and we think an order made and entered under such circumstances may be assailed collaterally by any person sought to be affected by it. The appellants in this case had no notice of the application for such an order; neither did the receiver, so far as to bind any person whom he can be said to represent, and under the peculiar circumstances we feel it our duty to hold that the orders should not have been received in evidence to establish any right to the moneys directed to be paid by them. It therefore devolved upon the receiver to establish that the payments he had made to the attorney were justified by the services rendered, and the appellants were at liberty upon that question to be heard and to offer such evidence as they deemed proper for the purpose of assailing the correctness of the payments made to the attorney.

The only other point that we think proper to be considered is that of the allowance for' commissions to the receiver. The referee has allowed five per cent upon the total amount of moneys that came into the receiver’s hands. Whether this allowance should have been made must depend to some extent upon the developments that may be disclosed in respect to the use of money by the receiver. It may appear on the further hearing on that subject that the allowance should be far less than has been granted, for in some cases of gross abuse (prior to the act of 1883), the court would be justified in granting no commissions upon funds improperly used while charging a receiver with interest thereon. This question can, therefore, be reserved until the coming in of the additional report bearing upon tbe question first above considered, and for that reason we do not pass definitely upon it now.

The order confirming the report should be so far modified as to deny confirmation so far as respects the question of the use of the moneys deposited in the several banks by the receiver, and the question of his liability for interest thereon and the sums paid under the last two orders; and for the purpose of that inquiry a new reference to a referee, to be named in the order, should be ordered to take proofs in relation to the manner of the deposits in the several banks, the use of the moneys, the extent to which the same have been used for any purposes outside of the trust, and the question whether interest should be chargeable thereon, and if so te what amount, and respecting the money paid under said orders.

Beady and Dahiels, JJ., concurred.

Order modified as directed in opinion.


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    In the Matter of the Application of the UNION FERRY COMPANY OF BROOKLYN, to Acquire Title to a Certain Pier, etc.

      Constitution — grant of an exclusive privilege to a prwate corporation by a private or looalbill — Constitution, a/rt. 3, sec. 18 —1882, chap. 259 — Incorporation of prior la/ws into a subsequent act — Constitution, art. 3, see. 17.
    The first section of chapter 259 of 1882, providing additional ferry slips in the' city of New York, declares that “the pier known and designated as pier number two, in the East river in the city of New York, and the land under water lying easterly of the said pier to the westerly side of pier number three, shall, after the 15th day of June, 1882, be devoted and set apart for the purposes of additional ferry slip accommodation for the ferries operated and running between Whitehall street, in the city of New York, and Atlantic avenue, in the city of Brooklyn, known as the Union Ferry Company.”

      Held, that the act was a local or private one and void, as it granted an exclusive privilege to a private corporation in violation of the provisions of section 18 of article 3 of the Constitution.
    The act provided that in case the ferry company should be unable to purchase the pier and land under water by agreement with the owners thereof, it might acquire title thereto in the same manner and by the proceedings provided by law for acquiring title to lands for railroad use by railroad corporations, so far as the same were applicable thereto, except that certain allegations, specifically mentioned, might be omitted from the petition.

      Semble, that the reference to the provisions of the railroad act did not violate section 17 of article 3 of the Constitution declaring that “ no act shall he passed which shall provide that any existing law, or any part thereof, shall be made or deemed part of the said act, or which shall enact that any existiag law or any part thereof shall be applicable, except by inserting it in such act.” (Per Davis, P. J.)
    Appeal from an order made at a Special Term, denying tbe prayer of tbe petition, asking for tbe appointment of commissioners, to ascertain tbe compensation to be paid to tbe owners and other-persons for property in tbe city of New York.

      B. B. Sillimcm and John B. Bevelm, for tbe petitioner, appellant,.

      E. T. Gerry, for EL T. Gerry, respondent. .

      Jno. B. Pine, for E. T. Gerry, respondent.

      George G. Be Witt, Jr., for Robert and Ogden Goelet, respondents..

      Hackett <& Williams, for E. A. Yarick, respondent.

      Jackson <& Marline, for EL De Janon, respondent.

      Jno. M. Mari/m, for Henrietta Martin, respondent.

      Abraham Vcm Samtooord, for Eugene Lawrence and otbersy respondents.
   Davis, P. J.:

Tbe appeal in this case involves tbe constitutionality of chapter 259 of the Laws of 1882. Tbe title of tbe act is, “An act to provide for additional ferry slips and facilities in New York city for tbe ferries operated and running between Whitehall street in tbe city of New York and tbe city of Brooklyn.”

Tbe first section of the act declares that “ tbe pier known and designated as pier number two in tbe East river, in tbe city of New York, and the land under watfer lying easterly of tbe said pier to tbe westerly side of pier number three, shall, after tbe 15th day of June, 1882, be devoted and set apart for tbe purposes of additional ferry slip accommodation for tbe ferries operated and running between Whitehall street in tbe city of New York and Atlantic avenue in the city of Brooklyn, known as the Union Ferry Company.” .This section is a legislative condemnation of the pier and land under water to the uses of the Union Ferry Company. The legislature determines for itself the necessity of such use and forecloses all inquiry on that subject. It operates to preclude any other ferry company or party from acquiring any interest therein, and leaves no question open as to whether or not any public interest requires that the property should be exclusively devoted and set apart for the benefit of the particular ferry company mentioned.

The next section provides that before using the said pier number two, or the waters easterly thereof to pier number three, the lessees of the aforesaid ferries are hereby authorized and required to purchase or acquire the right to use the said pier number two and the land under water described in the first section of this act, provided they can agree with the owner or owners and lessee or lessees on the price to be paid therefor, and should the lessees of said ferries be unable, within sixty days after the passage of this act, to agree with the said owner or owners and lessee or lessees for the purchase of or the right to use the aforesaid pier and land under water, they shall acquire title to the same in the manner and by the proceedings provided by law for acquiring title to lands for railroad use by railroad corporations, so far as the same are applicable thereto, except that in any of the proceedings authorized by this section it shall not be necessary that the petition to the Supreme Court shall make any allegations of, or any reference to, any incorporation or capital stock, nor to any surveys or maps further than to describe the property proposed to be taken, nor of the filing of any certificate of location.”

It is claimed - that this part of the act is obnoxious to article 3 of section 18 of the Constitution of the State which provides, among other things, that the legislature shall not pass a private or local bill granting to any private corporation, association, or individual, any exclusive privilege, immunity or franchise whatever; and also provides that the legislature shall pass general laws providing for the cases mentioned in that section.

The act in question is in our judgment a private or local bill within the meaning of the article and section above referred to. It is private in that it confers all the rights it creates upon a single corporation known as tlie Union Ferry Company. It is local in that it relates to specific property in a specified location, and lias no operation upon any other property or locality in the State. Certainly there would be no difficulty in the legislature passing a general law providing for the acquisition for ferry purposes by any ferry company, of lands necessary for its use, and determining in what manner the acquisition should be effectuated and the title acquired, and compensation ascertained and made to the owners of the property to be condemned. Under such an act there would, of course, be no difficulty in the Union Ferry Company taking steps to acquire the lands described in 'this act by setting forth the necessity for its acquisition, and the uses and purposes for which it is necessary, and the inability to acquire the same by purchase, or otherwise than by condemnation, and proceedings could then be had to complete the acquisition by ascertaining their value and making compensation to the respective owners. But this act is in no. sense a general one. It is special and extraordinary in that it proceeds to condemn property by legislative fiat, without any other determination of the necessity for its use for ferry purposes, or even for its use by the particular ferry company to which it is devoted and set apart.” All inquiry upon that subject is excluded by the language of the section. The Union Ferry Company is a private corporation precisely in the same sense in which railroad and turnpike corporations are private. Its stock is owned and it is managed by individuals for their private and personal emolument, and its character is not changed by the fact that its ferries are for the use of the public. Its relations to the public as a trading corporation are precisely those of the other bodies corporate just mentioned.

The inhibition of the Constitution above referred to is applicable therefore to the Union Ferry Company. The act under consideration undertakes to grant to such company the exclusive privilege of acquiring title to and using for ferry purposes the property which the first section condemns to that use. This is, in our judgment, the granting to a private corporation of an exclusive privilege within the prohibition of the Constitution of the State. The act is, therefore, unconstitutional and void.

It is not necessary to consider the other questions presented in the case. The court below was of opinion that the act was obnoxious to section 17 of article 3 of the Constitution, which declares that no act shall be passed which shall provide that any-existing law or any part thereof shall be made or deemed part of the said act, or which shall enact that any existing law, or any part thereof, shall be applicable, except by inserting it in such act.”

On this question there may well be a difference of opinion. Our inclination is to think that the question is disposed of by the Court of Appeals in People ex rel. Commissioners v. Banks (67 N. Y., 568), and that the reference to the general railroad act for a mere course of procedure in taking the steps to acquire title to the real estate would not render the act invalid because the ¡procedure was not embodied at length in the act itself.

But without passing upon that question, we think it our duty to hold that the Special Term was correct in its disposition of the case upon the proposition of constitutionality first considered by it.

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

Beady and Daniels, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.