text:
    In the Matter of Robert W. Buchanan, a Defendant sentenced to the Penalty of Death, etc.

      (Court of Appeals,

      Filed May 28, 1895.)

    1. Appeal—Habeas corpus.
    Under the statutes of the United Stntes, no appeal can he taken to the supreme court from an order made hy a district judge at chambers in a habeas corpus proceeding.
    3. Same—Stay.
    An appeal, not allowed by law, to a court which has no power to entertain it cannot operate as a stay and furnishes no reason for delaying the execution of the sentence.
    8. Same—Supervision by federal courts.
    The fourteenth amendment to the Federal Constitution confers no jurisdiction upon the courts of the United States to supervise the administration hy state tribunals of the criminal law of the state, or to correct errors, or to modify or change their judgments.

      4. Reprieve—Effect.
    A reprieve by the governor to a day certain, granted in a capital case, authorizes the execution of the sentence on the day on which the reprieve terminates, and it is not necessary that the prisoner should be brought before the court to have the time of execution fixed.
    5. Same.
    Section 503 of the Code has no application to the case of a reprieve, unless the day fixed thereby has passed and the sentence has for any reason not heen executed, though the judgment of conviction is still in force.
    Motion for an order directed to the agent and warden of the state prison at Sing Sing, in whose custody Robert W. Buchanan is, commanding that he be brought before the court of appeals in order that it may inquire into circumstances, and, if no legal reason exists, direct the execution of his sentence.
    This is an application of the district attorney of the city and county of New York under section 503 of the Code of Criminal Procedure, for an order to bring Robert W. Buchanan before this court to the end that a warrant b.e issued under section 504, commanding the agent and warden of the state prison at Sing Sing to do execution of the sentence of death heretofore pronounced against him. Buchanan on the 10th day of August, 1893, was convicted in the court of general sessions of the peace in and for the city and county of New York of the crime of murder in the first degree, and was sentenced to the punishment of death, the sentence to be executed during the week commencing October 2nd, 1893. Appeal was taken by the defendant to this court from the judgment of conviction and the court affirmed the judgment February 26th, 1895. The original time fixed for the execution of the defendant having passed before the affirmance of the judgment in this court, he was thereafter brought before the court of sessions, in which the trial was had, and a warrant was issued commanding the execution of the sentence during the week commencing Monday, April 23d, 1895. Before the time appointed for the execution of the sentence and on the 11th of April, 1895, counsel for the defendant applied upon his petition to Judge Brown, one of the associate justices of supreme court of the United States, praying that a writ of error and supersedeas might issue out of that court to the court of general sessions of the city and county of New York. The petition for the writ set forth the facts of his conviction; the affirmance of the judgment by this court; the re-sentence, and alleged as the grounds "of the application (1) that the life of the petitioner was sought to be taken without due process of law, and (2) that he was not tried by an inpartial jury.
    In support of these general allegations the petition set forth what occurred on the trial in connection with the juror Paradise, and it was alleged that he was physically and mentally incapacitated to take part in the deliberations of the jury and from participating in the verdict, and that the verdict by reason thereof was the verdict of eleven jurors only. Judge Brown referred the application to the full bench of the supreme court, which óourt after .hearing counsel and,on the 16th day of April, 1895, denied the application for the writ on the ground that the petition did not disclose any Federal question or any denial of due process of law, the competency of the juror being a matter within the sole cognizance of the state'tribunals. On Tuesday, the 23d day of April, 1892 (during the week appointed for the execution of the sentence), the execution not having taken place, the governor of the state, upon application of the friends of the defendant and persons interested in his behalf, granted a respite of execution until May 1, 1895. On the 29th day of April, 1895, the defendant, through his counsel applied to Judge Addison Brown, judge of the United States district court for the southern district .of New York, at chambers, for a writ of habeas corpus. The petition alleged that the defendant was illegally and unlawfully restrained of his liberty in violation of the statute and laws of the United States, and of the statutes of this state, and of the treaty between the United States and England, and that his trial and conviction was in violation of said statutes and laws and of said treaty, and of the constitution of the United States. The petition was based upon, assertions: (1) That the juror Paradise did not possess the qualifications of jurors specified in the state statutes, in that he was not. in possession of his natural faculties nor sound judgment, and (2) that the threat to execute the defendant on the 1st day of May,1895, the day to which the execution has been respited, was in violation of law, for the reason that a respite by the governor did not authorize the execution of a death sentence on the day when the respite terminated, and that a new day could only be fixed by the court on application and under the sections of the Code of Criminal Procedure before referred to. Judge Brown refused to grant the writ and indorsed on the petition a statement that he found therein '• no legal reason for entertaining or further considering the application.” No formal 'order was. entered denying the writ, nor- any

      other entry of the decree made. Thereupon, on the same day April 29th, the counsel for the defendant prepared and caused to be filed in the office of the clerk of the district court a notice of appeal from the decision of Judge Brown, entitled in the proceeding, to the supreme court of the United States, on which was indorsed by the clerk, “ Notice of appeal filed April 29, 1895.” It appears that on the 30th of April one of the defendant’s counsel presented to the clerk of the United States supreme court in Washington a document which purported to be a transcript receipt of the record of the proceedings before Judge Brown. The clerk refused to receive or file the papers, on the ground that no appeal had been allowed, and informed the counsel that he could apply for an allowance to a judge of the supreme court or to the court which was then in session. But no further application appears to have been made.
    . The governor of the state on May 1, 1895, granted a further respite to Wednesday, May 8th. Meanwhile a question had been raised as to the effect of the appeal on the habeas corpus proceeding to the supreme court of the United States, and whether it operated as a stay of proceedings until the appeal was heard and determined. The question was informally presented to the attorney-general, and the practice and law being unsettled he advised that the opinion of the court should be taken. This involved a further postponement of the execution of the sentence, and the day of the second respite having expired and no time thereafter being fixed for its execution, this present application was made.

      John R. Fellows and John D. Lindsay, for application ; George W. Gibbons and Daniel T. Kimball, opposed.
   Andrews, Ch. J.

This application must be granted “if no-legal reason exists against the execution of the sentence.” (Code Crim. Proc. § 504 The only suggestion made by counsel for defendant containing a semblance of a legal reason against granting the application is that appeal to the United States supreme-court, taken on the 29th day of April, 1895, from the decision of of the district judge denying the writ of habeas corpus, operated, to suspend all proceedings and deprived the state courts of any power to act in the premises until the appeal shall be heard and. determined. There is no ground for such a contention. That appeal has not only never been perfected by obtaining an allowance thereof (assuming ’that such an appeal would lie), but it was wholly inoperative and ineffectual, for the reason that under the statutes of the United States no appeal can be taken to the supreme court from an order made by a district judge at Chambers in a habeas corpus proceeding. " Prior to the act of Congress, chap. 517 Laws of 1891, passed March 3, 1891, entitled “ An act to establish circuit courts of appeals and to define and regulate in certain cases the jurisdiction of the courts of the United States and for other purposes,” appeals in habeas corpus proceedings before-federal officers or courts were regulated by the provisions of chap. 13 of the Revised Statutes of the United States (§§ 751 to 766). The supreme court and the several circuit and district courts, and the several justices and judges thereof within their- respective, jurisdictions, had power to issue the writ, and from the final decision of any court, justice or judge inferior to the circuit court upon an application for the writ, or upon the writ when issued, an appeal could be taken to the circuit court for the district in which the cause was heard in the case of any person alleged to be restrained of his liberty in violation of the Constitution of the United States, or of any law or treaty of the United States, and in a case involving a question under the law of nations (section 763). But no appeal could be taken from the decision of an inferior court or judge directly to the supreme court. The only appeal permitted to the supreme court was from the final decision of a circuit court (section 764). Pending an appeal authorized by sections 763 and 764, and, until final judgment therein, in a case' where the imprisonment under review was under state authority, any proceeding in the matter, in a state court, was by section 776 declared to be null and void. Under the provisions of the Revised Statutes, therefore, the appeal sought to be taken in the present case directly from the decision of the district judge to the supreme court would have been unauthorized. Such appeal could not have been taken either from the decision or order of the district court or of a judge of that court. The act of 1891, which created circuit courts of appeal, changed to some extent the preexisting system regulating appeals from district courts. The fifth section authorized appeals or writs of error to be taken from the •existing district courts or from existing circuit courts, direct to the supreme court in particular cases, and among others a case involving the construction or application of the Constitution of the United States. It is the judgment and decision of a district conrt, in one of the cases specified which may be " reviewed on direct appeal to the supreme court under this section. The section does not authorize such an appeal from an order or decision of a district judge at Chambers, and •this is settled by repeated adjudications of the supreme court of the United States, the latest of which is Lamden v. Sheriff of Camden County, decided at the October term, 1894, which was an - -appeal from the order of a circuit judge denying an application for a writ of habeas corpus in case of a person under conviction for murder by the courts, of New "Jersey. The supreme court dismissed the appeal, Fuller, Chief Justice, ,saying: “ But this is an order of the circuit judge at Chambers, and an appeal from such an order will not lie,” citing Carper v. Fitzgerald, 111 U. S. 87; In re Lennon, 150 id. 393, and McKnight v. James, 155 id. 685.

It is manifest, in view of these decisions, that the attempted appeal to the supreme court from the denial by the district judge of the writ of habeas corpus was a nullity. The appeal was unauthorized. The supreme court acquired no jurisdiction, and it is needless to say that an appeal not allowed by law to a conrt which had no power to entertain it could not operate as a stay, and furnishes no reason for delaying the execution of the sentence.

We might here close the consideration of this case. But this court had occasion in the case of The People v. Jugiro, 128. N. Y. 589; 38 St. Rep. 746, to allude to the practice of invoking the processes and procedure of the courts of the United States in respect of judgments of the state courts, for mere purpose of delay, and which has brought scarcely less than a scandal upon the administration of the criminal law of this state. The applications to the United States courts after convictions for murder in the state court, have been under pretext of the. new jurisdiction conferred upon the federal courts by the fourteenth amendment of the Constitution of the United States and generally under that clause which declares “Nor shall any state deprive any person of life, liberty or property without due process of law.” But it was not the purpose of this amendment to interfere with the ordinary administration of justice by the courts of a state, or to affect the final and ultimate jurisdiction of the courts of a state over crimes and offenses defined and declared by its laws and committed within its territorial jurisdiction. The phrase “due process of law” used in the Constitution, come to us from our English ancestors. They forbade any exercise of merely arbitrary power, depriving a citizen of life, liberty or property, and they protect him from a violation by a state of these cardinal rights which belong to every definition of civil liberty. In case of accusation of crime the accused is entitled to have an inquiry, a hearing and judgment before he can be deprived by sentence of his liberty or life. But “due process of law” and what constitutes it is, within the limitation mentioned, to be determined by the state in every case where the state can exercise rightful authority. The jurisdiction over crimes, save in exceptional cases, not necessary now to be mentioned, is a state and not ■a Federal jurisdiction. The state constitutes appropriate tribunals for the trial of offenses and prescribes the procedure for the investigation, trial and punishment of crimes. That is “due process of law” within the meaning of these words, which affords to every citizen the equal protection of the laws, and in case of accusation of crime, the right of trial by jury before one of its duly constituted tribunals having jurisdiction of the crime, under a procedure which the state prescribes. The fourteenth amendment confers upon the courts of the United States no jurisdiction to supervise the administration by state tribunals of the criminal law of the state, or to correct errors, or to modify or change their judgments. All errors, however, flagrant, which may have been committed on the trial in the drawing of jurors, or as to their competency; in the reception or rejection of evidence; in the sentence pronounced, or in any of the matters which pertain to the procedure and conduct of the trial, must be corrected, if at all, in the state courts. The United States courts, in general, can neither inquire as to the justice of a conviction or review the procedure on the trial, or the subsequent procedure, unless there has been no hearing, no trial and no conviction, and what has taken place is the mere semblance of a trial to cover a deprivation of liberty or life in violation of the fundamental principles of liberty and justice. The extent or limitations of the new jurisdiction devolved on the United States courts under the fourteenth amendment has not yet been fully ascertained or adjudicated. But the supreme court of the-United States has steadily and in repeated instances disclaimed jurisdiction under it to review errors assigned on trials in state courts,- or to constitute itself a general court of review, and the cases' must be rare and exceptional under the construction placed by the court upon the amendment which would justify an invocation of the processes and procedure of the Federal courts to arrest the execution of the judgment of the courts of a state in criminal cases. See Hurtado v. California, 110 U. S. 516; Caldwell v. Texas, 137 id. 692; McNulty v. California, 149 id. 645 ; In re Kemmler, 136 id. 436 ; In re Wood, 140 id. 278. The petition presented to the district judge in this case disclosed on its face that no Federal question was involved, and the refusal of Judge Brown to entertain the proceeding was manifestly proper. The question as to the-competency of the juror Paradise to take part in rendering the verdict was raised on the prior application to the supreme court-of the United States for a writ of error, which was dismissed by the supreme court expressly on the ground that the question was-exclusively for the state courts. But in the petition for the habeascorpus made after the decision had been announced, the same question, though in a somewhat different form, was made one of the grounds of the application. The other point set forth in the petition, namely, that the reprieve extending to a day beyond the week in which by the order of the court the execution was to take-place, made it necessary that a new time should be fixed by the-court before the execution could be had, presented also a purely state question on the construction of certain sections of the Code of Criminal Procedure. It was a matter for the state courts to determine, and whether the proposed execution by the warden was in pursuance of the law, or contrary to the law, the remedy of the defendant, if any, was in an application to the courts of the state for direction and. relief.

We deem this a proper occasion to express the opinion of the .judges that a reprieve by the governor to a day certain, granted in a capital casé, authorize the execution of sentence on the day on whicli the reprieve terminates, and that it is not necessary that the prisoner should be brought before the court to have the time of execution fixed. By section 5, article 4 of the Constitution of the state, the governor is vested with the power ‘ to grant reprieves, commutations and pardons after conviction. The power of pardon for crimes was in England vested in the king as a royal prerogative, and the power to reprieve a prisoner under sentence was, included in the power to pardon. Blaclcstone (4 Corn. 394) defines-a reprieve to mean “the withdrawing of a sentence for an interval of time whereby the execution is suspénded.” It operates in capital cases only. (Cbitty Or. Law, 757.) The distinction between a reprieve and a suspensation of sentence, although the words are-sometimes used interchangeably, is that a reprieve postpones the execution of the sentence to a day certain, whereas a suspension is-.for an indefinite time. (See Op. of Edmonds, J., in Carnal v. People, 1 Park. Crim. Rep. 262.) The section of the Constitution. referred to uses the word suspension in the clause which confers upon the governor the power to “suspend the execution of a sentence for treason, until the case shall be reported to the legislature at its next meeting.” In The People v. Enoch, 13 Wend. 159, which was an appeal in a capital case, in which the execution of the-sentence had been respited by the governor, the chancellor said: “I am of opinion that in a case like the present, where the execution of the sentence is respited by the governor until a particular day, it is the duty of the sheriff to proceed and execute the judgment of the court at that time, unless further respite is granted or the judgment has been reversed or annulled in the meantime.” The same question came before the supreme court of Ohio in the case of Sterling v. Drake, 29 Ohio St. Rep. 457, where the governor of Ohio, under a constitutional provision in the Constitution, similar to the provision in our Constitution, had granted a reprieve in a capital case to a day certain, and the court held that the sheriff was authorized to proceed on that day to execute the sentence without further action of the court. The governor, under the Constitution, is vested with the prerogative to grant reprieves. This is a power to enlarge and extend the time fixed by the court for the execution of the sentence of death to a day certain in the future. The right to execute the sentence on that day inheres in the power to fix the day to which the reprieve shall extend. If, in case of a reprieve, a re-sentence is necessary, the reprieve is not to a fixed day, but to some indefinite day to be fixed by the court after the day named in the reprieve is passed.

We are of opinion that section 503 of the Code has no application to the case of a reprieve unless, as in this case, the day fixed thereby has passed and the sentence has for any reason not been executed, although the judgment of conviction is still in full force. We think it 'was the duty of the warden, in whose custody the defendant was on the 8th day of May, 1895, the day on which the second reprieve terminated, to execute the sentence on that day without waiting for the order of the court.

The court, having considered the reasons presented against granting the present application, and finding in them no legal reason for further delay, has issued a warrant in conformity with section 504 of the Code of Criminal Procedure.

All concur.

Application granted.


source: Caselaw Access Project

author: Haight, J.

license: Public Domain

text:
    Mutual Life Insurance Company of New York, App’lt, v. John O’Donnell et al., Resp’ts.

      (Court of Appeals,

      Filed May 28, 1895.)

    Stipulation—Oral.
    An oral stipulation in respect to the proceedings in a cause will not be carried into effect by the court, yet it will not permit a party to be misled, deceived or defrauded by means thereof, and, in some instances where it has been acted upon, the party making it will not be permití ed to retract and take advantage of the acts or omissions of his adversary thereby induced.

      Appeal from order of the general term of the supreme court in the fourth judicial department, which affirmed an order of the special term which granted a motion to set aside a judgment for deficiency against the defendant O’Donnell in the above entitled action for the foreclosure of a mortgage.

      David B. Hill, for app’lt; John C. Churchill, for resp’ts.

       Reversing 49 St. Rep. 918.

   Haight, J.

This action, together with seven others, was brought for the foreclosure of mortgages' on property in Lowvifle, Lewis county, executed by the defendant O’Donnell to the plaintiff. Upon stipulation the other actions are to abide the result reached in this, so that it only becomes necessary to consider the facts as presented in this case.

The complaint expressly demanded judgment against the defendant O’Donnell for any deficiency that might arise upon a sale of the premises. O-’Donnell interposed an answer in which, among other things, he alleged an extension of time of payment under a verbal agreement with the plaintiff, and denied that any sum was due for principal or interest. After issue was thus joined and before the time set for the trial of the action, O’Donnell wrote the plaintiff a letter in which he offered to allow judgment to be pérfected at once upon certain conditions therein enumerated. Upon the receipt of the letter the plaintiff sent William Rasquin, Jr., an attorney and managing clerk in the office of the plaintiff’s attorney of record in the action, to Lowville to obtain the necessary stipulations and consent to enter judgment. Upon arriving there Rasquin had an interview with the defendant O’Donnell, which resulted in his signing a written stipulation embracing the propositions contained in his letter, and his attorney, Mr. Hilts, who interposed the answer, also signing a stipulation in the action formally withdrawing the answer and waiving the service of .all papers, except notice of sale and as to surplus. Thereupon Rasquin, upon an affidavit of regularity and the stipulation of the ' defendant’s attorney, moved at special term for an order of reference to compute the amount due, which motion was granted and a reference had in which it was determined by the report that the amount due and unpaid in this action was .the sum of $5,205.82; upon which report judgment of foreclosure and sale was subsequently entered by direction of the court, m which it was specifically adjudicated that, “ if the proceeds of such sale be insufficient to pay the amount so reported due to the plaintiff, with the interest and costs as aforesaid, the said sheriff specify the amount of such deficiency ’ in his report of sale, and that the defendant John O’Donnell pay the same to the plaintiff.” Upon the sale .the premises were struck off to the plaintiff for the sum of $4,000, and the sheriff reported a deficiency of $1,475.50, for which amount a deficiency judgment was entered. The defendant O’Donnell thereafter, upon affidavits tending to show an oral stipulation of the attorney, Rasquin, to the effect that the plaintiff, upon the sale of the premises under the judgment, would bid the amount of the judgment and costs made at the time of the making of the stipulation to withdraw the answer, moved the court at a special term for an order vacating and setting aside the deficiency judgment entered herein. This motion was granted.

Can the order so made be sustained ? As we have seen, the judgment for the foreclosure and sale was entered after the making of the alleged oral stipulation, and in the judgment it expressly adjudged that the defendant O’Donnell-shall pay any any deficiency that may arise up'on a sale of the premises. This judgment still remains unmodified and in full force. It is an adjudication as to the rights of the parties as they then existed and as such is binding upon them. As to the right of the plaintiff to the deficiency judgment, and the facts then existing upon which such right depends, the original judgment must be regarded as res adjudicata.

Again. The order vacating the deficiency judgment was based upon an alleged oral stipulation made by Easquin, the managing clerk of the plaintiff’s attorney. Eule eleven of the general rules of practice of the supreme court provides that “no private agreement or consent between the parties or their attorneys, in respect to the proceedings in a cause, shall be binding, unless the same shall have been reduced to the form of an order by consent, and entered, or, unless the evidence thereof shall be in writing, subscribed by the party against whom the same shall be alleged, or by his attorney or counsel.” This rule is of somewhat ancient origin. It grew out of the frequent conflict between attorneys as to agreements made with reference to proceedings in actions, and was intended to relieve the courts from the constant determination of controverted questions of fact with reference to such proceedings. Here we have an alleged oral arrangement in reference to the proceedings in a cause made by the attorney or his clerk, which, as it appears to us, comes within the express condemnation of the rule. Broom v. Wellington, 1 Sandf. 663; Baine v. Thomas, 2 Caines R. 95 ; Leese v. Schermerhorn, 3 How. 63 ; M. & H. Organ Co. v. Pugsley, 19 Hun, 282; Bust v. Hauselt, 8 Abb. H. C. 148. It is thus apparent that the order appealed from, in its present form, cannot be sustained. It absolutely sets aside and vacates a deficiency judgment which, in the seven actions, amounts in round numbers to $10,000, thus depriving the plaintiff of that amount which it has been adjudged was actually and justly due and owing to it.

The defendant may, however, if entitled thereto, be awarded in a proper proceeding appropriate relief. Such relief ma}'- doubtless be obtained by motion. He may be entitled to relief by having the original judgment as entered modified by striking out so much thereof as adjudges that he pay any deficiency that may arise upon a sale of the premises, or he may be entitled to have a re-sale of the premises. Whilst the oral stipulation under the rule is not binding and will not be carried into effect by the court, still it will not permit a party to be mislead, deceived or defrauded by means thereof, and in some instances where it has been acted upon the party making it, will not be permitted to retract and take advantage of the acts or omissions of his adversary thereby induced. People, etc. v. Stephens, 52 N. Y. 306, 310. So that if the defendant O’Donnell, by the oral agreement, was led to believe that the plaintiff would bid the full.amount of the judgment, and, relying thereon, neglected to attend the sale and look after his interests thereat, the court may, upon motion and by way of a favor to him, order a re-sale.

Whether there was an oral agreement by which O’Donnell was mislead was sharply controverted before the special term. The question was determined upon affidavits. We do not question the power of the special term to so determine the facts, but we wish to suggest that where so much is involved and the conflict is so sharp, that it would be more satisfactory to have the question determined upon common-law evidence taken by the court or before a referee appointed for that purpose, where the parties could have an opportunity to cross-examine the witnesses. Hill v. Hermans, 59 N. Y. 396.

The order appealed from should be reversed, with costs, and the proceedings remitted to the special term for such further action in the matter as counsel may advise.

All concur.

Ordered accordingly.


author: O’Brien, J.

text:
    In the Matter of the Accounting of Henry B. Bolton et al., as Executors of Ann Bolton, Deceased. Henry B. Bolton et al., as Executors, etc., Resp’ts, v. Sarah L. Myers et al., App’lts.

      (Court of Appeals,

      Filed May 28, 1895.)

    Will—Construction.
    Where the executors were empowered to sell any and all of the testator’s land when in their judgment they might deem it for the best interest of "the estate, and they sold the real estate and paid in discharge of testator’s debts a sum in excess of that realized from the personalty, it was held, in proceedings for the final accounting, that, before distributing the proceeds of the sale among the residuary devisees, they were' entitled to reimburse themselves therefrom for the sum so paid in excess of the personalty, and to a credit for that sum, without regard to the question as to whether the power of sale was given for the purpose of paying debts.
    Appeal from judgment of the general term of the supreme court in the second judicial department, entered upon an order, which reversed a judgment entered upon a decree of the surrogate of Westchester county settling the accounts of the executors of Ann Bolton, deceased.

      James R. Marvin, for app’lts ; Alex. Thain, for resp’ts.

       Affirming 64 St. Rep. 142.

   O’Brien, J.

In this proceeding it was held by the learned surrogate that the executors were not entitled to reimburse themselves out of the proceeds of the sale of real estate in their hands for the amount paid by them in discharge of the debts of the testatrix over and above the sum realized for that purpose from the personal estate. The testatrix died September 27, 1882, and letters were granted to the executors in November following. In November 1892, the executors accounted and by the decree then entered it was adjudged that.the estate was indebted to them on account of debts of the testatrix paid by them in default of personal assets in the sum of about $4,000.

Subsequently there came to the hands of the executors a large sum received from the sale of certain real estate of the deceased, •and the present accounting was in regard to that fund, and the •executors claim that they should be allowed to retain sufficient of it to pay the debt due to them from the estate.

The provisions of the will are as follows: After paying debts a bequest of certain household furniture to her daughter. Then a •devise to her son of the house in which he lived. The executors were directed to invest $1,500, the interest upon which was to be paid to a church, and to expend a reasonable sum in erecting a monument and putting the family cemetery in order. Then follows the power of sale in the following terms : “ And I also give power and authority to my executors to sell any and all of my ■real estate, either at public or private sale, whenever in their judgment they may deem it for the best interest of my estate, and to give good and sufficient deed or deeds of conveyance for the same.”

The residue of the estate was then bequeathed to her children. In the courts below the right of the executors to enforce their ■claim in this proceeding is made to depend upon the scope and character of this power. It has been assumed in both courts that unless this can be regarded as a power to the executors to sell real estate for the payment of debts, then the proceeds of the sale must •still be regarded as real estate, and distributed to the devisees or persons who take the real estate under the will.

The learned general term, reversing the surrogate, was of the opinion that it should be treated as a power of sale for the purpose of paying debts, upon the doctriiie of the Gantert case, 136 N. Y. 109 ; 48 St. Rep. 889. If it was necessary to establish that proposition there would be great difficulty in sustaining the judgment. But we think it is not material to determine the character of the power.

It was certainly a general power, and conferred authority upon the executors to convey the land and receive the proceeds. That power has been actually executed. They have conveyed the land, have received the purchase price, and tlie same is in their hands. There is no other way in which creditors can now reach the land except by proceedings for an accounting. The realty has in fact been converted into personalty, and it is in the hands of the executors for all purposes of administration. Before distributing this fund to the residuary devisees they may pay the balance of the testator’s debts, or what is the same thing, reimburse themselves for the debts they have paid in excess of the personal estate that came to their hands. Erwin v. Loper, 43 N. Y. 54; Matter of Hood. 85 id. 561 ; Glacius v. Fogel, 88 id. 434; Matter of Powers, 124 id. 361; 36 St. Rep. 347 ; Matter of Gantert, 136 N. Y. 109 ; 48 St. Rep. 889 ; Cahill v. Russell, 140 N. Y. 402; 55 St. Rep. 805.

In this view we think the judgment of the general term was-right, and should be affirmed, with costs.

All concur.

Judgment affirmed.


author: Bartlett, J.

text:
    George H. Heath, App’lt, v. New York Building Loan Banking Company, Resp’t.

      (Court of Appeals,

      Filed May 28, 1895.)

    Judgment—Amendment.
    After the entry of a judgment in an equity action on findings of fact and-conclusions' of law, the special term, which tried the action, has no power,, on a motion for a re-settlement of the findings and conclusions, to" make amendments therein, which alter the decision'on the merits and change the substantial rights of the parties.
    Appeal from order of the general term of the supreme court in the second judicial department, which reversed an order of special term re-settling the findings of fact and conclusions of law on trial at special term and modifying a judgment in favor of defendant, entered upon such findings and conclusions.
    The nature of the action and the facts, so far as material, are stated in the opinion.

      A. J. Perry, for app’lt; William H. Hamilton, for resp’t.

       Affirming 65 St. Rep. 639.

   Bartlett, J.

The plaintiff is a stockholder in the defendant company, and as a borrower of money therefrom, sued to have declared fraudulent and void a deed, mortgage and agreement, and that he be allowed to rescind -the same by paying the amounts advanced by defendant less sum paid by plaintiff for the stock of defendant and fees paid defendant for making the loan.

The defendant interposed a defense, not material to consider in detail at this time, and set up a counterclaim; on the trial thepjaintiff failed to prove his cause of action and his complaint was ■ dismissed.

At the close of plaintiff’s case it only remained for defendant, to prove the amount due to it from plaintiff, which was accordingly done.

Thereupon the court found, among other things, that there was due from plaintiff to defendant $8,014.66, together with certain amounts of fines and interest.

Then followed the legal conclusions, among others, that if plaintiff paid these amounts within six months from entry of judgment he should receive a re-conveyance of his property subject to certain liens, and the agreement or lease and shares of stock were to be canceled.

If the plaintiff failed to pay these amounts within the time indicated he was to be barred and foreclosed of his rights, the premises sold, and proceeds brought into court and applied in the usual way.

judgment was entered in accordance with these findings and conclusions.

After the time to appeal from the judgment had expired, the plaintiff procured from the justice who tried the case an order, returnable before him at special term, requiring the defendant tO' show cause why the findings of fact and conclusions of law should not be re-settled, on the ground, among others, that his own attorney did not give his case due attention, and that a judgment, was entered against him ,for upwards of eight thousand dollars, which, as to thirty-eight hundred of it, was without consideration and without warrant in the testimony, and if warranted by the testimony, the “ said amount of $3,800.00 is only a name without a substance, and if a substance it is usury.

The special term heard the motion, reduced the amount found to be due from plaintiff to defendant from $8,014.65 to $5,217.99, and amended the findings, conclusions and judgment to conform to this new and extraordinary adjudication upon the rights of the parties.

At the trial the defendant, by uncontradicted evidence, received without objection, had proved the amount due from plaintiff to be $8,592.21.

We agree with the learned general term that the amendment made corrected no clerical error—no mistake of computation, but changed the substantial rights of the parties.

It would be a most dangerous precedent if such a wide departure from due and orderly procedure, as is here disclosed should be permitted.

The contention of plaintiff’s counsel that section 723 of the Code of Civil Procedure allows such a motion to be made is a mistake.

This section was designed to- confer upon courts the amplest power to correct mistakes in process, pleadings and in all other respects, so long as the substantial rights of parties are not affected. Bohlen v. Met El. Ry. Co., 121 N. Y. 546-550; 31 St. Rep. 888.

In the case at bar a decision upon the merits was altered and defendant’s recovery reduced by a very considerable amount.

The plaintiff was not remediless in the situation in which he found himself, assuming there was merit in his contention, but he mistook his remedy when he resorted to the motion now under review.

The defendant cannot be subjected to a reduction in the amount of its original recovery and a radical change in the rulings of' the court on the questions presented, except upon a new trial.

We express no opinion as to the merits, placing our decision solely on the ground that the special term had no power to entertain this motion.

The order appealed from should be affirmed, with costs.

All concur.

Order affirmed.


author: Peckham, J.

text:
    Edith M. Lamb et al., by Guardian ad litem, App’lts, v. Jessie M. Lamb, Resp’t.

      (Court of Appeals,

      Filed June 11, 1895.)

    1 Use and occupation—When not maintainable.
    Where the widow and infant children continued to live in the dwelling house of the deceased wnile she took care of them and acted towards them as natural guardian, and no agreement was made for the payment of rent by her, but the general guardian not only acquiesced in her residence in said house but consented and advised it, an action for use and occupation is not maintainable.
    3. Same.
    Such action cannot be maintained without proof of some agreement to pay rent, either expressed or implied from the possession of lands or other circumstances, so that the conventional relation of landlord and tenant may. be said to have existed between the parties.
    3. Witnesses—Credibility—Hostility.
    It is always proper to show the feeling of a witness towards the party against whom he testifies for the purpose thereby affecting the credibility of his testimony.
    Appeal from judgment of the general term of the supreme court in the third judicial department, entered upon an order which affirmed a judgment in favor of defendant entered upon a verdict, and also affirmed an order denying a motion for a new trial.
    This action was brought" by plaintiff, as guardian ad litem of the infant children of James Lamb, deceased, to recover for the use and occupation of certain real estate belonging to said infants.

      E. Countryman and J. F. Crawford, for app’lts ; Matthew Hale and Henry A. Strong, for resp’t.

       Affirming 57 St. Rep. 335.

   Peckham, J.

James Lamb died in January 1885, leaving him surviving the defendant, his widow, and the plaintiffs, being his three infant children, of the ages of five years, three years and one year respectively. The deceased left property, real and personal, ' of the amount of about $75,000. At the time of his death he was living in his own house in Cóhoes with his wife and children. Some time in the summer of 1885 James White was, upon the petition of the defendant, appointed the general guardian of the infants by the surrogate of Albany county. Soon after his appointment as guardian he and the defendant had a conversation, the particulars of which, in some respects, they do not agree upon in their testimony in this case, but they do agree in the statement that the guardian was to allow Mr. Lamb, the defendant, a total of $1,000 a year for the three children for their maintenance and clothing. The defendant and her children continued to live in the house from the time of the death of Mr. Lamb, and no demand had ever been made upon the defendant for the payment of any rent for the occupation thereof- until the writing of a letter a few -days before the commencement of this action. The defendant has in the meantime taken care of the children and acted towards them as their natural guardian. On or about" January 29, 1891, Mr. White wrote Mrs. Lamb a letter, in which he said that recent 'events had led him to make an investigation as to the defendant and the estate of Mr. Lamb, and of his rights and duties as general guardian of the property of his children, and he said that he was advised, and that it appeared to be his imperative duty as such guardian, to charge and collect from her a reasonable rent for the house and grounds belonging to the estate and occupied by the defendant since the death of her husband. The defendant refused to pay any rent for the time during which she with her «children had occupied the house, and Mr. White then, by order of the county judge, was appointed guardian ad litem of the infants, and commenced this action in their name by himself as such guardian ad litem.

The complaint alleges that the plaintiffs since January 18, 1885, have been the joint owners of the premises which, since the last of February, 1885, had been used and occupied by the defendant as a residence, and that such use and occupation was reasonably worth the sum of $600 per year, no part of which had been paid although the defendant had been requested so to do by the general guardian of the property and of the plaintiffs. The complaint further alleged that the plaintiffs were under the age of fourteen years and that James White had been duly appointed their guardian ad litem by the county judge of Albany county before the' commencement of this action. Judgment was demanded that plaintiffs recover of the defendant the sum of $3,575, with interest as stated. The defendant answered, and after alleging the general facts which have been above stated alleged, further, that the general guardian, James White, advised this defendant to continue to reside in the dwelling house with her children, and consented to such residence on her part, and that he had never asked or required the defendant to pay any rent, and that she had occupied the premises since the death of the intestate, her husband, in pursuance of an agreement with the general guardian by which she was not to pay rent, but was to provide a home for the plaintiffs and pay one-third of the taxes and assessments and one-third of the repairs to be made upon the house; and she denied that she had occupied the house under or in pursuance of an agreement with the general guardian by which she was to pay any rent.

Upon these pleadings the parties went to trial. It will be seen that the suit is sumewhat extraordinary in character. The three children of the defendant living with her in the house in which their father and the defendant’s husband died, the children being .still very young (all of them under the age of fourteen years) are yet in form suing their mother to obtain the payment of rent for her use and occupation of this house, where the plaintiffs have been cared for and nourished by the defendant, their mother. The trial of the case developed the reason for its existence. It ■appeared that the general guardian a short time before the writing of the letter above alluded to had a personal misunderstanding with the defendant in relation to matters having no connection with this subject in dispute, and immediately thereafter he receives this light in regard to his duty as guardian and writes the-letter above mentioned making demand for rent, and upon the-refusal of the defendant to pay it he procures himself to be appointed guardian ad litem and commences this action in the names of these infant daughters of the defendant. There can be no doubt as to the real motive for the action. While it may have no bearing upon the questions of law which are involved herein, it is proper to state th fact because of the exception taken by the .plaintiff to the ruling of the court which allowed the defendant to prove a quarrel and the remarks that were made by the general guardian to the defendant at that time. It will be seen that the action, so far as it is shown by the complaint, is one for use and occupation, although there is no allegation therein of any agreement on the part of the defendant to pay rent. The fact is-alleged that the plaintiffs are infants under the age o£ fourteen years, and that James White has been appointed their guardian • ad litem. Upon the facts which have been stated, and which are substantially all the material ones which were proved, the learned trial judge held that there must be some agreement, either expressed or implied from the circumstances, to pay rent on the part of the defendant, and if there were no such agreement no recovery could be had. The court submitted to the jury the question whether or not such an agreement had been proved, and it permitted them to infer an agreement to pay rent from the circumstances proved in the case, if they thought such inference were a proper and natural one. The jury found for the defendant, thus negativing the existence of any agreement to pay rent, either expressed or implied. So far as the complaint should be held to be one to recover rent for the use and occupation of these premises, in the technical sense of that expression founded on the statute, the action cannot be maintained without proof of some agreement, to pay rent, expressed or implied from the possession of the lands- and other circumstances, so that the conventional relation of landlord and tenant may be.said to have existed between the parties. Collyer v. Collyer, 113 N. Y. 442 ; 22 St. Rep. 723; Preston v. Hawley, 139 N. Y. 296; 54 St. Rep. 632.

The plaintiffs, however, argue that there is stated in the complaint enough to allow of a recover in the nature of one for use and occupation founded upon the fact of an entry upon the lands of the infants by one who had not the legal right to occupy as against them, and who, therefore, was to be regarded as entering in the character of a guardian or bailiff of the infants, and liable to account for the rents and profits of the land while so 'in possession. We assume that if the plaintiffs proved a state of facts from which an illegal entry on intrusion upon the lands of the infants would follow, an action might be maintained by the infants upon their arrival at age, or by their guardian before such time, against the person thus intruding, for the recovery of the rents and profits, or, in other words, for the value of the use and occupation of the lands thus intruded upon.

The cases cited iu the very learned and exhaustive brief of the plaintiffs’ counsel, would seem to prove this beyond all controversy, and indeed we should say that it was quite a plain proposition. It might be questionable whether the complaint set forth any such cause of action. Aside from the question of pleading, however, we do not think the facts proved and found show any such case. Upon the death of James Lamb, the intestate, these infant plaintiffs and their mother, the defendant, continued living in the house where they had all resided up to his death. The mother was entitled to dower. They were helpless infants ; their mother was their natural guardian. She remained in the house after her husband’s death, protecting, caring for and supervising them. Upon such facts we might well hold there was no wrongful, illegal or improper intrusion or entry upon the lands of these infants. They were themselves in actual occupancy of the house, having the benefit thereof and the title thereto ; the defendant caring for and protecting them in such occupancy, and not in fact converting any profits, to her own use, or receiving anything as profits of an adverse occupation and possession. There are other facts, however, and it is unnecessary to decide upon the legal effect of the above in the absence of any agreement whatever.

Upon defendant’s petition Mr. White was appointed the general guardian of the infants, and in that petition the fact was stated that they were residing in this house and that no rent rose therefrom. This fact was known by the proposed guardian, and from the time of his appointment he had acquiesced in the defendant’s residence in that house while taking care of and maintaining the children, and such acquiescence continued until a short time subsequent to the quarrel above mentioned, when the demand for rent was for the first time made. The guardian during this time not only acquiesced in but consented to and advised such residence, and by the finding of the jury, taking into consideration the issues made by the answer of the defendant and the testimony of Mr. White and the defendant, and the manner in which the question was submitted to the jury, it can be stated and maintained that he not only consented to such occupation, but that he agreed affirmatively that no rent should be charged and that the $1,000 allowed, taken in connection with the occupation of - the house, should be the allowance to the defendant cut of the property of the infants for their care, clothing and board. The plaintiffs’ counsel alleges that the question whether such agreement existed was not submitted to the jury, and that the only question submitted was whether there was an affirmative agreement on the part of the defendant to pay rent, or whether from the circumstances proved in the case the jury should imply one. I think such is not the limitation to be given to the charge"of the court. The affirmative agreement was set up in the answer. The guardian and the defendant were both sworn upon the trial. They both testified to a.certain conversation taking place in regard to these children and to the amount which should be allowed for their maintenance and upon the subject of rent. The guardian testified distinctly that in that conversation there was no agreement to pay any specified sum for rent, but he alleges that from the course of the conversation it was assumed and stated that the question of rent was one to be submitted to or decided by the surrogate, and that the defendant would pay whatever the surrogate decided was proper. The defendant, in testifying in regard to that conversation, and assuming to give its substantial import, stated that the agreement was that she was to have $1,000 annually for the support of the three children, and that she should keep the children and should have the use of the house until the youngest child came of age, on payment by her of the taxes, insurance and repairs, and he advised her to stay there on those terms. While the learned court charged that there must be found either an express agreement to pay rent or an implied- agreement arising from the circumstances submitted to the jury, he left it to the jury to say which of these stories, as given by the guardian and the defendant, they believed. The testimony of the defendant was not a mere denial of that of the guardian, but it was a positive statement as to what the agreement was, and as defendant stated it her evidence was not alone totally inconsistent with and contradictory to that given by the guardian, but it stated an affirmative as to the rent. So, when the testimony of the guardian and of the defendant on this point was submitted to the jury, and it was left to them to say which of the two witnesses they were to believe, it was in substance and effect a submission of the question as to what was the agreement, and a verdict for the defendant involves a finding, not only that there was no expressed agreement to pay rent, and that ' there was no implication of an agreement arising out of the circumstances, but a finding that the defendant’s evidence was true, and that evidence proved the agreement relied on by defendant. The agreement, as testified to by the defendant and found by the jury, was inconsistent with the idea of any unlawful intrusion upon the lands of the infants or any liability to pay rent therefor. We think the plaintiffs’ claim that the testimony was contradictory as to the agreement to pay rent, and that the question of the agreement as sworn to by defendant had not been submitted to the jury, is not justified by the charge of the judge, and the argument of plaintiffs, which is based upon such claim, must fail. Under such circumstances, the continuation of the mother in the house furnishes no basis for use and occupation. It is further urged that this agreement, even if made, was one which would not bind the infants, unless it were a reasonable one, and that evidence addressed to the question of the reasonable character of the agreement offered by the plaintiffs was excluded by the court upon the objection of the defendant. The evidence which the counsel for plaintiffs claims should have been admitted upon this point was-that which he offered for the purpose of showing that the defendant had, on some occasions, taken these children with her to the country and obtained board for them at rates of $3, and even as low as $2.50 per week for each of them. It appeared that the mother upon all these occasions, with one exception, accompanied her children for the purpose of taking care of them. We think the fact if proved was wholly immaterial, and had no bearimr whatever upon the question of the reasonable character of the-agreement which the defendant alleges was made between herself and this guardian. That she was enabled for a short time in each summer to obtain board for herself and her children at a small rate in the country had no proper bearing upon the question.

The court permitted the defendants, under the plaintiffs’ objection, to testify to.a quarrel between the defendant and the guardian just prior to the time when he wrote the letter making his demand for the rent. The defendant testified that in that quarrel the guardian made threats against her, and said that where he as guardian had saved her cents he would make her pay out dollars in more ways than one. It was objected to on the ground that the quarrel and dispute between these parties had no relation to' his guardianship or administratorship of the estate. We think the evidence was admissible upon the well-grounded principle that is is always proper to show the felling of a witness towards the party against whom he testifies, and for the purpose of thereby affecting the credibility of his testimony. It was particularly proper in this case. His evidence and that of the defendant were diametrically opposed, and to such an extent that it was quite plain neither could be honestly mistaken. It has frequently been held that such evidence is proper. Starks v. People, 5 Den. 106; Schultz v. Railroad Co., 89 N. Y. 242.

On the whole, we think the judgment is right, and it should be affirmed.

All concur.

Judgment affiirmed.


author: Finch, J.

text:
    In the Matter of the Estate of Josephine Patterson (Otherwise known as Josephine West), Deceased.

      (Court of Appeals,

      Filed June 11, 1895.)

    Fobmeb adjudication—Parties.
    An unrevoked order appointing a person as administrator on the ground of being the surviving husband of the intestate, though conclusive as to his autnority to act, does not establish conclusively the fact that he was her husband as against the next of kin were not notified and did not appear; they can waive their right to attack the order and set aside the decree, on final acounting awarding the surplus to him as husband.
    Appeal from part of an order of the special term of the supreme court in the first judicial department, which reversed a decree of the surrogate of the county of New York so far as it vacated letters of administration of the estate of Josephine Patterson, deceased to William H. Patterson, and affirmed said decree so far as it vacated a decree of said court passing and settling the accounts of said William H. Patterson as such administrator

      William H. Hamilton, for app’lt; Edmund Luis Mooney, for resp’t.
   Finch, J.

Upon the death of the intestate, letters of administration were granted to Patterson as her surviving husband. They issued upon his petition asserting that relation as his title and the foundation of his right, but without notice to the next of kin, or any appearance by them. At a later period he filed his account, and the same w,as settled by the surrogate awarding payment of the whole surplus to him as husband. Thereafter the next of kin filed a petition, allegipg that he was never in any manner married to the deceased, but had obtained the whole estate by the false assertion of a husband’s right, and asked to have the decree on the accounting and for distribution vacated and set aside, and that the assets in hands of the administrator be paid over by him to the next of kin. The surrogate determined, and the evidence before him fully justified the conclusion, that Patterson was not and never had been the husband of the intestate, but lived with her only in a meretricious relation, and that, therefore the letters of administration and the decree for distribution were each obtained by fraud and falsehood and should be revoked and vacated. An order to that effect was entered, but on appeal to the general term so much of it as revoked the letters was reversed for the sole reason that the proceeding was not framed for such relief. The vacating of the decree for distribution was affirmed, and it is now said that such affirmance was error, because the unrevoked letters were conclusive proof of Patterson’s title as husband and must uphold the decree of distribution until themselves vacated in a proper direct proceeding. That presents the sole question on this appeal. The appellant’s argument is that the next of kin claim under and in affirmance of the order appointing Patterson administrator and cannot, therefore, at the same time attack*it collaterally. But they do not attack it at all. They admit and.recognize the authority of Patterson as administrator, and concede that the order unrevoked is conclusive proof of that authority. The Code gives such effect to the order, and admitting its force, they ask that the lawful administrator make an honest and lawful distribution. There is no inconsistency in their position, for the order is not conclusive upon the reasons and facts, not jurisdictional, which led to it as against parties not cited, not appearing, and who have in no manner been heard in respect to them. The order does not fall, is not revoked, or even shakén in its authority by proof in the proceeding for distribution that Patterson never was, in fact, husband. There is no estoppel which goes behind it and makes the reason which led to it a fact conclusively established in a case where the next of kin were neither notified nor appeared. . A creditor may be appointed where it appears 'that there is no next of kin. On his accounting can it be that the next of kin actually existing may not assert their right to distribution and contest the validity or amount of the creditor’s debt? For them the question • who shall distribute may be quite immaterial and induce a waiver of the prior right which might be enforced, but such waiver would be fatal if by it the question to whom distribution should be made is finally foreclosed. I can see no reason for such a doctrine. There is no attack upon the order granting the letters either collateral or direct. On the contrary, it may stand consistently with the relief asked. None of the cases cited by the appellant establish the doctrine for which he contends. Most of them were obviously cases in which the relief sought necessarily required the vacating or destruction of the prior order as in Hankins v. Turner, 10 L. Rep. Ch. Div. 372, in which the suit was for administration, and the relief involved a vacating of the order of the probate division. Porter v. Purdy, 29 N. Y. 106 ; 47 St. Rep. 870, states the familiar rule that an adjudication cannot be destroyed by a mere collateral attack. In Caujolle v. Curtiss, 13 Wall. 465, there was a judgment of a state court in a suit for administration involving the question who was next of kin, in which all parties had been heard, and it was held conclusive. In th& Roderigas case, 63 X. Y. 460, it was a jurisdictional fact which was sought to be disproved to the necessary destruction of the order founded upon it. Here no jurisdictional fact was assailed, nor was the order founded upon it attacked or questioned. In Bolton v. Schriener, 135 X. Y. 65 ; 47 St. Rep. 870, the plaintiffs in ejectment claimed as heirs at law and could only succeed by annulling the probate of a will carrying the estate elsewhere, and sought to do so by contradicting the fact of inhabitancy. Obviously none of these cases furnish the rule in the one before us, for here the order may stand, and is left to stand, consistently with the relief granted.

What is said as to the conduct of the next of kin in so long postponing their attack will assume importance if the sureties of Patterson are sued, but is at present immaterial.

We see no reason for disagreement with the general term "and its order should be affirmed, with costs.

All concur.

Order affirmed.

       Affirming, 61 St. Rep. 439.


text:
    Elizabeth S. Edgecomb, App’lt, v. Sarah E. Buckhout as Administratrix, etc., Resp’t.

      (Court of Appeals,

      Filed June 11, 1895.)

    1. Contract—Breach.
    The mere fact of a contemplated marriage, or the marriage itself, does not necessarily as matter of law, disqualify a woman from rendering services and performing her agreement as a housekeeper; the question as to whether the marriage affords ground for her discharge is properly submitted to tlie jury.

      2. Evidence—Opinion.
    Where, in an action to recover for services as a housekeeper, it appeared that the employer was a man of wealth and his establishment was conducted on a lavish scale of expenditure, a witness, who stated that she had conducted boarding houses of the highest class in the city of New York, had hired many housekeepers and paid them their wages and that their services were fairly worth the amount paid, is competent to express an opinion as to the value of plaintiff’s services.
    3. Appeal—Court op appeals. .
    ’An appeal to the court of appeals from an order of the general'term affirming on the facts an order denying a motion for a new trial upon the minutes of the trial court, does not bring up for review the questions determined by the general term upon appeal from such order.
    Appeal from order of the general term of the supreme court in the second judicial department, which reversed a judgment in favor of plaintiff entered upon a verdict, and also reversed an order denying a motion for a new trial, and granted such motion.

      Daniel B. Thompson, for app’lt; Louis O. Van Doren, for resp’t.

       Reversing 64 St. Rep. 320.

   Peckham, J.

The plaintiff brought this action to recover for services as housekeeper, which she alleged in her complaint herein she had performed for one Eckfold Webb under an agreement that she should perform them up to the death of Mr. Webb, he agreeing with her that she should be compensated for such services by a provision in his will, by which she would have a life estate in the house No. 78 Rush street, .in the city of Brooklyn, $5,000 in cash and $3,000 in value of railway bonds. The plaintiff alleged the performance of the contract on her part, the death of the other party to the agreement, Mr. Webb, and his failure to-make any provision for her in his will. It was also alleged that the reasonable, compensation for the services actually performed by the plaintiff would be the sum of $18,000, no part of which had been paid to the plaintiff, and she demanded judgment therefor against his administratrix, with interest from October 1, 1893, the date of the death of Mr. Webb.

The defendant put in an answer denying the agreement, alleging that the plaintiff had been fully paid for all services rendered by her to the deceased, and also alleging that the plaintiff, long prior to the death of Mr. Webb, had herself terminated, canceled, discharged and abandoned the contract. Other defenses were set up in the answer which are not necessary to state.

It appears upon the trial that the deceased, Mr. Webb, was a man about sixty years of age. very large in person and somewhat helpless on that account. Sometime in 1881, he engaged the plaintiff, who was then an unmarried woman of about forty years of age, to become his housekeeper and to perform such other services as might be required of her from time to time. The agreement was that the plaintiff should perform such services for Mr. Webb up to the time of his death, for which she was to be compensated as stated in the complaint. Pursuant to the agreement the plaintiff then entered into the service of Mr. Webb and remained in his service between eight and nine years. She proved the character of the services which she rendered, which were not alone those pertaining to an ordinary housekeeper, but included services of a personal nature, necessitating constant attendance upon Mr. Webb. They included also the purchase of supplies for the house and table, the hiring of servants, the superintendence of their work, paying the bills of the establishment, attending to the sewing and mending and doing many other services which were stated in detail by the plaintiff and her witnesses. Sometime in the spring or early summer of the year 1889, the plaintiff left the service of Mr. Webb under circumstances which she stated in her testimony. They were in substance that upon informing" Mr. Webb that she had received an offer of marriage from her present husband, Mr. Edgecomb, and asking his advice as to her acceptance of it, he stated that he had no advice to give and became quite angry. The conversation was continued regarding the question of her ability to render to Mr. Webb the services which, she had theretofore rendered, if she married Mr. Edgecomb, and Mr. Webb said that she would not be able to render him such services, that her husband would not permit it and that he would not have any married man around his house. The plaintiff replied that she had spoken with Mr. Edgecomb in regard to the matter and that he was perfectly willing that she should continue to render the same services that she had before rendered and that unless he were willing that she should do so she would not marry him. In addition she said she would if Mr. Webb preferred it take a house with her husband and , give to Mr. Webb the best rooms in it and render to him the same services she had heretofore rendered him; or if he chose she would have Mr. Edgecomb come to the house and she would continue to give the same services to Mr. Webb under those circumstances; or she would have Mr. Edgecomb remain where he was and she would in that case continue to render the services until Mr. Webb died, and that during the little space of a wedding tour which she would like to take, she would have her stepmother come and perform the same services for Mi\ Webb that the plaintiff had been performing. The testimony shows that it was not an alternative demand on the part of the plaintiff that the contract should be modified, from that which was originally made. The evidence shows a statement on her part of her willingness to stand by the contract that she had made and a statement that her proposed- husband was entirely willing that she should do so, and then she offered at the option of the deceased other propositions in relation to taking a house, etc., which have just been stated.

The result of this was that Mr. Webb discharged her and gave her three weeks in which to leave his house. It is plain and the j ury have found that the discharge was given by Mr. Webb solely for the reason that he refused to accept the services of plaintiff as a married woman, and his notification to her that she might have three weeks in which to leave was based solely upon his determination to refuse at all events the services of the plaintiff as a married woman. He stated that he would not have a married woman, and that he wanted an unmarried woman to perform the services which he required.

The plaintiff left the house pursuant to the notification of Mr. Webb and soon thereafter was married to Mr. Edgecomb, and the two left for Europe. They were gone several years and she returned a short time prior to Mr. Webb’s death, in October, 1893, and soon after that event the plaintiff brought this action to recover for the value of the services performed by her during the time she was in his employ.

The learned judge upon the trial submitted to the jury the • question as to what the terms of the agreement between Mr. Webb and the plaintiff were. - If they found that the agreement was as testified to on the part of the plaintiff, the second question submitted to them was that relating to her performance of the agreement thus proved. He stated to the jury that the contention on the part of the plaintiff was that she had been ready, willing, and able at all times to continue to serve Mr. AYebb, and that the relations between them were severed not by any wrongful act on her part, and she claimed that his discharge of her was wrongful in the sense that her contemplated marriage did not constitute ■any just ground in and of itself for her discharge.

The learned judge then said to the jury : “If the effect of the marriage of the plaintiff with Mr. Edgeoomb was such as to render it practically impossible for her to continue thereafter to render the services as housekeeper which were contemplated bj^ the agreement between her and Mr. Webb, this contract was ended by her act, and as the contract is,an entirety, she lost all right to recover in the action. * * *

“She testified that the husband was entirely willing to allow her to remain there just as she had remained before, to allow her to do just what she had done before, to perform all those various services which have been narrated with so much detail in your hearing during this trial, and you are asked to conclude, therefore, that there was no necessary obstacle to. the continuance of that relation arising out of the new relation which she was about to form and did form with the gentleman who became her husband. In other words, you are told that this new relation was not incompatible with the continuation of the old one, and that the husband had no claims or rights as to his wife which rendered it improper, if not impracticable, for her to go on and do what she had been doing before. * * *

“ I leave it to you as a question of fact to determine whether or not the effect of the marriage was to render it practically impossible for the plaintiff to continue to render the same services as she had rendered before. * * * If you shall find that the effect of the marriage she was about to contract took it out of her power to perform the contract, then she cannot recover at all. If such was not the effect of the marriage, and if you shall find that it was practicable for her to go on and do just what she did before, and that Mr. Edgeoomb, her husband, was willing that she should go on and do just as she did before, then Mr. Webb was not in a position to break off the relations till something actually occurred which made it certain that she should not go on.

“ Of course, he was under no obligations to make any change in his household to accommodate the husband. He was under no obligation to admit him there, either as the spouse of this lady or as a visitor for any purpose whatever, or to sacrifice one moment of the time which the plaintiff engaged should be devoted to him in order that she might devote it to her husband ; but he was not justified in breaking of the relation if it were practicable that the relation should continue as it had continued and as it was intended to continue by the contract, if she did everything to render such a result possible.”

Several written questions were submitted to the jury, which they answered. They found the agreement as testified to on the part of the plaintiff; they found that Mr. Webb dismissed plaintiff from his service because she became engaged to Mr. Edge-comb ; they found that the marriage of the plaintiff to Mr. Edge-comb did not make it practically impossible for her to continue to perform such services as she had agreed to perform as housekeeper for Mr. Webb, and that the plaintiff did not voluntarily leave or abandon the service of Mr. Webb upon entering into her marriage engagement. Also that the plaintiff had not been paid for such services as she rendered to Mr. Webb. They also found that the fair and reasonable value bf such services as plaintiff rendered to Mr. Webb was $85 per month, and they found a general verdict for the sum of $8,330.

The defendant appéaled to the general term from the judgment entered upon the verdict, and that court held that the question respecting the right of the deceased to discharge the plaintiff should have been decided as a question of law by the trial court, and that as a matter of law the marriage of the plaintiff wrought such a change in the plaintiff herself as to disqualify her from the performance of her contract with Mr. Webb, and that Mr. Webb was justified in construing her proposed marriage as a rescission of the contract on her part, and discharging her for that cause.

Treating the question as one of law simply, we are of opinion that the general term erred in its conclusion as above stated. We agree that the services contracted for in this case were those entirely of a personal nature, admitting of no substitution of any other individual, either as master or servant. The master-selected the servant and the servant chose the master. Submission to the master’s will is the law of this contract, as it was of that in Lacy v. Getman, 119 N. Y. 109-115 ; 28 St. Bep. 546. Of course the master’s will must be lawful and reasonable, and of such a nature must be his orders, and a breach of the agreement to render such services as were therein provided for and intended in this case would be ample justification to the master for the discharge of the servant, the plaintiff herein. But we are of the opinion that the mere fact of a contemplated marriage, or the marriage itself, would not as matter of law render tlie plaintiff incompetent, or necessarily disqualified, to perform the services which had been contemplated in the agreement between the parties. The general term is in error when the learned judge speaking for it says that the evidence showed the deceased Mr Webb had contracted for the services of an unmarried woman. He had contracted for the plaintiff’s services, and at the time she happened to be unmarried. But there was nothing in the nature of those services which rendered it legally impossible for the plaintiff to perform them as a married woman, or which necessarily disqualified her from their performance upon her marriage. If her husband were entirely willing that she should perform them, and that she should remain in the house of Mr. Webb separated from her husband, he continuing to reside where he had resided up to that time, how can it be said as matter of law that this marriage necessarily rendered the plaintiff incompetent to perform her agreement? If, after the marriage had taken place, the deceased'had found that the services of the plaintiff were not being rendered as they theretofore had been, on account of the fact that she had a husband who claimed any portion of her time and services, or who claimed or endeavored to exercise the right to be in the house of the deceased at any time, then there would have been justification for the discharge of the plaintiff by Mr. Webb. But so long as the plaintiff continued in the faithful performance of the agreement which she had theretofore entered into with Mr. Webb, the fact that the plaintiff had a husband would, under the circumstances, be wholly immaterial, provided, of course, that the husband claimed no right to and did not in fact come to the house of the deceased and make no claim for the presence or service of the plaintiff at his house or for her time. It is true that marriage is not only a contract but an institution, as said by the learned court below, and that it not only creates rights and makes obligations, but that it confers a status. But so long as the husband claims no rights arising from the marriage contract, and is on the contrary entirely willing that the wife shall continue as theretofore in the full performance, separated and apart from her husband, of her obligations to another, it cannot be said that the wife necessarily and simply by virtue of the marriage disables or disqualifies herself from performing her earlier agreement, and that as long as she does perform it in every respect as fully and completely as she ever did, and the husband claims and exercises no rights whatever over her or in regard to her other obligations or duties, the party with whom such earlier contract has been made has no right to treat it as rescinded on the sole ground of the marriage.

It was not error, therefore, of which the defendant can complain that the trial judge left it to the jury to say whether the fact of the marriage of the plaintiff afforded ground for her discharge by the deceased, for it left the defendant, his administratrix, a chance for success which was not open to her if the question were to be decided as one of law. The single fact of the marriage, when considered with reference to the other facts, did not furnish such ground.

As the general term reversed the judgment and granted a new trial and the plaintiff has appealed from such order and given the usual stipulation that in case of its affirmance judgment absolute shall go against her, the defendant urges that even if the general term were in error on the ground above stated in granting the new-trial, yet still the order can be maintained on the ground of the error of the trial judgein the admission of certain testimony which will now be considered. The defendanc alleges that the trial court erred in allowing the witness, Mrs. Mann, to testify to the value of the services of a housekeeper. The witness testified she had been in the habit of hiring household servants for many years in the city of New York. She had been the proprietress of several boarding houses of the highest class where very rich people, as she said, were accustomed to board, and where everything had been conducted, as she described it, “in first-class style.” She had during that time hired many housekeepers and paid them wages for their services, and she testified that their services were fairly worth the amounts she had paid to them. She also said that housekeepers in her employ never did any sewing, never did any purchasing, never did any paying of bills, never did any hiring or discharging of servants. It had been proved that such services had been performed by the plaintiff for Mr. Webb. The witness gave her opinion of the value of the plaintiff’s services, not including her sewing as a seamstress; and she also testified that she had seen the plaintiff at various times doing sewing of all kinds, making sheets and pillow cases, mending clothing of the deceased and doing other things of that nature, and she testified that such services, assuming they were in each month of about the same proportion as they had been when noticed by the witness, were worth $20 per month. The defendant objected to all this evidence in due time on the .ground that it was incompetent and immaterial and also on the ground that the witness was not shown to be an expert, and that the value of the services of the class of housekeepers engaged by the witness for work in such establishments as she conducted furnished no standard for measuring the value of the services of the plaintiff to the deceased Mr. Webb. It had appeared in evidence that Mr. Webb was a man of considerable means ; that his -establishment was conducted on quite a lavish scale of expenditures ; that his table was of the best, furnished with wines and the best and earliest that the market afforded in the way of game, vegetables, fruit and other things; that he kept carriages and horses and lived, in fine, as á man of quite large means. It was also objected that the services of the plaintiff as a seamstress were -outside of and beyond that which was alleged in the complaint, which merely set forth the employment of the plaintiff as a housekeeper, and that that was exclusive of any services of the nature of those of a seamstress, and, therefore, evidence of the value of such services was incompetent.

Wé are of opinion that these objections should not be sustained. The term “housekeeper” does not admit of any clear, accurate and arbitrary limitation as to the character of the services which are -embraced within the duties of such a person. Those duties are not very strictly defined by such an expression. Generally speaking, we know that it has reference to services performed in taking care of a house in connection with the inmates residing therein, but exactly what special and particular duties are to be regarded as embraced with the term must almost always be decided by the duties which are actually performed under the agreement as made. In this case the character of the duties was specifically detailed by the plaintiff and by various witnesses, all of whom went at quite great length into a description of the same; and it is seen that the term housekeeper in fact embraced duties not limited by the mere control and taking care of the house itself. Probably it would be ■impossible to show the value of such services by an individual who had herself performed precisely the same kind of services for another individual situated exactly as was the deceased and in substantially the same neighborhood. Obviously all that the plaintiff could do in order to show the value of her services was to call those people who had been engaged in the hiring of individuals to -do the same class of services in some respects, although not to the -same extent or precisely of the some character as those which were performed by the plaintiff. For this purpose she called Mrs. Mann, who had been in the habit of hiring housekeepers to do-such work as she described when on the stand, and not one of them had been hired to do all the services which had been performed by the plaintiff. It was competent to show that the housekeepers thus employed were paid a certain sum per month, and that their services were fairly worth the amount which was paid to them. The same may be said with regard to the value of the plaintiff’s services as seamstress. Mrs. Mann knew the value of the services of such an individual engaged in substantially the same neighborhood and doing exclusively that kind of work; but, as the plaintiff did not confine herself exclusively to those duties, she did not earn as much in that capacity alone as did the hired seamstress, who devoted the whole of her time to that work. The witness assumed a certain proportionate time that the plaintiff gave to her work as a seamstress and gave as her opinion an amouub which, as she thought, would be the fair value of the services thus; performed. In this we see no error. It was, as we have said, the best that the situation permitted plaintiff to do; in other words, the best evidence that the nature of the case afforded, and. therefore, it was not incompetent, because it left the value of plaintiff’s services as actually rendered somewhat indefinite and vague.

The defendant urges another ground for the affirmance of this order based upon the practice followed herein. It seems -that the order at first made by the general term was one simply reversing the judgment and granting a new trial. The action had been tried before a jury, and upon the coming in of the verdict a motion had been made to set it aside and for a new trial on the minutes of the judge. That motion was denied and an appeal by defendant was taken from the order denying it as well as from the judgment entered upon the verdict of the jury. Subsequent to the reversal of the judgment and upon affidavits of'plaintiff’s attorney and upon an order to show cause, the order of the general term was, upon motion of the plaintiff, amended in such a way that the general term reversed the judgment upon the exceptions alone, and it also-ordered that the order of the trial court denying defendant’s motion for a new trial should be, and it thereby was, affirmed upon the facts. The defendant's counsel now contends, as we understand him, that the questions reviewed by the general term and arising upon the appeal from the order denying defendant’s motion for a new trial on the ground that the verdict was against evidence and for excessive damages should be regarded as before this court. We are not authorized to exercise such jurisdiction. If the order of the general term had stood as it was originally made and an appeal had been taken to this court, we should have had to dismiss the appeal or affirm the order with costs, because it would not have appeared under such circumstances that the reversal of the judgment by the general term was founded on questions of law only, the facts having been passed upon adversely to the then appellants. The general term knew what ground sit took in reversing the judgment and granting a new trial, and upon application to it by the plaintiff, after notice to the defendant, it deliberately amended its former order and showed that it had passed upon the facts and affirmed the order denying the motion for a new trial, and that it reversed the judgment upon exceptions, or, in other words, upon questions of law only, the facts having been passed upon by it unfavorably to the defendant.

In this case, as in others, we can only review the questions of law arising upon the exceptions. Harris v. Burdett, 73 N. Y. 136, 139 ; Snebly v. Conner, 78 id. 218 ; Kennicutt v. Parmalee, 109 id. 650 ; 15 St. Rep. 515; Mickee v. Wood & Co., 144 N. Y. 613 ; 64 St. Rep. 214.

We think the trial judge committed no error prejudicial to defendant, and that.the order of the general term reversing the-judgment and granting a new trial must be reversed and the judgment upon the verdict affirmed, with costs.

All concur.

Ordered accordingly.


text:
    Louisa Carlson, Resp’t, v. Maria L. Winterson, App’lt.

      (Court of Appeals,

      Filed June 11, 1895.)

    Appeal—Restitution .
    A motion for restitution, under section 1333 of the Code, upon the reversal of the judgment, may be made in the court that reverses the judgment, or at the general term of the court to which the case has been remitted and is pending, if that court has a general term.
    Appeal from order of the general term of the court of common pleas for the city and county of Mew York, which reversed an order of the general term of the city court of Mew York vacating and setting aside by virtue of an execution issued herein a sale by the sheriff of real estate which belonged to the-defendant.

      F. F. Bullard, for app’lt; Hector M. Hitchings, for resp’t.

      Reversing 64 St. Rep. 113.

   Haight, J.

The plaintiff recovered a judgment against the defendant for the sum of $637.15 in the city court of Mew York, which was affirmed in the general term of that court, but subsequently reversed in the general term of the court of common pleas. In the meantime the sheriff had sold for the sum of $711 certain real property of the defendant upon an execution issued upon the judgment to Hector M. Hitchings, the plaintiff’s attorney, to whom the judgment had been assigned. Mo stay was procured pending the appeals. Upon tue reversal of the judgment by the general term of the court of common pleas the case was remitted to the city court for a new trial. Thereupon the defendant moved in the general term of that court for an order setting aside the sale of her real estate, which motion was granted; but on appeal to the general term of the court of common pleas the order was reversed.

It is contended that the general term of the city court had no power to make the order.

Section 1323 of the Code of Civil Procedure provides-that: “When a final judgment -or order is reversed or modified, upon an appeal, the appellate court, or the general term of the same court, as the case may be, may make or compel restitution of property, or of a right lost by means of an erroneous judgment or order; but not so as to affect the title of a purchaser in good faith for value. ”

The language used is somewhat obscure. Under the old Code of Procedure, the appellate court was. empowered to award restitution. Under the present Code, the words, “ or the general term of the same court, as the case may be,” have been added. What ■do they mean ? Do they refer to the appellate court in which the case has been remitted and is pending? If they refer to the court that reversed the judgment, they are surplusage and add nothing to the section. The question of restitution cannot always be disposed of by the appellate court at the time of the reversal of .the judgment. Restitution cannot be ordered “so as to affect the title of a purchaser in good faith for value.” The facts with reference to the good faith of the purchaser would not appear upon the record, and consequently they must be presented upon an independent motion. No reason is apparent why they may not be considered by the court to which the case has been remitted, without further burden to the appellate court, and we are inclined to the view that such was the intention and the reason for the insertion m the Code of the new provision. It follows that the motion may be made in the court that reverses the judgment, or it may be made at the general term of the court to which the case has been remitted and is pending, if that court has a general term. If not, the motion must be made in the court that reversed the judgment.

The provisions of this section of the Code have received some attention in Market National Bank v Pacific National Bank, 102 N. Y. 464; 2 St. Rep. 59 ; Wright v. Nostrand, 100 N. Y. 616 ; Hayes v. Nourse, 25 Abb. (N. C.) 96; 28 St. Rep. 167, and other cases, but in none of them have the provisions been fully considered and the practice made clear. We have, therefore, thought it advisable to reconsider the subject in order that there may be no doubt in the future as to the court in which the motion for restitution should be made.

The respondent in the opposing affidavits shows that the defendant has no property other than that sold, and, upon information ■and belief, that she has conveyed her interest in that property. Dull justice may be done the parties by a modification of the order.

The order of the general term of the court of common pleas should be reversed, and that of the general term of the city court modified, so as to vacate the sale upon the defendant paying into court the sum of $711 within such time as shall be fixed by that court, to abide the final determination of the action, without costs •of this appeal to either party.

All concur.

Ordered accordingly.