author: Barnard, P. J.:

text:
    JOSHUA M. VAN COTT, Respondent, v. JOHN PRENTICE and Others, Executors, etc., of JOHN H. PRENTICE, Deceased, Appellants.

      Trust deed — when separate instruments are to be construed as one — what delivery of a trust deed is valid — amendments to complaint — an action against persons as executors cannot be changed to one against them as individuals.

    March. 4, 1871, the defendants’ testator John H. Prentice executed a trust deed, •under seal, by which he conveyed certain securities to the plaintiff, in trust to collect the interest and income thereof, and to invest and reinvest the principal, and to pay over the interest as Prentice should direct. The .principal of the fund was to be held by the plaintiff, subject to the directions of Prentice contained in a private and confidential paper then delivered in a sealed envelope to the plaintiff, to be opened by him at Prentice’s death, if he should survive the latter, said principal to be subject in the meantime to Prentice’s direction and pleasure, and to be returned to Prentice in the event that he survived the plaintiff, and absolutely subject to Prentice’s direction and control until the event of his death.
    In this confidential paper it was directed that the interest be paid to one King, to be paid by King to persons named in such confidential written instructions which were delivered both to King and to the plaintiff. The directions for the - disposition of the principal were valid, though unknown to the plaintiff at the time of the execution of the deed. The securities were returned to Prentice May, 1871, who invested, reinvested and collected the income thereof under a power of attorney from the plaintiff, to whom the income was paid over. Prentice died without having altered the instructions or revoked the trust.
    In this action, brought by the plaintiff to recover the securities or their value from the defendants as executors of Prentice:

      Held, that the written confidential communication was to be treated as part of the trust deed.
    That there was a good, and valid delivery of the deed, sufficient to vest the title of the securities in the trustee, at the time of its execution.
    That the plaintiff was entitled to recover.
    The defendants were sued as executors, and the complaint alleged and the answer admitted that they held the securities in their representative capacity. After the trial the complaint was amended, upon the plaintiff’s motion, so as to make the action one against the defendants individually, and a judgment against them as individuals was entered.

      Held, that the court erred in allowing the amendment to be made.
    Appeal from a judgment, entered upon an order setting aside a verdict rendered in favor of the defendants and directing a verdict and judgment to be entered in favor of the plaintiff; also from an order amending the complaint by striking out the word “ as ” from the title thereof, and granting leave to the plaintiff to enter judgment against the defendants personally.
    The plaintiff, as trustee of an express trust, sued in replevin to recover trust securities, or the value thereof, wrongfully withheld from him by the defendants. The trust is constituted by a deed under seal, and two writings therein referred to, dated and delivered by the settler to the trustee, March é, 1871. The trust securities were delivered to the trustee, simultaneously with the three trust instruments, more particularly described in the following opinion. On May 1, 1871, the trastee. executed and delivered to the settler a power of attorney to collect the principal and interest accruing upon the trust securities, which consisted of bonds and mortgages, and took from him a receipt for the power of attorney and the securities, which were then delivered to him. The settler acted under this power of attorney until his death, March 13, 1881,. collecting and paying over to the trustee the interest accruing on the securities, and with the concurrence of the trustee reinvesting-the proceeds of the principal paid on the'securities, in numbered and registered city bonds of Brooklyn, which he from time to time reported to the trustee as reinvestments made and held for the trust,, and paying over to the trustee the interest accruing on tie reinvestments as he had theretofore paid over the interest accruing on the primary securities. After the settler’s decease the trustee exhibited to the defendants the trust instruments and accounts and demanded a delivery to him of the securities. The defendants refused to-deliver the securities. The trust was to hold the securities and their reinvestments and proceeds, to collect and pay over the income (one-third thereof to Mrs. Howland and two-thirds in equal shares to -her three children) until the youngest child should come of age, and then to divide the capital, one-third to her and two-thirds to the-three children, or the survivors or survivor of them. At the date of the trust deed the three children were five, eight and fourteen years of age. In the trust instruments it was provided that the-settler should have a supervision of the reinvestments; that if any proceeding should be taken at law or in equity by the beneficiaries or others in hostility to the trust, it should ipso facto determine that if the trustee should die before the settler the securities should be returned to him, and that the settler reserved a power of revocation by “express testamentary or other disposition thereof in. accordance with the condition of said trust.” There was no evi-' dence of a revocation or that either event had happened on which the trust was to terminate.

      Almon Goodwin and Aa/ron J. Vanderpoel. for the appellants.

      Alex. H. Van Gott, for the respondent.
   Barnard, P. J.:

The amendment made after the trial by which the defendants were made to answer individually to the plaintiff’s claims cannot be sustained. The defendants were sned as executors of John H. Prentice, deceased. The sole question disclosed by the case is whether the title to certain securities is iñ the plaintiff or in the defendants as executors of the deceased. While it may be within the power of the court to amend the complaint after the trial, such amendment should.not be made when the effect is to charge the defendants personally in respect to a dispute which is carried on by them solely for the benefit of the estate which they respresent. The cases cited to justify the amendment, in the Court of Appeals have no relevancy.

Ferrin v. Myrick (41 N. Y., 851); and Patterson v. Patterson, (59 id., 574), refer to contracts made by executors after the testator’s death. The expenditures made in these cases were chargeable by the executors to those estates, and it was held that they were personally liable upon the contracts. The theory of those cases is that the executors’ contract must be performed by them personally because they cannot bind their estate. In this case the executors are bound to assert their claim to the property as part of their intestate’s assets. The question is novel and doubtful, and it would be unjust to impose on the executor the duty of personally becoming responsible for the cost of the litigation. They have not converted the property to their own use. This order should therefore be reversed. The complaint avers that the defendants hold the securities in question “ in their representative capacity ” and in no other way. The answer admits this and avers title in the .estate which they represent.

The remaining questions in the ease arise upon the merits. The consideration of this question involves no disputed question ■of fact'. The facts are mainly, if not entirely, presented upon writings which were executed by the deceased. John H. Prentice, on the 4th of March, 1871, made a conveyance of certain securities to J. M. Van Cott in trust to collect and receive interest and the principal thereon, to reinvest the principal from time to time and to pay the interest as directed by Prentice from time to time.” A private and sealed paper was delivered with the conveyance and the conveyance declared that Van Cott was to open the papers “ at my death if he shall survive me, ” and if the papers were not recalled, or if the deceased John H. Prentice should not otherwise order during his life. '

The paper decrees that it is voluntary, and the fact is an admitted one in the case. With the trust deed or instrument, and the sealed papers, there was delivered to Van Cott, a paper directing the payment of the interest to Clarence King with direction to King to pay it to Mrs. Howland for the use of herself one-third, and for the use of her children as to the remaining two-thirds. This direction -was stated in these instructions “ to be subject to the provisions of the said deed of trust.” The interest under this paper was paid to King during the life of J ohn H. Prentice, and he died in March, 1881, leaving a last will, but the will did not mention the trust deed. Prentice himself during his life managed the trust fund under a sealed power of attorney from Yan Cott,' the interest being paid to Yan Cott, and by him sent to King. The secret instructions which were to be opened by Yan Cott were under the seal of the deceased. It will be seen that the possession of Mr. Yan Cott, during the life of Prentice, was that of attorney merely, with the probable right to sue upon the securities in his own name. Prentice had the power of revocation, and of direction of a change in the application of principal or interest, “until the event-of my death.” If Yan Cott died first, the paper defining the duty of the trustee was to be returned to Mr. Prentice. Mr. Prentice also reserved the right to direct and approve of the investment and reinvestment of the securities. There was no time during Prentice’s life, when as between him and the trustee an absolute title was vested in the trustee beyond the power of revocation. Yan Cott held a nominal title of Prentice’s securities to be used as Prentice directed, and even the title was to be returned on request of Prentice. No question as to the fund so far as its distribution was made in Prentice’s life is material. The distribution was good whether the title was in deceased or in Yan Cott. The real question therefore is (as I view it) whether a deed which is dependent," first, on its not being revoked, but with full power reserved in it to revoke it during the life of the grantor, and second, on the trastees surviving the donor, and third, upon the conditions not contained in the deed but in the secret instructions that the deed be not revoked by a last will, is good to convey the property when the trustee in fact does survive the testator and when in fact there was no revocation either in testator’s lifetime or by will? The case is a new one. No authority is presented with essentially similar facts. A deed with a power of revocation not exercised is to be treated as irrevocable. There are no questions arising as between the creditors of Prentice and the plaintiff. If the secret papers had been embodied in the deed the case would be free from difficulty. The trustee knew nothing of the contents of the sealed paper and it was not designed by Prentice that he should know until after his death. It might happen that the trustee could not obey the instructions and he could not be compelled to execute what he had not agreed to do with knowledge of what it was. Did the trustee’s acceptance of the trust, after he knew of the contents, date from the opening of the paper or of the date of the-deed? Was the written instruction delivered in fact until after it was opened, when it was too late ? These questions are suggested by the facts proven.

Keeping in mind that the question is one solely between the parties-to the deed, I think the secret paper was a part of the deed and that it speaks as of the date of the deed. A nominal title was put in the plaintiff to hold during testator’s life, and there-was an agreement exacted of the trustee that he would pay over the fund as directed in a paper then delivered sealed. This certainly binds Prentice, as ■it is his act and is complete as to him. The trustee holds the title not for himself. Whose is it ? It is not in Prentice if the transfer was complete and the trusts legal. The question, therefore, finally rests upon the fact whether or not the secret paper was a part of the transfer as against Prentice. If it had been intended to be executed in his lifetime the fact that the grantee did not know its nature at. the delivery of the deed would make no difference if it was in point-of fact executed. If the delivery was complete in Prentice’s life the papers could be opened and executed after his death as against those claiming under his will, wliich makes a general distribution of property and without revoking this trust.

The order amending the complaint should be reversed.

The judgment otherwise should be affirmed, costs to respondent, on the merits, and to the defendants on the appeal from the order.

Pratt, J., concurred.

Order setting aside verdict for defendants, and directing judgment-against the defendants on the merits, judgment for recovery of securities in favor of plaintiff against defendants, affirmed, with costs. Order of 18th March, 1884, amending title of the action, reversed, with costs and disbursements.


source: Caselaw Access Project

license: Public Domain

text:
    ISAAC WELLS, Plaintiff, v. JOHN M. STEARNS, Trustee under Will of GEORGE WELLS, Deceased, Defendant.

      Witt — effect of a decree admitting it to probate — the correctness of the adjudication is only renewable on a/ppeal.

    The will, together with a codicil thereto, of the plaintiff’s father was duly proved and admitted to probate on October 19, 1854. As so proved and admitted to probate it contained a clause, written below the signatures of the testator and of the witnesses to the codicil, which changed an absolute estate given to the plaintiff by the will to a trust estate for his life. After more than thirty years had elapsed-from the probate of the will, during which the trust‘estate had been treated as validly created, the plaintiff brought this action to recover the possession of the property free from the trust.

      Held, that as the adjudication that the said clause formed a part of the will, under which it was admitted to probate, had not been appealed from, it became the law of this case and prevented the plaintiff from maintaining the action.
    Controversy submitted upon an agreed statement of facts.
    The plaintiff sought to recover a share of his father’s estate which he claimed was given to him by his will. The will and a codicil thereto, dated respectively November 5, 1849, and April 13, 1853, were duly proved and admitted to probate by the surrogate of the county of New York on October 19, 1854.

      J. Milton Stearns, Jr., for the plaintiff.

      John M. Stearns, defendant in person.
   Barnard, P. J.:

George Wells the father of the plaintiff died in 1854. He left a last will and codicil thereto. By the will he gave to the plaintiff one-fifth of his property after the termination of a life estate therein to his widow. The gift included both real and personal property. After the signature of the testator and. the attestation clause, and after the signatures of the witnesses, there is written under this codicil this writing: ‘‘A. I also do direct - and it is my will that so much of my property as I. had given to my son Isaac Wells, be held in trust by my son John B. Wells, my sole executor, to be by him invested and reinvested and apply the profits and income thereof to the use of my said son Isaac during his natural life, and after his decease to transfer and pay over the same to his next of kin and heirs-at-law.” This clause only reduces the absolute gift in the will to a life estate to be held in trust by the executor John M. Stearns as the present trustee of the fund. The plaintiff now claims from him the present payment of the sum, upon the ground that the part of the codicil written after the signature of the testator forms no part of the will of deceased. We think he is not entitled to receive it. The will proven included this writing as part of it, and if the adjudication was erroneous it became without an appeal the law of the case even if it be not the law of the land.

The plaintiff was notified of the probate and did not appear. He took no appeal and for over thirty years the trust has been acted upon as good and valid. It cannot now be assailed collaterally upon the ground that the decision was wrong in respect to the portion of the paper now disputed.

Judgpient for defendant, upon submitted case, without costs.

Dykman and Pratt, JJ., concurred.

Judgment for defendant, upon submitted case, without costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. MARY R. and SARAH E. BRUSH, Appellants, v. JOHN R. BROWN, Respondent.

      Custody of child— the rights and interests of the child an'e to control.

    The mother of a child having died a few weeks after its birth, the father placed the child with relatives of the mother, who nursed and cared for it until it had attained the age of seven years. After the child had been cared for while very delicate and sickly, the father gave a written promise to the relatives by which he agreed that the child should never be taken from them. Subsequently, the child" having been allowed to visit the father, the latter refused to allow him to return to his relatives. Upon the return to a writ of habeas corpus, procured by the relatives, the court refused to receive evidence tending to show that the present wife of the father was an improper person to have charge of the child, and that his home was an improper place in which to bring up a young child.

      Reid, that as the decision as to the custody of the child was to be determined by its rights and interests the court erred in rejecting the evidence.

      Appeal from an order, made at a Special Term, dismissing a writ of habeas corpus heretofore granted herein.

      B. F. Tracy, for the appellants.

      Joseph U. Ohoate and Charles O. Beaman, for the respondent.
   Barnard, P. J.:

It is not clear from the authorities that a father may recede from an éngagfernent in respect to his'child, made with one who has received the child under it. The papers showed that the child was born in March, 1874, and that the mother lived but a few weeks after. That the infant was placed by the father with the appellants, two ladies, who lived in Suffolk county and who were distant relatives of the deceased mother.- These ladies procured a nurse and by their care and affection probably saved the child’s life, as he was disposed to be delicate, which he did not outgrow until within two years and he is now about seven years of age. In the fall of 1874, the father gave a written promise and agreement that he would never take the child from the ladies who were bringing him up. The paper recites the father’s gratitude to the ladies and acknowledges the justice of a claim based upon the fact that those who under'the circumstances were caring for their deceased relative’s child would probably become intensely attached to him. The gift, of the child is made “ upon my honor” as expressed by the father. Under these papers the child has been, watched, nourished, clothed and instructed until he has reached an engaging age and what was expected has in fact been realized. The ladies are attached to the child. The child looks upon them as his parents. After this lapse of time the father requests a visit from the boy. It was made and the father fails to return him. The ladies manifest anxiety and the boy pines to go home. The father resents this conduct as an injury to him and he announces to the ladies that although he is conscious that it will cause them “much unhappiness” he means to guide the boy “to the good and true ’•’ thereafter. The father has been relieved from trouble and expense by means of his agreement and the ladies have been made anxious by the great responsibility as to the child and have devoted time and money based upon this promise. If the subject were anything but a child it would not be averred to be the correct 'and legal thing to avoid the engagement because it was against public policy and against the paternal right. I do not think these cases call for such a rule. They hold that the father’s right is paramount as to the custody of the child. That as against the mother all things being equal his right is the best. That an agree ment between husband and wife as to the custody of the child is bad. It is not necessary to decide this question upon the present record. It may be stated as a general rule in this state that the rights and interest of the child are paramount upon the question of the custody of the child. (Wilcox v. Wilcox, 14 N. Y., 576.) This question includes the home of the ladies from which the boy goes. That is clearly seen from the case. It includes also the home of the father. The Special Term refused to receive proof that would show it to be an improper home to which a child of seven and upwards should go. The glimpse obtained from the evidence is not favorable. The father was the cause of the divorce of a former husband of his present wife by her adultery with him. After the divorce he married her. Proof is refused which would show or tend to show that the present wife is very intemperate in some cases, at times to such an extent as to be helpless. Proof tending to show what this home is in respect to assemblages and practices in what is known as spiritualism is also refused. The proof of the character of the respondent’s home should have been received.

The order should therefore be reversed, and the case remitted to the Special Term so that this evidence may be received.

Dykman and Pratt, JJ., concurred.

Order reversed and proceedings remitted to Special Term, to take evidence as to the fact that the father’s house is an improper place for the boy.


author: Barnard, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. WILLIAM DENNIN, Appellant.

      Playing hall on Sunday — when not a violation of Penal Oode — Penal Oode, sees. 259, 262, 265.
    The defendant and two other men played ball on Sunday in private grounds with the consent of the owner thereof. They simply pitched the ball from one to another and made no noise.

      Held, that their playing was not prohibited by section 265 of the Penal Oode, which provides that “ all shooting, hunting, fishing, playing, * * * upon the first day of the week, and all noise disturbing the peace of the day, are , prohibited.”
    To constitute a violation of that section the “ playing ” must seriously interrupt the repose of the community on Sunday.
    Appeal from a judgment of the Court of Sessions of Queens county convicting the appellant of a violation of section 265 of the Penal Ood >.

      Michael J. Kelly, for the appellant.

      John Fleming, district attorney, for The People.
   Barnard, J.:

This case involves no disputed fact. Section 265 of the Penal Code provides, that all shooting, hunting, fishing, playing, horse racing, gaming, or other public sports, exercises, pastimes or shows, upon the first day of the week, and all noise disturbing the peace of the day are prohibited.” ,

Three men, the defendant being one of them, on the first day of the week were found by a policeman playing base ball in private grounds, with the consent of the owner; the defendant pitched the ball to one of the other two; ” the defendant and others did not make any noise; ” there was nothing other than that ball playing, which was a violation of - the law.”

While the words of the section prohibit all playing ” on Sunday, it is necessary to take into consideration two other sections of the Code, in respect to the same subject, and which are plainly explanatory of the meaning of this section 265, already cited. Section 259 is as follows: The first day of the week being by general consent set apart for rest and religious uses, the law prohibits the doing on that day of certain acts hereinafter specified, which are serious interruptions of the repose and religious liberty of the community.”

Section 262 is as follows: The following acts, as explained in the next six sections, are those forbidden to be done on the first day of the week, except in a work of necessity or charity:

First. Servile labor.

Second. Public sports and shows.

Third. Trades, manufactures and mechanical employments.

Fourth. Public traffic.

Fifth. Serving process.

Prom the three sections it is manifest that the thing done must be a serious interruption of the repose of the community on Sunday. The thing prohibited must be to a greater or lesser extent public. The proof in the present case fails to make out an offense. The grounds were private. The defendant was not even a trespasser, as his entry thereon was by permission of the owner. There was no noise. There was no assembly of persons beyond the three persons, and the offense was made up entirely by one person, the defendant, throwing the ball to another person to catch. If the third person was a party to the play of ball, throwing it would make no difference. The essential character of the crime was wanting. There was nothing done to disturb the repose of the community. That is in terms declared to be the object of the law.

The conviction should be reversed.

Dykman and Pratt, JJ., concurred.

Conviction reversed.


text:
    ELKANAH M. WASHBURN, Respondent, v. THE VILLAGE OF MOUNT KISCO, Appellant.

      Bridges — liability of towns to repair bridges in a milage —1870, ehap. 291.
    A village, incorporated under chapter 291 of 1870, is not bound to repair bridges-situated within its corporate limits unless it elects to do so. In the absence of such election the town continues to be bound to repair such bridges, and is liable to any person injured by its neglect to keep them in a safe condition.
    Appeal from a judgment in favor of the plaintiff, entered upon the submission of this action, without process, upon an agreed statement of facts.

      David H. Hunt, for the appellant.

      Mkanah M. Washburn, for the respondent.
   Barnard, P. J.:

The primary duty of keeping bridges in repair is imposed upon the town. It is the duty of town commissioners of highways to keep the bridges safe and in good repair. (1 E. S., 160.) The defendant is a village corporation carved out of the territory of New Castle and incorporated under chapter 291 of the Laws of 1870. The plaintiff’s horse was killed by reason of a defect in a bridge which was within .the limits of the village, and the question is whether the village or town is liable for the injury. The facts agreed upon state in fact no question. No negligence is admitted and it is not agreed-that the plaintiff was free from negligence, but as the parties seem to have assumed these facts it is necessary to examine the village charter act and determine whether or not the duty of keeping up and in a safe condition the bridges, is taken- from the town and imposed upon the village under, circumstances like these in respect to defendant. The act permits the incorporation “ of any part of any town ” with certain population. (Title 1, § 1.) The trustees have-power “ to make and repair all bridges which may be necessary within the bounds of the village.” (Title 3, § 1, subd. 25.)

The village thus incorporated is a separate highway district, “ exempt from the superintendence of any one except the board of trustees who shall be commissioners of highways in and for such village, and shall have all the powers of commissioners of highways of towns in the state, subject to this act.” By title 8, section 27, it is shown what the duty in respect to bridges really is intended to be, and what the powers over roads and bridges in villages, is subject to.

Seo. 27. “Nothing in this act giving the boards of trustees of a village power to make and repair bridges within the village bounds, or making them commissioners of highways, or making the territory of the village a separate highway district, subject to the board of trustees alone, shall be construed as divesting the commissioners of highways for any town in which a bridge may be located of power •or control over the same, or as relieving such town from the expensfe of constructing or repairing any bridge within its bounds, though such bridge may be within the territorial limits of a village incorporated under this act. In case the board of trustees of any village, so incorporated, shall think proper to construct ■or repair, and shall construct or repair,-any bridge within the corporate limits, then the expense of such work shall be a charge on the taxable property of the village and be paid out of the corporate funds.”

The village is not bound to repair bridges. The stipulation •shows that it did not do so before the accident. The town duty continued in full force. The breach of duty must be enforced against the town and not the village. The village could repair it at its own expense, but it was not bound to do so, and thus no duty absolute or imperative is cast upon the village. It had, at best, a right, to spend its own money in repairing a bridge, which it never exercised. The town commissioners were still bound to keep safe the bridge if the village did not elect to do so, and the town commissioners were bound to see to it that the bridge should never become unfit for travel by the public.

The judgment on the submitted case should be reversed, and judgment rendered that the village was not liable to the plaintiff upon the facts agreed upon in the submitted case, with costs of appeal.

Beatt, J.,- concurred ; Dykman, J., not sitting.

Judgment for plaintiff upon submitted case reversed, with costs •of appeal, and judgment rendered that defendant is not liable.


text:
    In the Matter of the Estate of JESSE S. HULSE, Deceased.

      Will — when an estate vests — when a legacy lapses.

    A testator directed, that the income of his residuary estate should be paid to his wife Sarah J. Hulse “during her natural life. If she should have heirs of my body they to be supported and educated out of it, and at the age of twenty-one years to have one-half of the property, and at the death of. the said Sarah J. the remainder. And I further direct that if, at the death of my wife Sarah J., there should be no heirs of *my body living, that 1 bequeath the proceeds of the real estate to Nathan Emmet Hulse and Charles S. Hulse (equally), sons of my brother Silas Hulse. ” A -posthumous child was born of the wife, who attained the age of twenty-one years, and thereafter and on June 31,1865, died without issue. Nathan Emmet Hulse died July 17, 1864, after the son had become of age. The widow died April 29,1884. Upon an application by the administrators of Nathan to recover one-half of the fund:
    Held, that the application was properly denied upon the ground that the legacy had lapsed.

      Semble, that the whole estate vested in' the son upon his attaining the age of twenty-one years, the actual possession of one-half being postponed until the death of the widow. (Per Barnard, P. J.)
    Appeal from an order of the surrogate of Orange county; dismissing an application made by the administrators of Nathan Emmet Hulse, deceased.
    Jesse S. Hulse died May 15,1844, léaving a last will, dated January 17, 1844, which was admitted to probate by the surrogate of Orange county August 20, 1844. The provisions of said will relating to the disposition of the testator’s property are as follows :

      First. “ I give and bequeath unto my beloved wife, Sarah J. Hulse, all my personal property for her own benefit, except a large eight-day brass clock, which, in default of my having heirs of my own body, I bequeath at her death to Nathan Emmet Hulse, son of my brother Silas Hulse. I further direct that the executors of this will may, at their discretion, and they are hereby empowered to dispose of .the farm on which the tavern and store-house is situated; also the house, lot and tannery adjoining; also a lot of thirteen acres known as the Neely lot, all situate in Smith village, town of Minisink, county of Orange, 'the proceeds to be placed at interest and disposed of as follows, viz: My beloved wife, Sarah J., to have the proceeds' during her natural life, if she should have heirs of my body, they to be supported and educated out of it, and at the age "of twenty-one years to have one-half of the property, and at the death of the said Sarah J. the remainder. And I further direct that if at the death of my wife Sai-ah J. there should be no heirs of my body living, that I bequeath the proceeds of the real estate to Nathan Emmet Hulse and Charles S. Hulse (equally), sons of my brother Silas ‘Hulse.”
    He appointing his said wife and Benjamin Horton and John E. Dubois executors.
    His wife Sarah J. was enciente at the date of the will, and on the 1.3th day of June, 1844, twenty-nine days after the testator’s death, she had a son, an heir of the testator’s body, who lived to be twenty-one years of age and died June 21, 1865, leaving his mother, said Sarah J., his only heir and next of kin. Said Nathan Emmet Hulse died July 1T, 1864, and said Sarah J., widow of said testator, died April 29, 1884, having had no other child except said son, who was named Smith Hulse. On the Jth day of February, 1866, the executors under said will settled their account before the surrogate of, Orange county, having previously sold the real estate, realizing therefrom $3,000. Charles S. Hulse, as administrator of said Nathan Emmet Hulse, claimed that the bequest or provision in his favor was a vested one and did not lapse by his intestate’s death, demanded its payment out of the estate of said Sarah J., and applied to the surrogate for a direction to that effect. His application was denied by the surrogate upon the ground that the legacy had lapsed.

      Manny c& Mead, for Charles S. Hulse, administrator, appellant.

      B. R. Champion^, for F. H. Beeves, administrator, respondent.

      H. A. Wadsworth, for John E. Dubois, executor, respondent.
   Barnard, P. J.:

As to one-half of the estate there seems to be no real question. Jesse S. Hulse died in 1844 leaving a will. The fund derived from certain lands was to be held by the executors, and the proceeds paid to his widow during her life. “ If she should have heirs of my body they to be supported and educated out of it, and at the age of twenty-one years to have one-half of the property, and at the death of the said Sarah J. the remainder.” The widow had a posthumous child born a few weeks after testator’s death. This child lived to be over twenty-one and clearly became entitled to one-half of the fund. The will further provides that “if at the death of my wife Sarah J. there should be no heirs of my body living, that I bequeath the proceeds of the real estate to Nathan Emmet Hulse and Charles S. Hulse (equally), sons of my brother Silas Hulse.” Nathan Emmet Hulse died before the testator’s child did, and there are presented two questions:

Did testator’s child take a vested estate when he became twenty-one in any part of the fund, and, if so, in what part ?

Did Nathan Emmet Hulse take anything under the will, his death having occurred while testator’s son was living and before the widow’s death? The testator never anticipated the state of facts which existed at the death of his widow. If the testator had a child he intended that child to take his property entirely, one-hplf at the age Of twenty-one and the remaining half at his mother’s death. He did not survive his mother, but there is nothing in the language which postpones the vesting of the entire estate a moment beyond the age of twenty-one years. If it were not for the words of bequest to the nephews the whole estate would belong to the son, possession only postponed as to one-half to the time of the death of the mother. I am inclined to .think that the son took all; notwithstanding the bequest over in case “ there should be no heirs of my body living” at his widow’s death. The two bequests cannot stand entirely. If the son gets half the nephew cannot get the whole at the widow’s death, unless there was no son who reached the age of twenty-one years. There was sucb a son and he did arrive at that age. The gift to the son is absolute, partly in fact delivered in possession. There are no words indicating an intent to reduce the gift to a life estate. No bequest over is made, except in default of heirs of his body. There is, therefore, no reason to believe that, if the testator had a child reach twenty-one years of age, he did not intend to give him the whole estate. The bequest over is of the whole estate, and one of the nephews died before testator’s child. He took .nothing, for two reasons : Eirst. The testator’s child had a fee liable to be divested • by death it is true, but was not so divested at the death of- the nephew. The child of the testator must die, and the widow also, before this deceased nephew could take. Neither contingency happened. A legacy can lapse when it is not vested by reason of the death of the legatee, even after the testator’s death. Nathan Emmet Hulse had no interest in the estate of the deceased, and the petition was, therefore, properly dismissed.

The judgment of the surrogate should be affirmed, with costs.

Dykman and Pjratt, JJ., concurred.

Order of surrogate affirmed, with costs.


author: Barnard, P. J. : Dykman, J.

text:
    FRANK L. WARRIN, Appellant, v. FRANCIS B. BALDWIN, Respondent.

      Sale of lands by a county treaswrer — 1878, aha/p. 226 — his fees and, expenses chargeable to a town need not be audited by the town auditors — action by a taxpayer to restrain waste —1881, chap. 531.
    Chapter 226 of 1878 authorizes the county treasurer of Queen’s county to advertise and sell lands for the non-payment of taxes assessed thereon, and provides that if no bids be made for any of them “the county treasurer shall strike off such lots or parcels of land to the town in which such lands are located and assessed fortheterm of 1,000 years.” “The county treasurer’s fees and expense of publication, as provided by this act, on all lots or parcels struck off to any town, shall be a charge against said town.” The county treasurer was entitled by the act to a fee of one dollar and fifty cents on each lot sold.

      Meld, that the county treasurer was not obliged to submit his claim for the fees and expenses of selling lots struck off to the town to the examination and audit of the board of town auditors thereof, but that he was entitled to charge the same to the town upon his books and pay himself therefor from the funds of the town in his hands. (Dykman, J., dissenting.)
    That an action by a taxpayer, under chapter 531 of 1881, to restrain the county treasurer from so charging the amount of his fees and expenses to one of the towns could not be maintained. (Dykman, J., dissenting.)
    Appeal from a judgment in favor of the defendant, entered upon the trial of this action by the court upon an agreed statement of facts.
    This is an action by a taxpayer of the town of Newtown, Queens county, to restrain the defendant, who is the county treasurer, of Queens county, from charging up against the town and paying to himself, without audit or allowance- by any competent body or board, certain fees allowed to him by statute, for striking off to the town at the annual tax sale such lots as are not bidden for by actual purchasers.
    The sale of lands for unpaid taxes in the county of Queens is regulated by a special statute (chap. 268, Laws of 1877, amended by chap. 226, Laws of 1878). The act provides that all lots offered at the annual sale for which no bids are received shall be struck down to the town in which they are located for the term of 1,000 years, and that “ the county treasurer’s fees and expense of publication as provided by this act, on all lots or parcels struck off to any town, shall be a charge against said town.” He was by the act entitled to receive a fee of one dollar and fifty cents per lot, besides the expenses of advertising. It has been the habit and custom of the county treasurer to charge against the town of Newtown, and to pay himself the fees provided by statute immediately after the conclusion of the sale,-and it has not been his custom to submit his account for such fees to the board of town auditors, or to any other body or board for examination, audit and allowance, except as when he annually submits all his books and accounts to the board of supervisors for examination. The plaintiff contended that the county treasurer’s charge against the town should be collected in the same way that is provided by statute for the collection of other town charges, viz.: By submission to the board of town, auditors, approval by them and transmission to the board of supervisors and inclusion in the tax levy. This action was tried uppn an agreed statement of facts and determined in favor of the defendant.

      Francis M. Scott, for the appellant.

      John J. Armstrong, for the respondent.
   Barnard, P. J. :

By chapter 531, Laws of 1881, a taxpayer is entitled to maintain an action “ to prevent any illegal official act ” against certain officers, and “ to prevent waste or injury to any property,” which is represented by the officers. The defendant is one of the officers named in the act. By chapter 226, Laws of 1878, the county treasurer is bound to advertise the lands in Queens county upon which the tax assessed has not been paid. The treasurer under this kw put up at auction, as required b$ the law, certain lands of Newtown. There were no bidders. In such case the act provides as follows : “ On the day fixed for the sale of said lands, should no bid be' made for any of the lots or parcels that may be offered for sale, the county treasurer shall strike off such lots or parcels of land to the town in which such lands are located and assessed, for the term of one thousand years.” The county treasurer’s fees on the sale of each lot is established at one dollar and fifty cents, and the same is made “ a charge against said towns.” The' treasurer struck off the lots to the town of Newtown. He charged for no sale which he did not make. He did not overcharge. He received the exact sum due him from the funds of the town, by charging the fees so due him against the town of Newtown. The complaint is formed upon the basis that he ought to have presented the bill for audit to the board of audit•ors. ' It is thus seen that there is no question of waste or injury to property, but only of a formal audit - of a legal claim which the board of town auditors haven’t any right to diminish. There is no need or requirement for a formal audit. The only one assigned is that the supervisors cannot know what to collect of the town without a bill of town allowances. The books of the county treasurer will always show the dealings between the treasurer and'the towns, and the amount of charges for sale being absolutely established by law, it becomes a charge against the town by force of the legislative act. This has been' the custom of the officers who have sold lands for taxes, and the town auditors have never been called on to give additional authority to the act of the legislature. I think, therefore, there were neither illegality or waste established-

The judgment should be affirmed, with costs.

Pratt, J., concurred.

Dykman, J.

(dissenting):

The sales of land for unpaid taxes in the county of Queens are made by the county treasurer of that county under special statutes, which provide, among other things, that where no bids are received for lots offered for sale they shall be struck down to the town in which they are located. For striking off such lots the county treasurer is entitled to a fee of one dollar and fifty cents a lot, besides the expenses of advertising, which is made a charge against the town.

It has been the custom of the defendant, who is the county treas* urer of Queens county, to charge these fees, so allowed to him, against the town without submitting his account and claim therefor to the town auditors for examination and allowance, and to pay himself his fees and charges in that way. This action is brought to prohibit that practice, but the complaint relates especially to the town of Newtown, in that county. The facts are agreed upon and the trial court dismissed the complaint.

We cannot take the same view of the case. It is against all the precedents in analogous cases to permit the defendant to liquidate his own claim against the different towns for official fees. It is the safe and fundamental rule prevalent 'in all cases that unliquidated demands against towns and counties in this State must be submitted to the proper boards for examination and allowance, especially all officers whose compensation depends upon statutory fees must sub* mit their claims to the proper boards of auditors constituted by law for their examination. The defendant occupies no position above these rules of law. It is true his fees are prescribed by statute, but so are the fees of sheriffs, constables, commissioners of highway and many other officers. That fact constitutes no reason why the claims of the defendant should not be submitted to the town auditors. His expenses are not fixed, neither are the number of lots specified for which he may charge, and the number should be submitted to the scrutiny of the examining auditors, and there is nothing in the statutes exempting him from such scrutiny. The simple fact that he is the bookkeeper of the county and has accounts with" the different towns, and receives money from which he can pay his own claims, so far from constituting an argument in his favor, rather operates the other way. His bills should be audited and paid in the usual manner.

Neither have we any trouble in permitting the plaintiff to maintain this action.

The judgment should be reversed and a new trial granted, with costs to abide the event.

Judgment affirmed, with costs.


author: Dykman, J.:

text:
    THOMAS BUCK, Appellant, v. Mrs. ALEXANDER MOORE, Respondent.

      Damages occasioned by the act of a dog — when the owner is not liable therefor

    While the defendant’s dog was following her along the street it ran into aa adjoining yard and there seized and killed the plaintiffs dog.

      Held, that as the act of the defendant’s dog was not attributable to any active or .passive volition on the part of the defendant, she was not liable for.the damages thereby occasioned to the plaintiff.
    Appeal from a judgment of‘the County Court of Queens county, reversing a judgment of a justice oft the peace in favor of the plaintiff.

      Albert W. Seaman, for the appellant.

      M. Compton, for the respondent.
   Dykman, J.:

The plaintiff in this action was the owner of a small dog. The defendant was the owner of a large dog. While the defendant’s dog was following her along the street, he went into- the yard of the plaintiff and seized his dog and- killed it. The action is for damage resulting from the death of the plaintiff’s dog. , A judgment was obtained by the plaintiff in the court of a justice of the peace where the action was commenced and tried, which was reversed by the county court on appeal, and now the plaintiff has appealed to this court.

It must be noticed in the outset that the action is not for trespass on the plaintiff’s close, aggravated by the mischief done thereon, but is simply for the damage sustained by the death of the dog. The case, therefore, seems to fall within rule three of Moak’s Underhill on Torts. “ No person is legally responsible for any act or omission not attributable to active or passive volition on his part.” In other language, no person is responsible for an involuntary injury. If, while following its owner along a highway, a dog discovers game and follows’ it, the owner is not liable. By the common law the owner of a dog that worried and killed sheep was not responsible for the damage done, and it required a statute in our State to create such liability. The reason of this rule was that the killing and worrying of sheep could not be anticipated or expected to result from a dog running at large. That rule applies here. The defendant could not know or believe that her dog would kill or injure the dog of this plaintiff, simply because she permitted her dog to follow her along the street.

The judgment of the county court should be affirmed, with costs.

Barnard, P. J., concurred in the result.

Judgment of County Court affirmed, with costs.


text:
    ISAAC SCHLICHTER, Assignee, etc., of LUTHER DOCK, Respondent, v. SOUTH BROOKLYN SAW-MILL COMPANY and Others, Appellants.

      Order of substitution — Code of Civil Procedure, sec. 757 — an assignee may be substituted as plaintiff although a-counter-claim has been pleaded.

    In this action, brought to foreclose a mortgage, the defendant set up a counter. claim in his answer. After issue joined the plaintiff died and letters testamentary were issued to his widow, who thereafter assigned the mortgage to one Sclflichter. Upon the motion of the latter an order was made substituting him as plaintiff in the action and continuing the same.

      Meld, that it was proper to make the order; that the defendant could apply his counter-claim to the satisfaction of the plaintiff’s demand, and recover the balance, if any, in an action against the executors of the original plaintiff.
    Appeal from an order, made at a Special Term, directing that the action be continued by one Isaac Schlichter as plaintiff in the place and stead of Bather Hock, deceased.

      John Winslow, for the appellants.

      Tunis G. Bergen, for the respondent Schlichter.
   Dykman, J.:

■ This suit was brought for the foreclosure of a mortgage,,and when it had proceeded to issue the plaintiff died. He left a last will and testament, in which his wife was named as the sole executrix, which was proved and admitted to probate. His wife received letters testamentary on her husband’s will and became the sole executrix thereunder. After that she assigned the bond and mortgage to Isaac- Schlichter by a deed of assignment duly executed. Then Schlichter made a motion at Special Term to be substituted as plaintiff in the action, and continue the same in his name. The motion was granted and this appeal is from that order. The answer of the defendant sets up a counter-claim. The provision of section 757 of the present Code is, that in case of the death of a sole plaintiff or a sole defendant, if the cause of action survives, the court must, upon a motion, compel the action to be continued by or against his representative or successor in interest. This case falls exactly into this statute. The cause of action survives the plaintiff and the applicant Schlichter is the successor to his interest, and the revival of the action and its continuance in his name is plainly contemplated.

The continuation of an action in the name of an assignee or successor in interest of the original plaintiff is no new practice, and is not antagonistic to any legal principle, even where the defendant has a counter-claim. The only effect of the assignment of the cause of action, before or after suit, is to restrict the use of the counterclaim to the extinguishment of the cause of action and leave the balance thereof to be enforced against the original party or his estate. This engenders no hardship or injustice, for the holder of the counter-claim has for it the same security he had before the assignment of the cause of action. He may use sufficient of it in the action to extinguish the cause of action, and then obtain a judgment in a new suit for the balance. The only difference being that if there had been no assignment the judgment for the balance would result in the same action. _ The provision of the Code referred to above seems to be mandatory, and to confer on the successor in interest to the original plaintiff in this action the legal right to substitution in his place as plaintiff. (Greene v. Martine, 21 Hun, 140.)

The order should be affirmed, with costs and disbursements.

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

Order substituting Schlichter as plaintiff affirmed, with costs and disbursements.


author: Dykman, J. -:

text:
    UNITED STATES TRUST COMPANY, Appellant, v. THE NEW YORK, WEST SHORE AND BUFFALO RAILWAY COMPANY, Defendant and Appellant. (WARREN CURRIER and JAMES F. SUTTON, Petitioners for Appoinment of Receiver, Respondents.)

      Receivers of a corporation — in what district the application for the appointment mast he made — 1883, chap. 378 — to what receivers it applies. '
    Tn this action, brought to foreclose a mortgage given by the defendant, a railroad company, to the plaintiff, as a trustee for bondholders, a receiver of the property covered by the mortgage was appointed upon an application made, upon notice, at a Special Term of the Supreme Court held at Newburgh, in Orange county, in the second judicial district. The principal office of the defendant corporation being located in the first judicial district, it was claimed that the order appointing the receiver was void as violating the provisions of chapter 378 of 1883, which requires every application for the appointment of a receiver of a corporation to be made at a Special Term held in the judicial district in which the principal business office of the corporation was located at the time of the commencement of the action.

      Held, that the objection to the order could not be sustained.
    The act of 1883 relates only to statutory receivers appointed to wind up corporations and distribute their assets, not to receivers appointed, in actions for the foreclosure of a mortgage, to hold the property and receive the profits thereof until the entry of the final judgment.
    Appeal from an order, made at a Special Term held in the city of New York, adjudging void an order appointing a receiver of the defendant’s property, made at a Special Term held at Newburgh, in Orange county.
    The order appealed from also appointed receivers of the property of the defendant described in the mortgage, to foreclose which this action was brought.

      William A. W. Stewart, for the appellant.

      John L. Hill, for the respondents.
   Dykman, J. -:

This action was commenced to foreclose a mortgage made by the railway company to the plaintiff, as trustee, for the holders of bonds secured thereby, and the venue is laid in Orange county. At the commencement of the action an application was made on notice to the Special Term of the Supreme Court at Newburgh, in Orange county, for the appointment of a receiver of the property embraced in, the mortgage, and Horace Russell and Theodore Houston were there appointed such receivers. After that, on the application of two bondholders who were not parties to the action, an order was obtained requiring the parties to the action and the receivers to show cause at a Special Term of the Supreme Court in New York city why the order appointing the receivers should not be held void, and why some suitable person should not be appointed receiver. That motion was made and granted, and this appeal comes from that order. "We are, therefore, required to decide between the two orders. If the first was efficatious and within the jurisdiction and power of the court, then the order appealed from is erroneous, because it can only be sustained on the ground of the absolute invalidity of the first order. The application for it was based on that foundation, and it can stand on no other. It-is claimed that the first order appointing the receivers is void, because it contravenes the provisions of section 1 of chapter 378 of the Laws of 1883. The language of that section is this : “ Every application hereafter •made for the appointment of a receiver of a corporation shall be made at a Special Term of the court held in and for the judicial district in which the principal business office of the corporation was located at the commencement of the action wherein such receiver is appointed, or in and for a county adjoining such district; and any order appointing a receiver otherwise made shall be void.” The principal business office of this railway corporation in question here was located in the first judicial district, and Orange county is in the second; therefore it is insisted that the order appointing receivers made in Orange county is void under the statute.

We cannot yield assent to the argument. The statute of 1883 relates only to statutory receivers to wind up a corporation and distribute its assets, and who become substantially statutory assignees. The act is entitled “An act in relation to receivers of corporations,” and its whole scope and contemplation relates, solely tó such receivers. It contains nothing in conflict with the general statutes relating to the venue of actions or motions, and only prescribes rules and regulations in relation to receivers of corporations, such as the courts appoint in actions to close up their affairs. So viewed, it is in entire harmony with all other statutes and presents no inconsistency.. The venue in this action was properly laid in Orange county, and all motions and applications in the same may be made in that county. In equity actions, applications for the appointment of receivers are not uncommon, and in actions to foreclose real estate mortgages, where the security is weak or inadequate, the court may appoint a receiver of the income and profits of the property covered by the mortgage, in anticipation of the judgment and sale, and such appointments are made on general principles of equity independent of all statutes. That was done in this case by the order made at Newburgh. The receivers there appointed were not receivers of the corporation, they were simply receivers pendente lite of the property embraced in the mortgage, and while it happens in this case that the mortgage comprehends all the property of the company, that is an independent fact which does .not affect the principle. Their appointment has the same effect it would have if the mortgage embraced but half of the property, or covered only a farm of land owned by the company in Orange county. They were, common-law receivers for the protection of the property, simply its custodians; they were clothed with no power to sell it, and they acquired no title to it; they could not close up the affairs of the company or distribute its assets; they simply hold possession of the property and receive the profits to await the final judgment in the action, and abide the order of the court to the end that it may be appropriated in accordance therewith. An order for the appointment of such a receiver may yet be made, in an action to foreclose a mortgage, in any county where the same is triable, notwithstanding the statute of 1883.

The order- should be reversed, with costs and disbursements.

Barnard, P. J., and Pratt, J.,' concurred.

Order reversed, with costs and disbursement?


author: Pratt, J.:

text:
    JANE M. SIMS, Respondent, v. THE NEW YORK COLLEGE OF DENTISTRY, Appellant.

      Practice — failure to appoint a guardian for an infant plaintiff does not deprime the i ourt of jurisdiction of the action

    Upon the trial of this action the defendant first learned, from the cross-examination of the plaintiff, that at the time the action was commenced she was a minor, although she had become of age before the time of the trial.

      Meld, that the omission to appoint a guardian for her did not affect the jurisdiction of the court, and that a motion to dismiss the complaint was properly-denied. ,
    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 damages result'ng to the plaintiff from the alleged negligence and malpractice of a dentist, an officer of the defendant. Upon the trial the cross-examination of the plaintiff disclosed the fact that the plaintiff was a minor at the time she commenced the action, and did not attain her majority until some months thereafter. No prior knowledge of this fact upon the part of the defendant was shown. The defendant moved to dismiss the case, but the motion was denied.

      M. Molí. Walsh, for the appellant.

      J. L. Overfield and K G. Schafer, for the respondent.
   Pratt, J.:

At the time of the commencement of this action the plaintiff was a minor, but she became of age prior to the trial of the case. No guardian was appointed. This omission did not affect the jurisdiction of the court. The omission to have a guardian appointed at the time of the commencement of the action was an irregularity merely. By pleading to the merits this irregularity was waived. When the plaintiff attained her majority the necessity for a guardian ceased. (Smart v. Haring, 14 Hun, 276; Rutter v. Puckhofer, 9 Bosw., 639.) The plaintiff must therefore be regarded as rechas m Gloria. No question was made on the trial that the persons in charge of the infirmary were not the servants and agents of the defendant. It was admitted that the college and infirmary were one and the same. The sole question in the case was one of malpractice; whether the plaintiff’s injuries and sufferings were caused by unskillful treatment on the part of the dentist who operated upon her. There is ample evidence in the case to sustain the finding of the jury, and the instructions of the learned judge upon the trial were clear and full upon the question involved.

"We find no error in the case and the judgment must be affirmed^ with costs.

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

Judgment and order denying new trial affirmed, with costs


text:
    ALPHONSE OULMAN, Respondent, v. GEORGE SCHMIDT, Appellant.

      Practice in Justices’ Court — when the plaintiff cannot recover without proving his claim — 1881, cha/p. 414— Code of Civil Proced/wre, sec. 2891.
    In this action, which was commenced in a justice’s court by the service of a summons and a verified complaint, as provided by chapter 414 of 1881, a demurrer interposed by the defendant was overruled with leave to him to answer. The defendant having failed to answer, judgment was entered for the plaintiff for the full amount claimed in the complaint, without any proof thereof being furnished

      Meld,, that this was error; that the act of 1881 only authorizes the entry of a judgment without proof, 'when the defendant fails to answer or demur. When he does either, section 2891 of the Code of Civil Procedure becomes applicable and prevents the plaintiff from recovering without proving his case.
    Appeal from a judgment of the County Court of Kings county, entered upon'an order affirming a judgment in favor of the plaintiff, rendered by a justice of the peace of the city of Brooklyn.

      John Hess, for the appellant.

      Charles. I. Brower, for the respondent.
   Pratt, J.:

This action was commenced in a justice’s court by the service upon the defendant of a summons and a sworn complaint. The defendant demurred to the complaint upon the ground that two causes of action were improperly joined. The justice overruled the v demurrer with leave to the defendant to answer. The defendant failed to answer and the justice without any proof as to the plaintiffs claim rendered judgment against the defendant for the full amount claimed in the complaint. The County Court affirmed the judgment. Section 2891 of the Code provides as follows: “If a defendant fails to appear and answer, the plaintiff cannot recover without proving his case.” By chapter 414, Laws of 1881, it is provided, that the plaintiff may make a written complaint setting forth his cause.'of action, which being verified may be served with the summons upon the defendant.

Section 3 provides that in case the defendant fails to answer or demur to said complaint, he shall be deemed to have admitted the .allegations of the complaint as true, and the court shall upon due proof of service thereof enter judgment for the plaintiff and against the defendant for the amount demanded in such complaint without further proof. •

Section 2891 of the Code is not repealed by the act of 1881, and must be read in connection with section 3 of the act above quoted, and such construction given to them that both may stand if that be possible.

Under the Code the plaintiff could not take judgment in any case without proving his case. This rule is now so far modified that in certain actions, if a sworn complaint is served upon the defendant, the plaintiff may take judgment without further proof, provided the defendant fails to answer or demur, but if he does either then the case is governed by the Code, the plaintiff must prove his claim. It is true that a demurrer admits all the allegations of the complaint to be true, and it may be said that proof in such cases is not required. The answer to this is,-that it is entirely within the power of the legislature to prescribe-any practice they choose. It has been said that the plaintiff must prove his claim in all cases except those stated in the act of 18S1. If the defendant answer, the claim must be proven. The justice therefore had no power to enter judgment in this case without proof, and the judgment of the justice must be reversed for this reason. But there is still another fatal objection. The cause of actions was not one described in chapter 414, Laws of 1881, as it was not solely a cause of action “arising on contract for the recovery of money only or on an account.” It was not a case falling directly within the Code before referred to.

The judgment must be reversed, with costs.

Dykman, J., concurred; Barnard, P. J., for affirmance.

Judgment of County Court and that of justice reversed, with ■costs.


author: Pratt, J.: Dykman, J.,

text:
    JOHN BELFORD, Appellant, v. THE CANADA SHIPPING COMPANY (Limited), Respondent.

      Negligence — master and servant — duty of the master to keep his premises in a safe condition.

    The plaintiff, a carpenter, was employed in erecting some cattle stalls on the upper or hurricane deck of a steamer belonging to the defendant. On stopping work in the evening he went with the assistant engineer to the deck below where his tools were placed by the engineer in the boiler to hide them over night. On returning to the vessel the next morning the plaintiff, while walking along the lower deck to get his tools, fell into a bunker hole and sustained injuries, to recover the damages resulting from which this action was brought.

      Held, that the plaintiff went upon the lower deck for his own purposes and at .his own risk, and that for the injuries thereby sustained the defendant was not liable.
    Appeal from a judgment in favor of the defendant, entered upon an order dismissing the complaint made at the circuit.

      Frederic A. Ward, for the appellant.

      Edward 8. Hubbe and Dr. Lorenzo, Dllo, for the respondent.
   Pratt, J.:

This is an action for negligence, and the complaint was dismissed below, after the plaintiff had put in his evidence and rested. The . only question to be determined is whether the complaint was properly dismissed. It appears that plaintiff was a carpenter residing in Brooklyn, and on the 8th of January, 1883, employed in erecting some cattle stalls on the upper or hurricane deck of the steamer ■“Lake Winnipeg,” belonging to the defendant. At about five p. m. on the eighth of January he knocked off worlr, and before going home met the assistant engineer of the steamer and went with him to the deck below or main deck to hide away his tools over night. The engineer put them inside the boiler and told him that he would find them there the following morning. At seven a. m. on the next day plaintiff returned to the vessel to continue his work on the hurricane deck, and went again to the engine-room on the deck below to get his tools from where they were hidden the night before, and in walking along the lower or main deck fell into a bunker hole, which was then open, and was injured. It was no part of the duty of the assistant engineer to assist the plaintiff in hiding his tools, or show him where to hide them for the night, therefore the plaintiff voluntarily and at his own risk went to a part of the vessel where no duty called him and where the defendant could not presume he would be likely to go. The plaintiff’s work was upon the spar deck, and if he chose for his own purposes to go upon other parts of the vessel he went there upon his own risk. It would be a harsh and unreasonable rule, to hold that if a person was employed to work upon a certain portion of a vessel that all other use of the remainder must be suspended in anticipation that the workman might travel to parts where no duty called him, and thereby receive some injury. So1 long as the master keeps the places where the workman is employed, or likely to go in a safe condition, he discharges his whole duty in that regard. It has been held that the owner of a vessel is not bound to close the'hatches at night so as to protect from injury a trespasser, or one who has no right or license to be on the vessel. (Severy v. Nickerson, 120 Mass., 306; Zoebisch v. Tarbell, 10 Allen, 385.) It cannot be said that the plaintiff was invited or licensed to go forward to the boiler, or that he went there in any connection with the work he was employed to do.

I fail to see any negligence or breach of duty on the part of the defendant causing the injury to the plaintiff. The case must turn upon the single point whether there was either an expressed or implied invitation by the defendant to the plaintiff to go where he was injured, and there being no conflict of evidence it was a question of law for the trial judge to determine. To say that every portion of a vessel over 300 feet long must be guarded and kept safe, because at a particular place a workman is employed and may assume to leave his work and travel over the whole ship where no duty calls him is unreasonable. We think the decision below is well sustained by principle and authority. ’

Judgment affirmed, with costs.

Dykman, J.,

concurred;

Barnard, P. J., dissented on the ground that plaintiff was lawfully on the vessel and entitled to protection against negligence.

“Judgment affirmed, with costs.


author: Dykman, J.: Pratt, J.

text:
    FREDERICK E. HUBBELL by JOHN W. HUBBELL, his Guardian ad Litem, Respondent, v. THE CITY OF YONKERS, Appellant.

      Negligence — liability of a city to one injured by reason of the dmg&rous plan of construction of a street.

    While the plaintiff was being driven by a friend along Linden street, in the city of Yonkers, the horse became frightened at an approaching bicycle, started aside, became unmanageable, and finally crossed the sidewalk and went’ over an embankment, some twelve feet high, carrying the wagon and the plaintiff with him. Linden street was a public highway and had been constructed some ten years before in accordance with plans and specifications adopted by the common council of the city, under the authority conferred upon it by its charter. The plans did not provide for any railing along the embankment where the horse went over and no railing had ever been put there. The carriage-way of the street was about thirty feet wide, and the street had a sidewalk on each side ten feet wide.
    In an action brought by the plaintiff to recover damages for the injuries he had sustained:

      Held, that a verdict in his favor would be sustained. (Pratt, J., dissenting.)
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of á 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.

      Joseph F. Dak/, for the appellant.

      Edwin It. Keyes, for the respondent.
   Dykman, J.:

The power of municipal corporations to make improvements may or may not be exerted, and for a failure to proceed or an erroneous estimate of the requirements of the public, no civil action can be maintained. The reason being that the duty imposed is judicial in its character, requiring the exercise of deliberation and judgment.

But when action has been taken and judgment has been exercised and an improvement has been made, then a duty is imposed on the municipality to continue the same in order and repair. This is a ministerial duty and for its violation or neglect a civil action may be sustained for damages resulting therefrom. (Hines v. City of Lockport, 50 N. Y., 236; Sewell v. Cohoes, 15 N. Y., 45; Gillespie v. Newburgh, 54 N. Y., 468 ; Kennedy v. Mayor, 73 N. Y., 365.)

The municipal corporations of this state have power under their charters to command the means of keeping the streets within their limits in a safe condition for use, and hence it is their duty to do so, and for a failure in its performance from which injury results a civil action may be maintained. (Ehrgott v. Mayor, 96 N. Y., 264.) While it is true that negligence cannot be assigned against a municipal corporation for the design or plan of an improvement, the public may at the same time require care in its construction and management.

In this case the question relates to the construction of the street, and its subsequent condition. The complaint is that an embankment on its side was left entirely unprotected, and the absence of such guards rendered the accident possible, or rather that the accident resulted from such absence. The plaintiff was riding along Linden street in the city of Yonkers, in a wagon with a friend, who was driving, when the horse became frightened by an approaching bicycle. He started suddenly aside and became unmanageable; the driver lost control of him and the horse and wagon went over an embankment and the plaintiff was carried with them and received the in juries complained of. Linden street is one of the public streets of the city of Yonkers, and has been made about ten years. Its construction was in accordance with plans adopted by the common council of the city which specified no railing or guard along the edge of the embankment.

Now, the claim on behalf of the city is that the street was constructed according to a plan adopted by the common council, and therefore no liability can attach to the city, even though the plan was defective, and the injury resulted therefrom, and to maintain this position the doctrine is invoked which has already been noticed. That doctrine is salutary and just when properly applied, as it was in Urquhart v. Ogdensburgh (91 N. Y., 67). There the defect complained of was the slopes in the sidewalk from the building to-the street, which was about seven and three-eighth inches in a width of six and one-third feet. Ice had formed on this sidewalk suddenly, from water carelessly spilled just previous to the accident which caused the injury. There was no allegation or suggestion of negligence in the prosecution of the work, or that the sidewalk -was laid unskillfully, or that it was defective at the time of the accident; so that the entire complaint was against the exercise of the judicial discretion of the city authorities in establishing' the grade of the sidewalk, and the decision was that no civil action could be maintained in such a. case. The case of Mills v. Brooklyn (32 N. Y., 489), was decided on the same principle. But these cases do not decide that a municipal corporation may escape liability for a defective construction of an improvement, merely because it is made in accordance with an approved plan. If a bridge over a ravine or a water stream was built by a city or village, and left without a side guard, or a street was constructed on a causeway high above the natural level of the ground, and left without side rails or protection, responsibility for injuries resulting from their absence could not be avoided by showing that they were made in accordance with the plans. Such a doctrine, carried to its legitimate conclusion and result, might release all municipal corporations from the duty imposed on them to maintain the streets within their limits in a safe condition for travel in the usual modes. Here we have the case of a public street built ten feet in the air, and left for ten years unprotected, and the city desires to escape liability because the original plan of the improvement called for no side protection. The effort cannot succeed. If the public had this right to require guards for the sides of this 'street, and the failure to erect them was negligence, the city is liable for injuries resulting from their absence. But it is further claimed that the injury in this case resulted from the fright of the horse, and not from the. defect in the street.' In the examination of this question, it must be assumed that it was the duty of the city to place guards along the sides of the streetthat the failure" to do so was negligence, and that there was no negligence in the management of the horse. The duty imposed on municipal corporations to keep the streets in a condition of safety has reference to all the ordinary requirements of the public streets, and highways are made for travel in all the ordinary modes. The animals usually employed on the roads are horses, and the road-beds are constructed with reference to their use, but ordinary care requires also that the streets and highways shall be constructed and maintained with reference to all the ordinary exigencies arising thereon. Horses do not reason, and are liable to sudden frights, and in their fear and terror they often start suddenly aside from the path of ordinary travel. But a horse is not beyond control when he merely shies or suddenly starts, and when an accident results from a negligent defect in a highway, the fact that the horse was at the time unmanageable furnishes no defense to an action for the resulting injury.

It was the duty of the defendant to protect the public in the ordinary use of its streets, or at least to use reasonable diligence to do so, and it would be quite too illiberal to hold that the fright of the horse in this case was the cause of the accident. It is a case where it may be said two causes combined to produce the injury, both of which were in their nature proximate. One was the culparble defect in the street, and the other the fright of the horse, for which neither the plaintiff or defendant were responsible. The defendant is, therefore, liable, because the injury would not have ' been sustained but for such defect. (Ring v. Cohoes, 77 N. Y., 88; Gillespie v. Newburgh, supra; Kennedy v. Mayor, supra.)

In the consideration of this case the power and duty of the defendant to keep its streets in order for travel has been assumed. No question has been made of this, and there can be none under its charter.

The judgment should therefore be affirmed, with costs.

Barnard, P. J., concurrred.

Pratt, J.

(dissenting):

The facts in this case are undisputed. On May 26, 1883, the plaintiff was driving with a friend along Linden street, in the city of Yonkers, when they met a bicycle, at which the horse became so frightened that the driver lost control of him, and while so frightened left the road bed,' stepped over the gutter and curb and over an embankment, carrying with him the plaintiff.

Linden street is a public highway, and was built by the city of Yonkers in 1873 according to plans and specifications adopted by its common council, which provided for no railing at the point where the horses went over the embankment. The carriage road is thirty feet wide and each sidewalk ten feet wide. Between the carriageway and the sidewalk there is a curb 'and gutter; the curb is eight inches high. The carriage-way was macadamized and in good condition. There is no claim that the runaway or the injury was caused by any defect in the carriage-way.

The embankment was about twelve feet high, and no railing or guard had ever been erected on the sides thereof. The plaintiff is an infant and sues by a guardian, appointed by the city judge of Yonkers, to commence an action in the Supreme Court. We think the appointment of John W. Hubbell, as guardian of the plaintiff, was valid, but it is unnecessary to pass upon this question, as assum-. ing that the city judge of Yonkers had no power to make the order, the judgment is not impaired or affected thereby, and the court can direct the appointment of a guardian ad litem without prejudice to the proceedings already had. The charter of the defendants seems to impose the duty upon the city of putting up railings or guards at dangerous and exposed places in the public streets, and the jury has found that this place, where the accident took place, was dangerous and exposed, and that it was the duty of the defendant to guard the same.

The first question to be determined is whether there is any evidence in the ease to submit to the jury from which such an inference could be drawn. It is conceded that the plans for this street were adopted by the common council of the defendant, and no fence or guard was provided for, and the street was constructed and opened in pursuance of such plans. The adoption of the plan was a legislative or quasi judicial act on the part of the common council, and involved a determination as to its necessity, requisite capacity and what protection was necessary to those using it. And for a defective plan or an erroneous estimate of the public needs no civil action can be maintained. It is not for a jury to say that the defendant shall be held liable for the failure of the common council to give the public more complete protection. The principle is established by a long line of decisions following the case of Mills v. City of Brooklyn (32 N. Y., 489): “that negligence is not to be predicated upon an error in a plan adopted by a municipal corporation for making public improvements under its charter. (Hines v. Lockport, 50 N. Y., 236 ; Urquhart v. Ogdensburgh, 91 id., 67; City of Lansing v. Toolan, 37 Mich., 152.) But even if it should be held that this case did not fall within this rule, we think there is another objection fatal to the recovery herein. The plaintiff failed to introduce any proof that the want of a railing was the primary cause of his injury. The primary cause was the fright of the horse at seeing the bicycle, and so long as the primary cause continued in force, there was no certainty as to any other cause for the injury. The law looks only at the proximate cause, and the fact that the accident happened to occur at a point where there was a defect, does not warrant the inference that it would not have occurred but for' the existence of such defect. The defendant could not be held, as matter of law, to anticipate that a horse would become frightened and unmanageable, and take precautions to prevent all injury resulting therefrom.

Judge Shepley, in Moore v. Abbott (32 Me, 46; quoted in Moulton v. Sanford, 51 Maine, 131), says: “No proof can establish the fact that the damage would not have been sustained but for the defect. * * * It is argued that if a traveler’s horse becomes unmanageable he needs a good road all the more, * * * but under such circumstances no perfection in the road can insure his safety.” * * * They, the town, “ are not bound so to make their roads that travelers shall be safe when their horses are frightened and unmanageable. If they need a more perfect way at such a time, it is because they are involved in a danger not caused by any neglect of the town.” This principle is well established (Titus v. Northbridge, 97 Mass., 258, also, 266; Kennedy v. The Mayor, etc., 73 N. Y., 368) and is decisive of this case.

The judgment should be reversed and a new trial granted, costs to abide event.

Judgment and order denying new trial affirmed, with costs.