author: Dykhan, J.:

text:
    PATRICK CASEY, Appellant, v. THE PEOPLE OF THE STATE OF NEW YORK, Respondent.

      Criminal trial — insanity — what ts the legal test thereof — bu/rden of proving it — jurors — duty of to agree upon a verdict — how far they are to be influenced, by the opinion of fellow-jurors.

    The test of responsibility for criminal acts, where insanity is asserted, is the capacity of the accused to distinguish between right and wrong at the time and with respect to the act, which is the subject of inquiry, and the absence of insane delusions respecting the same.
    Upon the trial of the defendant for murder in the first degree his counsel requested the court to charge, “that upon an interposition of the defense of insanity, and testimony deduced in support of the plea, the presumption of sanity in the accused is prima facie overcome, and the people before there can be a conviction must satisfy the jury, by affirmative proof of saneness, that the accused was not mentally diseased at the time of the shooting. ” The court said: “I will not charge that, and I make this explanation about it, that the rule as to sanity which governs the presumption is that every man is presumed to be sane, and that when a defendant accused of crime avers the plea in his protection he must prove it, it is his issue. But if, on the whole proof, there is a reasonable doubt of sanity you will give the prisoner the benefit of that doubt upon that issue as upon any other.”

      Held, no error.
    "The counsel for the defendant requested the court to charge, that to meet the requirements of the law and of justice the verdict must be the result of twelve individual judgments, uninfluenced by the separate judgment of any one or more of the persons composing the jury; and again, that it was the duty of the jurors to disagree if upon the evidence in the case each of them for himself, uninfluenced by the judgment of the others, had any reasonable doubt of the guilt of the accused. The court charged, “they have to make up a verdict as to which they all agree. I will say nothing more,” and declined to charge further.

      Held, no error.
    Appeal from a judgment of the Court of Oyer and Terminer of Queens county, convicting tbe defendant of murder in tbe first degree.

      James W. Covert, for tbe appellant.

      Benjamin W. Downing, district attorney, for the people.
   Dykhan, J.:

The defendant was tried for the crime of murder in the first degree and convicted of that offense, and this is an.appeal from the judgment of conviction. The defendant and his victim, liichard Conisky, were both members of the police force of Long Island City, and, on the morning of the homicide, he came to the station-house from his duty and went into the back room. There he called a brother officer and requested him to fix a revolver which he had in his hand. There was then one ball cartridge in the chamber; after it was put in order, it was returned to the defendant, who inserted two more balls in the chambers. Then he returned to the front room, where the deceased was sitting, and asked him why he was following him around nights, and the deceased said “ to make you do your duty.” The defendant then said to him “ well, I will kill you dead,” and immediately discharged the pistol once. The ball passed through his brain, and caused his instant death. When asked why he did it, he said he could not help it, that the deceased had been following him around, and, in reply to some other remark, he said “well, it'can’t be helped now, it is done.” This transpired in presence of two other police officers.

Insanity was interposed on the trial for a defense, and many witnesses were examined on the subject. The jury rejected the plea, and found the defendant guilty of the crime.

There was no controversy respecting the main facts. The two officers who witnessed the fatal shot were examined, and gave a circumstantial account of the occurrence, and their testimony was in no wise contradicted.

There were very few exceptions taken on the trial, and none of them present any serious questions. Some exceptions were taken to the charge of the court to the jury, which call for examination. This was said: “ The test of responsibility for criminal acts, where insanity is asserted, is the capacity of the accused to distinguish between right and wrong at the time, and with respect to the act which is the subject of inquiry, that is the test of insanity. * * * But if he knew the effect of his acts, if he knew that it was wrong to kill, and that he was liable to punishment for it, he is responsible to punishment, although he may have had insane delusions.” At the close of the charge, the counsel for the defendant said: If your honor please, I desire formally to except to that part of the charge coming from the court to the jury, in which this idea is involved — the power to distinguish between right and wrong is the sole test of responsibility. I also except to this other part of the charge of the court — if the defendant knew it was wrong to shoot he would be guilty even though he had insane delusions.” The Court: I do not say that, I did not mean that he must have insane delusions in respect to the act, I say that if he knew right from wrong in respect to the act done, at the time it was done, then he is amenable to punishment. If there has crept into the charge any such expression as that he is responsible even though he liad insane delusions with respect to the act, I do not intend to say so, and I do not think I have said it.” Counsel for the defendant: I will have this entered on the minutes, so that if it has crept into-the charge I may have the benefit of any ill effect that it may have had with the jury. £ If he knew right from wrong, he was guilty, even though he had insane delusions.’ ”

It thus appears that if the charge as given respecting the possession of insane delusions by the accused was erroneous, it was cured by the modification and explanation, but the test of responsibility laid down was also the subject of exception, and must be examined.

The schoolmen of medical science, versed in the intricacies of mental unsoundness and disorder, claim that in addition to mental capacity sufficient to distinguish between right and wrong in relation to the act committed, juries in criminal cases where insanity is interposed as a defense should be instructed to require a mind with power to control itself in action before they will convict of crime. They claim that there is often found a state of mental disorder in which the will cannot act, although the perception be-perfect, that knowledge of right and wrong may be perfect, while the power to choose may be paralyzed; and that when such a state-of mind has resulted from permanent disorder, its possessor is .not an accountable being.

This doctrine, however, has attained no permanent place in the field of jurisprudence. In this State the test of responsibility is the capacity to distinguish between right and wrong at the time the act was committed and in respect thereto; and the law as administered here in criminal cases does not find irresponsibility where the-claim is that capacity to distinguish right from wrong exists without the power to choose between them. (Flanagan v. The People, 52 N. Y., 467.)

The law imposes on all persons the duty to control their will power and resist evil influences and desires to perpetrate wrongs and commit crimes; and they cannot secure immunity from punishment by permitting their will to pass beyond their control by the violence of frenzy or the paroxysm of rage. If they have capacity and understanding to know that the act they are about to commit is forbidden by the laws of G-od and man, they must be held responsible. Human life would be very insecure under any other rule of law, for anger and a desire for revenge may unseat the reason of a man perfectly sane and cause him for a time to lose all control of his conduct or his will. The charge of the court in this case was therefore a correct exposition of the law on the subject, and the exception thereto is unavailing.

The counsel for the defendant requested the court to charge the jury: That upon an interposition of the defense of insanity and testimony deduced in support of the plea, the presirmption of sanity in the accused is, prima facie, overcome, and the People, before there can be a conviction, must satisfy the jury by afiirmative proof of saneness that the accused was not mentally diseased at the time of the shooting.” The court: “I will not charge that, and I make this explanation about it, that the rule as to sanity which governs the presumption is that every man is presumed to be sane, and that when a defendant accused of crime avers the plea in his protection, he must prove it — it is his issue. But if on the whole proof there is a reasonable doubt of sanity, you will give the prisoner the benefit of that doubt upon that issue as upon any other.” The counsel for the defendant: “ I except to the declination to charge expressly as requested in this proposition, and to the charge as given on that point.”

Neither of these exceptions are well taken. While the utter irresponsibility of a mad man, or a man who lacks sound memory, is recognized by our statute as well as by the common law, yet the legal presumption is in all cases that every man is sane, because sanity is the normal condition of men. ■ The defense of insanity is an aifirmative defense to be established by the accused. It is true. that on the interposition of the defense of insanity the question was in the case and the burden was on the prosecutor to show that the crime charged was committed by the defendant, and that he was at the time of its commission in a condition of mind to be responsible therefor. On the first point affirmative proof was necessary in the first instance but not on the second, because the presumption of sanity rendered it unnecessary and cast the burden of proof on the defendant, that is to say, the legal presumption of sanity was sufficient, until repelled, to establish the sanity of the defendant. If no evidence ,was adduced by the accused to establish his defense it failed. If he did produce such proof, then the burden was again on the public prosecutor to satisfy the jury on the whole evidence of the sanity and responsibility of the defendant. (O'Connell v. The People, 87 N. Y., 380; Brotherton v. The People, 75 id., 159.) These rules were not violated by this charge, because the jury was told that if on the whole proof there was a reasonable doubt of sanity the defendant must have the benefit of that doubt upon that issue as upon any other.

Counsel for the defendant asked the court to charge specifically that if the jurors have, or any of the jurors has, a reasonable doubt as to the sanity of the accused at the very time of the shooting, the accused is entitled to the benefit of that doubt; and if the doubt is shared by all the twelve there should be a verdict of acquittal, and if the doubt is held by one or more of the jurors there should be a disagreement. This was refused, except as charged, and the defendant excepted. This refusal must be sustained. It was not the duty of the court to charge the jury that there should be a disagreement in any emergency, and the other portion of the request had been substantially charged before.

Again, the counsel for the defendant requested the court to charge yes or no to this: That to meet the requirements of the law and of justice the verdict must be the result of twelve individual judgments, uninfluenced by the separate judgment of any one or more of the persons composing the jury. The court: They have to make up a verdict as to which they all agree. I will say nothing more.” To this there was an exception which cannot be sustained.

Another request to charge was as follows : That it was the duty of jurors to disagree if, upon the evidence in the case, each of them for himself, uninfluenced by the judgment of the others, has any reasonable doubt of the guilt of the accused. This was declined except as charged, and the defendant excepted. In relation to these last two requests, it is sufficient to say that it was not the duty of tke court to charge the jury that the individual judgment of a juror was to be uninfluenced by the judgment, of his compeers, or that it was the duty of jurors to disagree if they had any doubt of the guilt of the accused on the evidence, or to resist the influence of the judgment of the other jurors. The law in no case contemplates the disagreement of a jury. On the contrary, it is the duty of jurors to agree if they can do so without the surrender of conscientious convictions. It is their duty to receive the law from the court and to examine and discuss the testimony with each other during their deliberation, to harmonize their views and reach a unanimous conclusion, if consonant with a proper sense of their judgment. The court did charge the jury on the request of the defendant, that if on the whole case there was a reasonable doubt, the defendant was entitled to the benefit of the doubt.

This examination of the legal questions involved closes with a conclusion adverse to the appellant. So, also, must the examination of the facts close witli the same result. The act of the defendant which resulted in the death of his victim, was not the offspring of delusion or disease, or raving madness, and the testimony was sufficient to hold the defendant responsible for his act within the rule of legal responsibility laid down in the charge. So the testimony was sufficient to justify the finding by the jury of deliberation and premeditation. It showed the absence of impulse, deliberate intention, reflection and determination, and a selection and preparation of'the means of death. We cannot interfere.

The judgment of conviction should be affirmed.

Pratt, J., concurred in the result.

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

Judgment and conviction affirmed.


source: Caselaw Access Project

author: Barnard, P. J.;

license: Public Domain

text:
    GEORGE ROSS, Appellant, v. ELIZABETH M. KERNAN, Respondent.

      Landlord and tenant — attornment of a tenant to one who has acquired the landlords title, upon a sheriff’s sale under an execution and a wa/rrant of dispossession in summary proceedings based thereon — effect of a subsequent reversal of the judgment on which the summary proceedings were based — right of the tenant to deny his lessor’s title.

    Appeal from a judgment in favor of the defendant, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    The action was brought to recover rent alleged to be due to the plaintiff under a lease of certain premises given by him to the defend ant. The defense was that the plaintiff had no title to the premises or right to lease the same.
    The court at General Term said: “ The defendant is placed in a perplexing position. She took a lease of premises in Kings county, from one B. M. Stillwell. While her lease was running she was dispossessed, or rather a warrant to dispossess was issued, under the statute t osummarily recover possession of lands, to remove her from the lands. She took a lease under these circumstances from the plaintiff, who had obtained the warrant to dispossess. It appears now that one Jacob Carpenter obtained a judgment against Charlotte Stillwell, and sold the lands in 'question. Carpenter bought them in, and sold his bid to plaintiff, and plaintiff had instituted the proceedings based on the sheriff’s deed. The defendant’s deed from Ross was for six months. She paid him five months’ rent, and before she had paid the six months’ rent the judgment to dispossess was reversed by the proper appellate court as being against law and evidence. It now also appears that the sheriff’s deed is void, as the execution was issued after the death of Charlotte Still-well. After the reversal the defendant again attorned to B. M. Stillwell, his original landlord. The plaintiff claims the balance of rent under the léase, and for the subsequent occupation as one continued under him by the holding over of the defendant after the expiration of her lease from plaintiff.
    “ The attornment by defendant to plaintiff was illegal. Although it was done under an apparent judgment, yet when that was reversed the case stands just as if there never had been a judgment. (Hayden v. Blorence Sewing Machine Go., 54 N. Y., 221; Eten v. Luyster, 60 N. Y., 252.) There being no judgment, the rule that a tenant cannot deny the landlord’s title protects the old landlord from the effect of the attornment to plaintiff. The case of Hawley v. Brown (79 N. Y., 390) is not an authority against this conclusion. In that case it was held that when a defendant was dispossessed of lands and had attorned to the plaintiff, a deed given to the plaintiff while he was then in possession, by one Culver, was good under our statutes against champerty, notwithstanding the proceedings were subsequently set aside and the defendant put back in possession. That the defendant was not in adverse possession before the proceedings were annulled by relation back of his reinstatement in possession.
    “ The tenant is only estopped from denying what she has admitted. {Hesjom'd v. Walbridge, 15 N. Y., 374.)
    “ The judgment is reversed, and what has she now to oppose to the old landlord? The judgment does not estop him or her; both can sue for whatever was done under it. (2 R. S., 516, § 49.) The rents received by plaintiff, collected under the attornment under this section, can be recovered by B. M. Stillwell. If the plaintiff cannot hold the rent from Stillwell when collected, he cannot recover of the defendant for paying it directly to him.

      “ The judgment should be affirmed with costs.”

      M. M. Silliman, for the appellant.

      Wm. L. Whiting, for the respondent.
   Opinion by

Barnard, P. J.;

Pratt, J., concurred ; Dykman, J., not sitting.

Judgment and order denying new trial affirmed, with costs.


text:
    In the Matter of the Judicial Settlement of the Account of ISAAC F. BROWN, as Executor, etc., of DEBORAH ORSOR, Deceased.

      Will — probate of — when both witnesses must be examined — a witness who must be examined cannot take anything under the will — 2 B. 8. {Bdm. ed.), 65, sec. 50 — tiie rule is not changed by the subsequent legislation as to the examination of interested witnesses.

    Appeal from a decree of the surrogate of Westchester county, judicially settling the accounts of the executor of Deborah Orsor, deceased.
    Deborah Orsor, by her last will and testament, gave her residuary estate to Isaac F. Brown and Margaret Miller. The same persons were made executors. There were two witnesses to the will, Isaac F. Brown and Daniel B. Foster; both lived in this State, and both were examined upon the proof of the will, and there were but these two witnesses to the will. The statute upon the subject is as follows: “ If any person shall be a subscribing witness to the execution of any will wherein any beneficial devise, legacy, interest or appointment of any real or personal estate shall be made to such witness, and such will cannot be proved without the testimony of such witness, the said devise, legacy, interest or appointment shall be void so far only as concerns such witness, or any claiming under him ; and such person shall be a competent witness and compellable to testify respecting the execution of the said will in like manner as if no such devise or bequest had been made.” (2 R. S. [Edm.]: 65, § 50.)
    The court at General Term said: “ The will could not be proven without the testimony of Brown. Two witnesses at least are, required to a will. This probate required both witnesses to be produced and examined. Two at least of the witnesses to such will,.if so many are living in this State, and of sound mind, and are not disabled from age, sickness dr infirmity from attending, shall be produced and examined. (4 R. S. [Edm.] 488, § 10.) As to Brown, the legacy was void. A surrogate may believe one witness and not the other, and thus it is claimed that a will can be proven without two witnesses in fact. The statute does not mean this. A will must have two witnesses, and both must be sworn to prove it, with certain exceptions,. which do not include the present case. The testimony of the witness, of necessity, must be given; the will cannot be proven without it, and the legacy consequently is void. The subsequent legislation in reference to the examination of inters ested witnesses does not repeal by implication these statutes. Such repeals are not favored, and there is no inconsistency in both statutes standing together.
    “ The surrogate’s decree should be affirmed, with costs against the appellant.”

      Francis Larkin, for Isaac F. Brown, executor, appellant.

      Charles M\ Rail, for Mary Dubois and others, respondents.
   Opinion by

Barnard, P. J.;

Dtkman and Pratt, JJ., concurred.

Decree of surrogate,affirmed, with costs against the appellant.


author: Dykman, J.;

text:
    CATHARINE R. PRENTISS, v. CHARLES M. CORNELL and Others In the Matter of JOSEPH HUSSON, Jr., Purchaser, Appellant.

      Purchaser at a foreclosure sale— when he will he compelled to complete the purchase, although two of the defendants were lunatics, for whom no committees had been appointed.

    Appeal from an order made at a Special Term, compelling a purchaser to accept and complete his purchase of premises struck down to him on the sale under the judgment in this action.
    The action was for the partition or sale of lands, and the proceedings seemed to have been regularly taken. The objection raised was that two of the adult defendants were persons of unsound mind at the time the action was commenced, but had not been judicially found or declared so to be. They were personally served with the summons and complaint, and one of them appeared in the action by an attorney. The other did not appear.
    It did not directly appear in the papers that either of these defendants have ever been judicially declared incompetent to manage his affairs, or that any committee has been appointed for either.
    The court at General Term said: “ The objection raised is insufficient to release the purchaser from his obligation to complete it; assuming that these defendants were non suijuris at the commencement of this action, they were, nevertheless, liable to be sued. The mental incapacity or incompetency of parties presents no interference with the enforcement of legal liabilities. The institution of legal proceedings against lunatics is not inhibited. They may be sued and actions may be maintained against them, and whether their insanity will constitute a defense depends on the circumstances of the case. (Sanford v. Sanford, 62 N. Y., 553; Mut. Life Ins. Co. v. Hwnt, 14 Hun [Sup. Ct.], 169 ; Id., 79 N. Y., 541.)
    “ In this case no proceedings had been instituted at the time of the commencement of this action to inquire into the mental condition of these defendants, and they stood before the world with the presumption of sanity in their favor. Besides, it must be borne in mind that there is no allegation of wrong to these defendants, and no complaint comes from them or their friends of any injustice. The question relates solely to the jurisdiction of the court and the regularity of the proceedings. The personal service of the summons and complaint conferred jurisdiction of these persons, and the judgment rendered was not even erroneous. (Crijopen v. Culver, 13 Barb., 428; Sternberg v. Sohooleraft, 2 id., 153.)
    “ Complaint is made of some minor irregularities in practice, but they are unimportant and quite insufficient to disturb the proceedings.
    “The order should be affirmed, with costs and disbursements.”

      John II. Bergen, for the purchaser, appellant.

      J. Stewart Boss, for the respondent.
   Opinion by

Dykman, J.;

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

Order affirmed, with costs and disbursements.


author: Barnard, P. J.

text:
    Anna K. Stoessel, as Administratrix, etc., Respondent, v. The Long Island Railroad Company, Appellant.

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

Barnard, P. J.


text:
    Charles M. Krich, Respondent, v. The Long Island Railroad Company, Appellant.
   ■ — Judgment and order denying new trial affirmed, with costs, upon opinion in preceding case, as stipulated.


author: Dykman, J.

text:
    David Cromwell, Treasurer, etc., Respondent, v. John Henry Hull and others, Appellants.

   — Appeals from three orders. Orders affirmed, with costs and disbursements. Opinion by

Dykman, J.


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

   —"Writ of certiorari dismissed at Special Term since argument. No decision.


author: Pratt, J.;

text:
    Ira B. Tuthill, Appellant, v. James Wilson and others, Respondents.

   — Order affirmed, with costs. Opinion by

Pratt, J.;

Dykman, J., not sitting.


text:
    Andrew Koch, Guardian, etc., Respondent, v. Otto Meyer, Appellant.

   — Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Miles Perry, Respondent, v. Cornelius B. Tompkins, Appellant.

   — Order affirmed, with costs and disbursements. Opinion by

Dykman, J.


text:
    Oscar Waring, Respondent, v. Frances A. Waring, Appellant.

   Judgment modified by striking out the part awarding costs against defendant, and as modified affirmed, without costs of appeal to either party. Opinion by

Pratt, J.;

Dykman, J., not sitting.


text:
    Allison M. Archer, Appellant, v. Smith Williams, Respondent.

   — Judgment of County Court affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Orville Dingee, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

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

Pratt, J.;

Barnard, P. J., not sitting.


text:
    Denton Fowler, Respondent, v. Thomas Magee, Appellant.—
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Charles A. Merritt, Respondent, v. John P. Kinney and others, Appellants.

   —Judgment and order striking out demurrer to complaint as frivolous affirmed, with costs. Opinion by

Dykman, J.


text:
    Daniel Ritchie v. Robert Weir.
   — Motion for re-argument denied, with ten dollars costs. Opinion by

Barnard, P. J.


text:
    Richard W. Peck, Appellant, v. Benjamin T. Babbitt, Respondent.—
   Order striking out portion of complaint reversed, with costs and disbursements, and motion denied, with ten dollars costs. Opinion by

Barnard, P. J.;

Pratt, J., not sitting.


text:
    Catharine G. Weir v. Daniel Richie.—
   Motion to correct order of General Terra denied, with, ten dollars costs. Opinion by

Barnard, P. J.


text:
    Alexander E. Orr, Respondent, v. Richard O’Shea and others, Appellants.

   — Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    The People of the State of New York ex rel. Hiram Phillips, as Commissioner, etc., Respondent, v. The New York, West Shore and Buffalo Railway Company, Appellant.

   — Order granting alternative writ of mandamus affirmed, with costs and disbursements. Opinion by

Pratt, J.;

Barnard, P. J., not sitting.


text:
    Minnie Fuchs, Respondent, v. Michael Meyhog, Appellant.—
   Papers not submitted.


author: Pratt, J.

text:
    In the Matter of the Will of Zipporah Bertine, Deceased.—
   Decree of surrogate admitting will to probate affirmed, with costs. Opinion by

Pratt, J.


text:
    Sylvia A. White, Respondent, v. William Law, Executor, etc., Appellant.

   — -Judgment reversed and new trial granted at circuit, costs to abide event. Order of reference vacated. Opinion by

Dykman, J.


text:
    John Eylers, Appellant, v. Juliaette Eylers, Respondent.—
   Order affirmed, with costs and disbursements. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    R. Oliver Phillips, Respondent, v. Albert J. Graeffe, Appellant.

   — Order reversed, with costs and disbursements. Opinion by

Barnard, P. J.


text:
    William F. G. Shanks, Respondent, v. Joseph Hart, Appellant, Impleaded, etc.

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

Pratt, J.


text:
    Kathleen Hickey, Respondent, v. John P. Taafe, Appellant.

   Order affirmed, with costs and disbursements. Opinion by

Pratt, J.


text:
    Ida S. Bush, Respondent, v. William B. Post and others, Appellants.

   — Order overruling defendant’s demurrer affirmed, with costs. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    The People of the State of New York, Respondent, v. Theodore Hoffman, Appellant.

   — Conviction and judgment affirmed. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


author: Pratt', J.;

text:
    Anna E. Comer, Respondent, v. Charles Robinson, Appellant.—
   Order affirmed with costs. Opinion by

Pratt', J.;

Dykman, J., not sitting.


text:
    The People of the State of New York ex rel. Thomas Casey, Appellant, v. James Jourdan, as Police Commissioner, etc., Respondent

   — Order dismissing relator affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Abraham Lott, as Committee, etc., v. Henry Hedeman.
   — Order-affirmed, with costs and disbursements. Opinion by

Pratt, J.


text:
    Jeremiah Sullivan, Respondent, v. Mary C. Brick, Appellant.—
   Order reversed, with costs and disbursements, and motion granted with costs. Opinion by

Barnard, P. J.


text:
    Barbara Sax, Executrix, etc., Appellant, v. Francis Lanzer and another, Respondents

   —Judgment affirmed, with costs. Opinion, by

Barnard, P. J.;

Pratt, J., not sitting.


text:
    Bertrand Clover. Jr., Respondent, v. The Greenwich Insurance Company, Appellant.

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

Pratt, J.


text:
    In the Matter of Probate of the Will of John Hancock, Deceased.—
   Order reversed, with costs and disbursements. Opinion by

Pratt, J.;

Dykman, J., not sitting.


text:
    James C. Cornell, Plaintiff, v. Mary P. Cornell, Defendant.

   Motion for new trial denied, with costs. Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


text:
    Margaret Bussy, Respondent, v. Patrick Lambert, Executor, etc., Appellant.

   — J udgment affirmed, with costs. Opinion by

Dykman, J.


text:
    Henry Hoffman, Respondent, v. William S. Marvin and others, Appellants.

   — Order reversed, with costs and disbursements, and motion denied, with costs. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


author: Barnard. P. J.

text:
    In the Matter of Daniel T. Post.—
   Decree of surrogate reversed, with costs to appellant, and proceedings remitted to surrogate. Opinion,by

Barnard. P. J.


text:
    John Baldwin, Appellant, v. Nathaniel Van Sickle and others, Respondents.

   — Order granting new trial affirmed, with costs to abide event. Opinion by

Pratt, J.


text:
    David J. Garth, Appellant, v. Eymer Cappelman, Respondent.

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

Barnard, P. J.;

Dykman, J., not sitting.


author: Barnard, P. J.,

text:
    August Adler, an Infant, etc., Respondent, v. Charles F. A. Hinrichs, Appellant.

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

Barnard, P. J.,

and Pratt, J.; Dykman, . J., not sitting.


text:
    James J. Healey and another, Appellants, v. Patrick Sheridan, Respondent.

   — Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    Nathaniel S. Ackerly, Respondent, v. Nicholas W. Godfrey, Appellant.

   — Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    David Davis, Respondent, v. Thomas M. Fleming, Appellant.

   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Nathaniel S. Ackerly, Respondent, v. Nicholas W. Godfrey, Appellant.

   — Judgment affirmed, with costs. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    George W. Kelsey and another, Respondents, v. Thomas M. Moore, Appellant.

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

Pratt, J.


text:
    George S. Cahill, Respondent, v. George J. Smith, Appellant.

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

Barnard, P. J.


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

   Papers not submitted.


text:
    Charles Raht, Executor, etc., Plaintiff., v. Henry Y. Attrill and others, Defendants.—
   Order affirmed, with costs and disbursements. Opinion by

Dykman, J.;

Pratt, J., not sitting.


text:
    Elizabeth Cross, Appellant, v. John A. Cross and another, Respondents.

   — Judgment reversed and new trial granted, costs to abide event; order of reference vacated. Opinion by

Barnard, P. J.;

Pratt, J., dissenting.


text:
    Valentine Hendrickson, Respondent, v. Luciano Conterno, Appellant.

   Judgment of County Court affirmed, with costs. Opinion by

Pratt, J.


text:
    Henry A. Ockershausen, Respondent, v. George P. Ockershausen, Appellant.

   — Order of surrogate reversed, with costs to be paid by Henry A. Ockershausen, personally. Opinion by

Dykman, J.


text:
    Gesche Koch, Respondent, v. Otto Meyer, Appellant.

   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    The People of the State of New York ex rel. The German American Loan and Trust Company, Respondent, v. Samuel Richards, Register, etc., Appellant.—
   Order granting peremptory writ of mandamus reversed, with costs, and motion denied, with costs. Opinion by

Barnard, P. J.


text:
    Jacob H. Gebhard and others, Commissioners, etc., Respondents, v. John Scott and another, Appellants.

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

Pratt, J.;

Barnard, P. J., not sitting.


text:
    James W. Finley, Administrator, etc., Appellant, v. Samuel S. Bent, Executor, etc., and others, Respondents.

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

Barnard, P. J.;

Dykman, J., not sitting.


text:
    In the Matter of the Estate of James Odell.
   — Parts of decree appealed from affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Clarissa Dale, Respondent, v. David Main, Appellant.

   — Order denying new trial affirmed, with costs.


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

text:
    Same v. Same.
   — Judgment affirmed, with costs. Opinions by

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


text:
    Harvey Rozell and others, Commissioners, etc., Respondents, v. Eliza Andrews, Appellant.

   — Judgment affirmed, with costs. Opinion by

Pratt, J.;

Barnard, P. J., not sitting.


text:
    Augustus R. Griffin, Receiver, etc., Respondent, v. The Long Island Railroad Company, Appellant.

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

Dykman, J.;

Barnard, P. J., not sitting.


text:
    Daniel Vail, Respondent, v. The Long Island Railroad Company, Appellant.

   — Judgment affirmed, with costs. Opinion by

Pratt, J.;

Barnard, P. J., not sitting.


text:
    Ann Fitzpatrick, Respondent, v. The City of Brooklyn, Appellant.—
   Judgment and order denying new trial affirmed, with costs. Opinion by

Dykman, J.;

Pratt, J., dissenting.


text:
    Catharine White, Appellant, v. Herman Weschler and another, Respondents.

   — Judgment affirmed, with costs. Opinion by

Pratt, J.


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

text:
    Isaac F. Tysen, Respondent, v. Charles H. Tompkins, Appellant.—
   Judgment affirmed, with costs. Order denying motion to amend notice of appeal affirmed; order granting leave to serve supplemental reply affirmed. Opinions by

Barnard, P. J., and Dykman, J.


text:
    Harriet L. Scott, Appellant, v. John H. Gregory, Respondent.—
   Judgment affirmed, with costs. Opinion by

Pratt, J.;

Dykman, J., not sitting.


text:
    William N. Burt, Respondent, v. The Village of Port Jervis, Appellant.

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

Dykman, J.;

Barnard, P. J., not sitting.


text:
    George F. Neubauer, Appellant, v. The New York, Lake Erie and Western Railroad Company, Respondent.

   — Judgment affirmed, with costs. Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


text:
    Ellen Greany, Respondent, v. The Long Island Railroad Company, Appellant.

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

Dykman, J.;

Barnard, P. J., not sitting.


text:
    Eliza Allison, Appellant, v. The Village of Middletown, Respondent.

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

Pratt, J.;

Dykman, J., not sitting.


text:
    William H. Catlin, Respondent, v. Alembert Pond and others, Appellants.

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

Pratt, J.;

Barnard, P. J., not sitting.


text:
    In the Matter of the Estate of Margaret E. Johnson, Deceased.

   Order appointing temporary administrator reversed, with costs. Opinion by

Dykman, J.


text:
    John D. McCaffrey, Appellant, v. The Atlantic Avenue Railroad Company, Respondent.

   — Judgment affirmed, with costs. Opinion by

Pratt, J.


text:
    John Mackey and others, Appellants, v. Lucretia M. Vanderhoff and others, Respondents.

   — Decree of surrogate refusing probate reversed, and issues ordered to be tried by a jury in Queens county, whether will was duly executed or obtained by fraud or undue influence. Opinion by

Barnard, P. J.


text:
    Ellen J. Dowd, Respondent, v. James Fitzpatrick, Appellant.

   Judgment affirmed with costs. Opinion by

Dykman, J.


text:
    Theodore B. Gates, Appellant, v. Henry E. Young and others, Respondents.

   — Order affirmed wih costs. Opinion by

Pratt, J.;

Dykman, J., not sitting.


text:
    Charles S. Humphrey, Respondent, v. George Scissin, Appellant.—
   Judgment reversed and new trial granted at circuit. Opinion by

Pratt, J.


text:
    Robert Rogers, Executor, etc., Respondent, v. Augustus L. Case and others, Appellants.—
   Judgment reversed, and will so construed as to pass the portion in dispute under general residuary clause; costs to all parties out of the fund. Opinions by

Barnard, P. J., and Dykman, J.


text:
    Charles Kirchner, Respondent, v. Abraham P. Black, Appellant.

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

Pratt, J.;

Barnard, P. J., not sitting.


text:
    Annie E. Cornell, Respondent, v. Augustus H. Ward, Appellant.

   — Judgment affirmed with costs. Opinion by

Dykman, J.


text:
    William Doyle, Respondent, v. Charles H. Mead and another, Appellants.

   — Judgment of County Court affirmed with costs. Opinion by

Barnard, P. J.


text:
    William Owens, Respondent, v. Joshua T. Cromwell, Appellant.

   — Judgment affirmed, with costs. Opinion by

Pratt, J.


text:
    William H. Argall, Plaintiff, v. Joseph Bachrach, Defendant.

   Judgment for defendant on submitted case. Opinions by

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


text:
    Matter of Application of Henry Frost to Disbar Henry Dailey, Jr.
   --Petition dismissed. Opinion by

Barnard, P. J.


text:
    In the Matter of the Charge Preferred Against J. Edward Webb.
   — Deferred to Charles B. Herrick to take proofs and report at next General Term. Copies of charges to be served and fourteen days’ notice to be given before the referee after service of charges. Baker and Minchaurer assigned to prosecute.


author: Brown, J.

text:
    The Prospect Park and Coney Island Railroad Company, Appellant, v. S. Stryker Williamson and others, Commissioners, Respondents.

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

Brown, J.


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

   — Order affirmed, with costs and disbursements. Opinion by

Pratt, J.


text:
    The Prospect Park and Coney Island Railroad Company, Respondent, v. S. Stryker Williamson and others, Appellants.—
   Order of Mr. Justice Pratt affirmed, with costs and disbursements.


author: Davis, P. J.:

text:
    In the Matter of the Petition of MARY I. HOYT and HELEN M. HOYT for an Allowance out of the Estate of JESSE HOYT, Deceased.

      Surrogate — power of, to direct an executor to pay a legacy pending an application to revoke the pi'dbate of a will — Code of Civil Procedure, secs. 2717, 2718, 2719, 2650.
    Section 2650 of tiio Code of Civil Procedure provides that where upon a petition duly filed to revoke the probate of a will, citations have been' issued and served, “ the executor or administrator with the will annexed must suspend, until a decree is made upon the petition, all proceedings relating to the estate, except for the recovery or preservation of property, and for the collection and payment of debts, and such other acts as he is expressly allowed to perform by an order of the surrogate made upon notice to the petitioner. ”

      Held, that this section was not intended to enlarge or to restrict the powers of the surrogate in respect to orders, but simply to restrict those of the executor or administratoi-.
    That the surrogate might, under the said section, authorize the executor or administrator to do any act or make any payment, the performance or making of which the surrogate was authorized by other sections of the Code to direct.
    After service upon an executor of a citation issued upon a petition for the revocation of the probate of a will, the surrogate may, upon the presentation of a petition setting forth the facts prescribed in sections 2717, 2718 and 2719 of the Code of Civil Procedure, make an order, in the manner provided in section 2650, directing the executor to pay the whole or any portion of a legacy or distributive share to the person entitled to receive the same under the will.

      Mailer of McGowan (28 Hun, 246) explained and distinguished.

      Appeal from a decree of the surrogate denying the prayer of the petitioners for an allowance out of the estate of Jesse Iioyt, to be charged to the petitioners either as heirs-at-law or legatees under the will of said Jesse Hoyt, as the case may be, depending on the result of the contest touching his will.

      W. D. Shvpman, for the petitioners, appellants.

      Elihu Root, for the executors, respondents.
   Davis, P. J.:

The will of the late Jesse Hoyt was formally admitted to probate on the 29th of August, 1882, and on that day letters testamentary were issued by the surrogate to James W. Jackson, Albert M. Hoyt and Samuel W. Hoyt. The executors duly qualified and entered upon the performance of their duties. Afterwards and on or about the third of October, a petition was duly filed to revoke the probate and have the will set aside on the ground of want of testamentary capacity in the testator, and on other grounds set forth in said petition. Thereupon citations were duly issued pursuant to the provisions of section 2649 of the Code of Civil Procedure, and such citations were served upon the above named executors. The effect of the service of such a citation is declared by section 2650 in these words : After service upon him of a citation issued, as prescribed in the last three sections, the executor or administrator with the will annexed must suspend, until a decree is made upon the petition, all proceedings relating to the estate, except for the recovery or preservation of property and for the collection and payment of debts and such other acts as he is expressly allowed to perform by an order of the surrogate, made upon notice to the petitioner.” The effect, therefore, of the service of a citation is not to destroy, but simply to suspend in part the functions of the executors. The letters testamentary remain in full vigor for all purposes, subject only to the suspensory restrictions upon the action of the executors declared in section 2650 above cited. But the executors may proceed for the recovery or preservation of property and the collection and payment of debts, and may do such other acts in their official capacity as they are expressly allowed to perform by the order of the surrogate, made upon notice to the petitioner.

It was held by this court, In the Matter of McGowan (28 Hun, 246), that this section was not intended to enlarge the powers of the surrogate in respect to orders that may be made by him, but to restrict those of an executor so far as relates to all his powers beyond those expressly permitted to be performed by the previous provisions of the section. That is to say, that if the executor desired or was required to perform any act, except in preservation of property and the collection and payment of debts, which he could have lawfully performed, but for the interposition of the proceedings to revoke the probate, he can do so only after the service of the citation under an order of the surrogate expressly allowing such performance. This court, therefore, held that the surrogate could not, by force of the language of this section, make an order for the payment over to a legatee of a portion of a legacy as a mere matter either of discretion or arbitrary power and that the power to make such an order must be found in some other provision of the Code before it can '.be exercised. But the court did not hold, nor intend to hold, that if a power existed in, or was conferred by any other section upon showing any prescribed state of facts or condition of things, the surrogate could not proceed to make an order under that power allowing an act which the executors could thereupon lawfully perform or execute, notwithstanding the suspension created by section 2650. In respect of the act thus lawfully authorized, the suspension of that section would cease to operate, and the executor would act in performing it the same as though his authority under his letters had not been suspended. The legal effect of that portion of section 2650, which provides that the executor may do “ such other acts as he is expressly allowed to perform by an order of the surrogate, made upon notice,” is to declai’e that in respect to such acts, his letters testamentary resume their original force, and he may proceed to perform them, as though no steps for revocation of the probate had ever been taken.

Among the acts which an executor may lawfully perform under his letters testamentary, when authorized by a decree of the surrogate, are those specially named in section 2717 of the Code, one of which is that after one year has expired since letters were granted, he may pay the whole or a just proportional part of a legacy, or other pecuniary provision under a will, to the person entitled thereto, when so directed by a decretal order of the surrogate. It is • not necessary to comment upon the plain object of this provision. Section 2719 enlarges the power conferred by the section just quoted for the purpose of meeting an additional class of exigencies that may often arise in the execution of wills or the administration of estates. It provides that in respect of legacies or other pecuniary provisions under wills, oF distributive shares in cases of intestacy, the surrogate may entertain the petition mentioned in section 2717, at any time after letters are grafted, although a year has not expired. But to set the provisions of this section in operation, certain conditions of fact must be shown to exist, which are clearly pointed out by the section itself. The amount of money and the' value ot' other property in the hands of the executor or administrator applicable to 'the payment of debts, legacies and expenses, must be shown to exceed by at least one-third the amount of all known debts and claims against the estate, and all legacies which are entitled to priority over the petitioners claim, and of all legacies or distributive shares of the same class; and that the payment or satisfaction of the legacy, pecuniary provision or distributive share or some part thereof is necessary for the support or education of the petitioner. In such a case the surrogate is clothed with ¡liscretion to make a decree directing payment or satisfaction accordingly as the facts may appear, ujion the filing of a bond approved by the surrogate in the form indicated, conditioned as prescribed by the section. Under this section the surrogate is clothed with power, therefore, to make an order after letters testamentary have been granted, although a year has not expired, when, in his judgment, a portion of a legacy, pecuniary provision, or distributive share, is necessary for the support of the petitioner. ■ The section was obviously intended to meet such cases as might and often do arise where the anticipation of a portion or the whole of a legacy, or pecuniary provision, is shown to be necessary for the support of the party who will be ultimately entitled to receive it.

This brings us sharply to the question on which the case before us depends ; and that is, whether the provisions of the several sections 2717, 2718 and 2719 are operative only in cases of testacy, where letters testamentary have issued upon an undisputed and final probate of a will over which there is. no contest. If that limitation is contained in these statutes, then a case is not presented by the petition in which the surrogate has power to make the order prayed for. But if, by the true construction of the sections, the power is intended to be given to make a decree or order in any case where letters testamentary have been issued, whether or not the probate is complete and final, or whether probate has been opened to further controversy by petition for revocation, then the surrogate had power to authorize the executors to do the act prayed for by the petition, and his making a decree or order to that effect would relieve, pro fanto, the executors from the suspension of their powers imposed by section 2650. It was in view of the idea that this latter might be held to be the case, that this court intimated, In the Matter of McGowan (supra), that if those proceedings had been taken under the sections now under consideration, upon proper showing of the facts requisite under those sections, it might be that the surrogate would have had power to make an order similar to that then appealed from.

The distinction between the orders in this case and that is obvious. The one in McGowan’s case was based upon a petition which failed to show that payment was necessary for the support or education of any of the petitioners; for it simply showed that they were “anxious to have an advance made to them on account of their respective interests in the estate.” The power rested, therefore, not at all upon sections 2717, 2718, 2719, but wholly upon the construction of section 2650, which, it was assumed, authorized the executors to do any act which the surrogate chose to order to be done. It will be seen from the several sections of the Code that the authority is not limited to cases of testacy. It is equally within the authority of the surrogate to make an order upon an administrator, upon showing the facts required by the sections, directing him to make an advance payment.

By section 2672 of the Code, the surrogate is authorized both in cases of testacy and intestacy, where a temporary administrator has been appointed, whose authority under the Code is substantially the same as that of an executor whose proceedings have been suspended by the provisions of section 2650, to direct the payment of a legacy or pecuniary provision, or a distributive share or just proportional part thereof, according to section 2719, “as though he were an executor or administrator.” A temporary administrator is to be appointed in cases where the granting of letters testamentary or of letters of administration is necessarily delayed by a contest upon the application therefor or by delay of the probate of a will, or in such other cases as are prescribed by the Code. The result of these provisions, as it seems very clearly to us (collating section 2672 with section 2719) is, that the surrogate may in cases of temporary administration, authorize the temporary administrator to do, under a will over which there is a contest as to its probate, acts in respect to such payments as are sought for in this case and which it is claimed he cannot do where the will has been admitted to probate and letters testamentary have been issued, but their operation suspended by an attack upon the will subsequently commenced as permitted by law. This is an incongruity which it can hardly be supposed the legislature intended to create. In eases where letters testamentary have been issued upon probate, but their operation suspended by a petition for revocation, there can be no temporary administrator. The statute in effect makes the executor to whom letters have been granted such temporary administrator, leaving him free to do substantially the same acts which such an administrator might perform but suspending his functions beyond those acts unless the surrogate expressly authorizes them to be used by a decree upon special petition. Surely no good reason can be assigned for the distinction sought to be shown between him and a temporary administrator appointed in any other contest over the will.

The power referred to as contained in section 2672 in cases of temporary administrators, was specifically granted by the amendment to the section adopted in 1881 (Laws of 1881, chap. 535), and it is said by the note of the codifiers that it was framed to obviate the difficulties supposed to exist by the learned surrogate, under the existing statutes, as he construed them in Le Bau v. Vanderbilt (3 Redf., 384, 414).

But we must find the legislative intent in the body of the statute itself; and it is easy to see that it was clearly intended by the amendment of section 2672, to confer a power in cases of temporary administration, to do the very thing sought for in this case. Though by no means a conclusive argument, yet the analogy strongly illustrates the legislative intent in granting the power contained in sections 2717, 2718) 2719, and in using the words in the several sections “ since letters were granted ” and the words “ after letters are granted.” Those words of course express ideas entirely consistent with the fact’ that such letters were granted upon complete and final probate of the will. But they are also entirely, consistent with the fact which the statutes recognize and indeed create, that letters may be granted upon a formal probate of the will which is not final, but subject under certain circumstances to contest, because the statute clearly keeps such letters in full force, and clothes the executors to whom they have been issued with certain powers of execution, without order, and certain other and more extended powers with order of the surrogate.

It did not need the restrictive language of section 2650 to prevent the executor, in case a contest was begun after probate, from paying a portion of a legacy or distributive share under section 2719 without a special decretal order of the surrogate, for in no case could lie do so under his letters till such order was first obtained. But the power clearly existed before the citation to contest the will was issued and served, and that power was not abrogated by section 2650. It still remains in the surrogate, who, in his discretion, can, when a petitioner complies with the requirements of section 2719, authorize the act to be done, in which case the suspension of section 2650 is not at all in the way.

The result to which these views lead us in this case is that the surrogate had jurisdiction under the petition to proceed and determine whether the case was one within the provisions of the statute, and in which his authority to make such an order in the premises as justice requires,” can lawfully be exercised. It was conceded on all hands that the petition presented a proper case for the exercise of the power if it existed. The only question raised was that of jurisdiction. On that question we think the learned surrogate was in error. The views of the surrogate are very ably expressed in his opinion, and we have given to them the great consideration to which they aré clearly entitled. But we think the statute is susceptible of the construction we have given it, and are glad to feel assured that there is no danger of it being abused in his hands.

The order appealed from should be reversed and the proceedings remanded to the Surrogate's Court for such order upon the facts presented as he may deem just.

Brady and Daniels, JJ., concurred.

Order reversed and proceedings remanded to the surrogate.


author: Dayis, P. J.:

text:
    CHARLOTTE L. SCHEU, Appellant, v. FREDERICA LEHNING and Others, Appellants. JOHN BIEHN, Purchaser, Respondent.

      Partition — no sale can be w'dered, in an action brought by one tenant in common of a vested remainder— Code of Civil Procedure, sec. 1533 —effect of the consent of the owner of the prior estate — a purchaser will not be compelled to accept a doubtful title.

    Although the court has, under section 1533 of the Code of Civil Procedure, jurisdiction over an action brought by one of several tenants in common of a vested remainder or reversion for a partition thereof, yet so soon as it appears that an actual partition thereof cannot be made without great prejudice to the owners, the court has no power except to direct that the complaint be dismissed. ■ It cannot direct that the property be sold.

      Quaere, as to whether a sale could be ordered if the owner of the prior estate should consent thereto, 'and agree to accept a gross sum in lieu of her interest. Such a consent is of no avail where there are infants parties to the action if the value of the particular estate cannot be accurately determined, as where the testator devised a life estate to his widow, but provided that it should determine upon her death or remarriage, reserving to her, in the latter case, her dower right.
    Appeal from an order of the Special Term denying a motion to compel a purchaser to take title under a sale in partition.

      Henry Kropf and O. Hoffman, for the plaintiff, appellant.

      J. Vcun Veohten Oloolt, for Lehning and others, defendants, appellants.

      Wyatt dk Trumble, for the purchaser, respondent.
   Dayis, P. J.:

Peter J. Lehning died, in 1867, seized of the premises sought to be partitioned by this action, leaving him surviving Frederica Lehn..ing his widow the plaintiff, his daughter by a former wife, and Julia Yan Cott, William George Lehning and Caroline Louise Frederica Lehning, his children by the defendant Frederica Lehning, all of whom are still surviving and of full age, except Caroline Louise Frederica Lehning who is an infant.

By his last will and testament he gave, devised and bequeathed to his widow the rents, issues and profits of his estate, as well real as personal, during her natural life, provided she should remain his widow. By the third clause of the will he gave, devised and bequeathed to his children, upon the death or remarriage of his widow, whichever should first occur, all the rest, residue and remainder of his estate, as well real as personal, to be divided among them equally, share and share alike, reserving, however, to his widow, in case of her marriage, her dower in his estate. By other provisions he appointed his widow guardian of the person and estate of his children during minority, and nominated her sole executrix of his will. This will was duly admitted to probate.

This action is brought by Charlotte L. Scheu, one of the devisees of the estate in remainder, for the purpose, amongst other things, of having a partition and division of the premises described in the complaint, according to the respective rights and interests of the parties, or, if such partition can not be made, that the same be sold under the direction of the court, and the proceeds divided among the parties according to their respective rights and interests. The defendants appear in the action, the infant defendant by her guardian, the other defendants by attorney. On a reference to ascertain whether actual partition could be made, the referee reported for good reasons that the property was not capable of equal partition and that the only mode of partition was by a sale. The widow filed in due form a consent that the property be sold, and an agreement to accept in lieu of her life or other interest in the premises and in satisfaction thereof a sum in gross out of the proceeds of the sale, according to her rights, to be ascertained by the report of the referee therein, “ such sum to be computed according to the principles applicable to life annuities pursuant to the Portsmouth or Northampton tables, and the seventy-first rule of this court.”

Upon the coming in of the referee’s report the infant defendant by her guardian filed exceptions to the report substantially insisting that upon the facts no sale of the premises could lawfully be made. The court overruled the exceptions and gave judgment directing a sale and division of the proceeds. The premises were thereupon sold by the referee appointed for that purpose, and at the sale were struck off to the respondent John Biehn, who paid ten per cent of the purchase-money and executed the ordinary memorandum of sale. At the time fixed for the delivery of the deed he appeared by his counsel and refused to proceed on the ground, in substance, that a good title could not be made under the judgment and sale. A motion was then made at Special Term to compel the purchaser to take title, which motion was denied and the plaintiff and the widow appealed from the order of denial.

It is now well settled that a purchase^ at a judicial sale will not be compelled by the court to take title unless the same be free from reasonable doubt. (Shriver v. Shriver, 86 N. Y., 580; Jordan v. Poillon, 77 id., 518.)

This action, so far as relates to the partition of the property, is brought under section 1533 of the Code, which is in these words: “ Where two or more persons hold as joint tenants, or as tenants in common, a vested remainder or reversion, any one or more of them may maintain an action for a partition of the real property to which it attaches, according to their respective shares therein, subject to the interest of the person holding the particular estate therein. But in such an action the property cannot be sold; and if it appears in any stage thereof that partition cannot be made without great prejudice to the owners the complaint must be dismissed. Such a dismissal does not affect the right of any party to bring a new action after the determination of the particular estate.”

This section is distinctly applicable to and controlling of the question before us. Under it the court had jurisdiction to entertain an action for the purpose, if that were practicable, of making an actual partition. But when it appeared, as it clearly does in this case, that such partition cannot be made without great prejudice to the owners, it had no jurisdiction, except to pronounce the judgment dismissing the complaint, so far as it related to that relief. Whatever may have been the law prior to the enactment of this provision relative to the right to maintain actions of partition in such cases, the Code, by.the section cited, has taken possession of the whole subject matter, and subjected it to the conditions prescribed by the section itself, so that we think an action of pai-tition cannot be maintained except only where actual partition of the property itself can properly be made.

It is supposed, however, that the consent of the widow that the property be sold, and the value of her particular estate be ascertained and paid to her, enabled the court to proceed and pronounce the judgment of sale. In the first place it may be suggested that that course of proceeding was not applicable to, the case, because her estate was one the value of which could not with certainty be ascertained under any rule or practice of the court. The estate given to her was for life if she remained the widow of the testator. Upon remarriage the estate under the devise was wholly to terminate and she be remanded to her .dower interest alone. The value of such an estate cannot be determined by the tables mentioned in the stipulation. If it be treated as an absolute life estate gross injustice may be done by paying over to her the value of such an estate divested of the condition which the testator imposed. The condition was a legal one and the courts are bound to regard, however much they may disapprove, it. Of course, if the rights of an infant did not intervene, and the parties were all- of lawful age, they might make such a mutual agreément for the disposition of the property and the division of the proceeds as should suit their interests, but that would not require the intervention of an action of partition nor the judgment of any court. When, however, a suit is brought for partition in a case of this character, especially where the rights of an infant can be affected, the court is bound to see to it that its judgment does not exceed the powers conferred by the statute.

In this case the purchaser could not under the circumstances receive a title by the referee’s deed free from reasonable question or doubt. He was not bound, therefore, to proceed and complete the purchase.

The order of the court below must be affirmed, with ten dollars costs besides disbursements.

. Brady and Daniels, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Davis, P. J. :

text:
    SHELDON COLLINS, Appellant, v. GEORGE M. BALL and AARON C. JEWELL, Respondents.

      H lection of remedies — once made is irrevocable — when the issuing of an execution upon a judgment, pending an appeal, is a waiver of all light to resort to an undertaking given thereon.

    This action was brought to recover the value of certain personal property received by the defendants from one Hart, the plaintiff’s assignor. The defense was that the defendants having become sureties upon an undertaking given by Hart, upon an appeal from a judgment recovered against him in an action brought by him against one Taylor, it was agreed that-the property, or its proceeds, should be held to secure them against loss thereby; that the judgment was affirmed and an action brought upon the undertaking against the defendants, who settled the same by paying an amount less than that claimed but greater than the value of the property in question. It appeared that the undertaking was given May 22,1877; that in September, 1878, upon the application of the respondents on that appeal made, upon affidavits made by the defendants showing their insolvency, an order was made requiring Hart to file a new undertaking within twenty days; and in case he failed so to do the judgment was to be executed as if no undertaking had been given. No new undertaking was given. After the lapse of twenty days the respondents on that appeal issued an execution upon the judgment against Hart, which was returned nulla bona. Thereafter the judgment was affirmed and the action was brought against the sureties upon the undertaking and settled by them as above stated.

      Held, that the respondents on the appeal by issuing the execution and seeking to enforce the judgment elected to rely no longer on the undertaking but to-enforce the judgment.
    That having once elected to disregard the undertaking they could hot thereafter insist upon its validity
    That the defendants had a perfect defense to the action brought against them on the undertaking, and should not for that reason be allowed the amount paid by them in settlement thereof.
    Appeal from a judgment in favor of the defendants, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

      Wakeman c& Lotting, for the appellant.

      II. F. Anderson, for the respondents.
   Davis, P. J. :

This action is brought to recover the value of certain personal property which the plaintiffs assignor, J. W. Hart, delivered .to the ■defendants to be paid for in part, and in part to be sold and the proceeds accounted for to' said Hart.

There seems to be no controversy in respect of the delivery of the property and the arrangement for the sale and accounting for the proceeds, except as to certain items which would only affect the amount to be recovered.

But the defendants allege that after receiving the property, at the request of Hart and as his sureties they executed an undertaking in an action in this court in which Hart was plaintiff and appellant, and William M. Taylor and others were defendants and respondents, and in which an appeal had been taken from a judgment which had been recovered by the defendants against Hart in said action ; and that to secure them against liability for any moneys they might have to pay upon such undertaking, Hart agreed that the property sued for in this action should remain in their hands ; and that after the termination of the appeal in which the judgment against Hart was affirmed, the defendants were sued upon their undertaking by the respondents in the action in which that instrument was given, and that, after the commencement of that suit, they settled the same by paying a less sum than the judgment recovered against Hart, but an amount greater in value than the property held by them as security. The undertaking executed by the defendants was in the form required by the Code. It was made on or about the 22d of May, 1877, and bn that day the defendants each justified in the sum of $2,500. On the filing of this undertaking the proceedings on the appeal were stayed.

Afterwards, and in September, 1878, upon separate affidavits made by the defendants, showing in substance that they had become insolvent and were unable to respond to the exigency of the undertaking, a motion was made on behalf of the respondents in the action of Hart v. Taylor, at Special Term, that the said appellant Hart, file a new undertaking on the appeal, and thereupon an order was made by the court in the following words:

“ Ordered, that the plaintiff and appellant herein file a new undertaking on the appeal herein, and serve a copy of the same as required with respect to the original undertaking herein, within twenty days after the service of a copy- .rf this order, and if the appellant fail so to do within said twenty days, that the judgment in the said action be executed as if no undertaking had been given therein.”

Under this order no undertaking was executed, and after the lapse of twenty days the respondents in the appeal issued an execution in the usual form to the sheriff of the city and county of New York. The execution was afterwards in November, 1878, returned nulla iona. Subsequently, and in April, 1879, the judgment appealed from was affirmed by the General Term of this court, and the respondents in such appeal brought an action upon the undertaking executed as above stated by the respondents in this case. After the bringing of this action, and before thé expiration of the time to answer, the present respondents paid in the action against them upon the undertaking, to settle the same, the sum of $1,268.91.

Upon this state of facts the learned court below ruled, and charged the jury to the effect that the undertaking executed by the present defendants was in force so that the respondents were entitled to bring their suit and recover therein, and that the settlement of the suit in the manner stated was properly made, and that the defendants could set up such payment as, a defense to this action in case the jury should find that the alleged agreement had been made that the property in their hands, or its proceeds, should be held and remain as security to the defendants for their liability upon such undertaking. The jury found upon the evidence that the alleged agreement was made, and rendered a verdict for the defendants, upon which the judgment was entered, from which this appeal is taken.

The only question presented in the case is whether the rulings of the court below were correct in respect to the right of the respondents in the suit in which the undertaking was given, to enforce the same, after the proceedings and order made by the Special Term requiring a new undertaking to be filed, and the subsequent action of the respondents in that case in issuing execution upon their judgment.

There is no doubt in the case that the undertaking given by the defendants was, in all respects, a valid instrument, and that it operated to stay all proceedings pending the appeal, and that the stay continued for the period of more than a year, and until the failure of Hart, the plaintiff, in that judgment, to file a new undertaking, as required by the order. The order did not discharge the defendants from the undertaking. It left that instrument in full force ■and effect, certainly until it should be superseded by a new undertaking, filed in compliance with the order. But no such undertaking was given, and we see no reason to doubt that if no other step had been taken the undertaking of the defendants would have remained iii full force and vigor, notwithstanding their alleged' insolvency. But subsequently, and after the expiration of the twenty days within which the new undertaking was to be filed, pursuant to the order, the respondents in the appeal saw fit to issue an execution upon the judgment against the property of the appellant, and by that process sought to enforce their judgment. This they had a clear right to do after the order of the Special Term; ■and if the sheriff had been successful in finding and levying upon property under that execution, the respondents in the appeal would ■have been entitled to receive the money and apply it upon the judgment, notwithstanding the pendency of the appeal. The effect ■of that course and its results would very clearly have been, as it ■seems to us, that’ the undertaking would no longer have remained an effective instrument. If that would be so, it is difficult to see why the act of issuing the execution and seeking to enforce the judgment without further regard to the stay which had been caused by the filing of the undertaking, would not be an election on the part of the plaintiff to rely no longer upon the undertaking, but to proceed to enforce the judgment as though that instrument had never been made.

The exigency or condition of the undertaking, when read in connection with the statute, was in substance, that the sureties would pay the judgment on its affirmance if the proceedings to enforce it viere stayed pending the appeal and until such affirmance. The respondents, after obtaining the order they did at the Special Term, had an election still to treat the undertaking as an operative instrument, or to disregard it and proceed with the other remedy which the law in that case permitted. But we think they could not have both.

In a very late case in the Court of Appeals where a similar question was involved, the court says: “No reason can be suggested why the respondent should be permitted to disregard the undertaking, and proceed upon the judgment as if none had been given, and yet have all the advantages that the undertaking was intended to secure. The only object and purpose of the undertaking was to stay the execution of the judgment until the appeal had been heard and determined. The respondent cannot have the dual right to enforce the judgment pending the appeal, as if no undertaking had been given, and at the same time treat if as valid security for the payment of the judgment.” (Manning v. Gould, 90 N. Y., 480.)

The facts of that case were not analogous to those of the case now before us. But we do not see why the principle that must govern the cases is not the same. As already intimated, when the time for filing the new undertaking had expired, the respondents in the appeal had an election of remedies. They chose to take the one which treated the judgment as though no undertaking had been given, and in doing so it seems to us they must be regarded as having broken the condition upon which they had the right to claim that the undertaking was enforceable.

The result of this view is that the defendants had a perfect defense to the action brought against them on the undertaking, and as it appears they gave no notice to their principal, but settled the suit by paying the demand, they had no legal right to set up the payment as a defense to this suit.

At the time the order of the Special Term was obtained upon their affidavits, they did not disclose the fact that they had the property now sued for as security in their hands against their liability. If they had done that, a very different result would have followed. Withholding the facts from the respondents in that action would probably have given them the right to pursue a remedy •against the sureties upon allegations of fraudulent concealment.

But that fact does not affect the question presented in this case. We are of opinion that the rulings of the court below in respect to the right to withhold the property under the alleged bailment were •erroneous, and that the judgment should be reversed, and a new trial ordered, with costs to abide the event.

Daniels, J., concurred.

Present — Davis, P. J., and Daniels, J.

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


text:
    JOHN C. PHILLIPS and Others, Respondents, v. CORNELIUS A. WORTENDYKE, Appellant.
    • Corporation — liability of its president for false statements made to procure m'edit for it — an action wiU lie against, him by the seller of the goods before the pnce is due from the corporation.

    Where the president of a corporation, who has the management of its business affairs and knows that it is largely indebted and probably insolvent, makes statements as to its affairs, false*in*fact, for the purpose of obtaining credit on its behalf, he becomes personally liable for the consequences of the fraud he thus commits, and in an action brought by the person injured, to recover the damages he has sustained, an order for the arrest of the defendant may properly be granted:
    Such an action may be brought before the indebtedness of the company for the-goods purchased has matured.
    Appeal from an order of the Special Term denying a motion to-vacate an order of arrest.

      John R. Dos Passos, for the appellant.

      Carlisle Norwood, Jr., for the respondents.
   Davis, P. J.:

The motion to vacate the order of arrest was made in this case-solely upon the affidavits upon which the same was granted. In. such a case the averments of fact contained in the affidavits, and the fair inferences to be drawn therefrom, must be deemed to be conceded as true for the purposes of the motion.

The defendant in this case was president of the Wortendyke Manufacturing Company, a corporation organized under the laws of New Jersey, and carrying on the business of manufacturing silk at Wortendyke, in that State. He managed and controlled the affairs of the corporation. Prior to January, 1883, the plaintiffs had had dealings with the Wortendyke Manufacturing Company; and about that time they requested one Banning, who was the agent of the company in the city of New York, to get a statement of its financial condition, and, soon after, Banning furnished to the plaintiffs such a statement. The statement so furnished showed the assets of the corporation to be, in value, $638,370.63; and its-liabilities, $198,000, leaving a surplus over and above liabilities of $440,370:63. It was signed by C. H. Draper, book-keeper of the company. This statement, if true, not only showed the company to be solvent, but abundantly able to pay all its debts and leave a large surplus. The evidence clearly shows that this statement was made out by and under the direction of the defendant, and that it was delivered to the plaintiffs by him, acting through the agent of the company; and that, relying upon that statement, the plaintiffs, in March and April following, sold and delivered to the Wortendyke Manufacturing Company, on three occasions, at agreed prices, quantities of raw silk, amounting in the aggregate to the sum of $16,983.35, the whole of which remains unpaid. The affidavits also show that the defendant, on the fifteenth of August, at a meeting of the creditors of the company, when shown a copy of the statement above mentioned, stated ‘in substance that the original had been prepared under his instructions for the purpose of the company’s credit; that he examined it before it was issued; that he sent a copy to Banning, and personally delivered a copy to the firm of Dix & Phyfe, note brokers in Wall street, New York, for the purpose of selling the company’s commercial paper; and further said that items of liabilities* of which he had full knowledge, were omitted from such statement; that amongst those omitted were notes of said company amounting to between twenty and thirty thousand dollars, held by banks in New Jersey; that he did not think it worth while to include such notes, as the banks had been renewing them for more than ten years, and as the banks were willing to continue renewals the notes would not, therefore, trouble him ; that there had been omitted liabilities amounting to $68,000 of advances made against merchandise and silk, which he had set out among the assets; and that other liabilities to a large amount were also omitted from such statement. The affidavits also showed that the company was largely indebted in an amount subsequently secured by executing a mortgage of its real estate in the sum of $150,000; and other facts tending to show that at the time the representations were made the company was, in fact, insolvent and its liabilities exceeded the actual value of its assets, and that the defendant knew those facts.

The court below held that in the absence of explanation on the part of the defendant, the affidavits were sufficient to uphold the warrant. We are of the same opinion. It is true that the defendant was the president of a corporation and was acting on its behalf in obtaining credit, and that the silk was purchased for the use and benefit of the corporation. But there can be no doubt that where the president of a corporation, having knowledge and the management of its business affairs and knowing that it is largely indebted and probably insolvent, makes statements of its affairs false in fact for the purpose of obtaining credit on its behalf, he becomes personYally liable for the consequences of the fraud he thus commits.

In this case the statement issued was grossly untrue and deceptive. It must have been known to be so to the defendant. It was intended to secure credit for the corporation and undoubtedly had that effect, and since the defendant furnishes no explanation or answer to the allegations it contained establishing this state of things, he must take the consequences of his wrongful act.

But it is insisted that the affidavits show that the indebtedness of the company, for the goods purchased, has not matured. That, we think, is not a material circumstance. It is well settled that whenever such a fraud is discovered by a creditor, he may at once repudiate the sales and sue for the value of the property fraudulently obtained, notwithstanding the period of credit has nob expired; and if the creditor has been induced by the fraudulent representations of a third party, made on behalf of a corporation or other principal to make such a sale, the same rule of law authorizes an immediate action against the wrong-doer for the injury sustained. No relation of principal and surety grows out of such a transaction, which compels the creditor first to resort to the principal debtor, and' to determine that a recovery cannot be had of him; because the sole basis of the cause of action in such a case is the wrongful act of the agent, which is a personal tort to it, for which the agent may be pursued alone.

We see no reason for interfering with the order of the court below, and the same is therefore affirmed, with ten dollars costs and disbursements.

Davis, P. J., and Brady, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Davis, R. J.:

text:
    HENRY BRUNS, Appellant, v. THE STEWART MANUFACTURING COMPANY, Respondent.

      Heceiver in supplementary proceedings — power of the court to remove him — he must t have notice of the charges against him and an opportunity to be heard.

    A motion to vacate an order of the Supreme Court appointing a receiver of a judgment debtor was 'made by one Marrin, who claimed to have been previously appointed receiver by the Court.of Common Picas. This motion was denied, with leave to the defendant, or any party in interest, to move to remove said receiver and appoint a new one, if objection was made to him, within twenty-four hours after the service of the order. The order then proceeded as follows: “And objection being now made it is ordered that James J. Nealis, Esq., fee and he hereby is substituted as receiver of the defendant in the place ®f Adolph E. Dick ” (the former receiver).

      Held, that the motion to vacate the (Order having been denied the court could not, upon objections made by ot'her persons, remove the receiver for different and other reasons without first giving to the receiver notice of the charges against him, and an opportunity to be heard.
    Appeal from an order of the Special Term made May 7, 1883, removing the appellant, Adolph E. Dick, as receiver, in the above entitled action, and substituting another receiver.

      W. L. Snyder, for the appellant.

      E. H. Hobbs, for the respondent.
   Davis, R. J.:

At a Special Term of this court held on the 28th of April, 1883, on a motion made on behalf of the plaintiff in the above entitled action, as judgment creditor of the defendant, for the appointment of a receiver of the property of the defendant, and after hearing counsel for the plaintiff, one of the trustees of the defendant appearing and not opposing, Adolph E. Dick, the. present appellant, was appointed receiver of the defendant, the Stewart Manufacturing Company, in the usual form and with the usual directions. The receiver thereafter qualified by filing his bond duly approved, and entered upon the duties of his office. On the 7th of May, 1883, a motion was made upon an order to show cause before the same Special Term on short notice by one Joseph J. Marrin, to vacate ^he order appointing Dick as receiver. This motion was based wholly on the allegations of Marrin, the moving party, that he had been previously appointed receiver of the corporation by the Court of Common Pleas, and had entered upon the duties of his receivership, and was still discharging the same.

Upon the hearing of that motion, the court entered the following order: It is ordered, that the said motion be denied and the stay therein vacated, with leave to the defendant, or any party in interest, to move to remove said receiver and appoint a new one, if objection is made to the present receiver within twenty-four hours after the service of this order on Edward H. Hobbs, Esq., and objection being now made, it is ordered that James J. Nealis, Esq., be and he hereby is substituted as receiver of the defendant in the place and stead of Adolph E. Dick.”

The motion made by Marrin to vacate the order entered in the action appointing Dick receiver, was based altogether upon allegations that he had himself been previously appointed receiver by the Court of Common Pleas, and had entered upon the duties of the office, and was then discharging the same. When the court denied that motion, as we must assume upon sufficient • facts appearing before it, the order of denial disposed of the motion. The order recites the appearance of Marrin in his own behalf, and Mr. Dupignac, on behalf of the plaintiff, but no appearance on the part of the receiver. What subsequently took place, resulting in the removal of Dick as receiver, and the appointment of another person, was an entire departure from the puipose of the motion. What objection was made to the receiver, and by whom, does not appear. It certainly was an extraordinary departure from established rules of practice that, upon some objection made upon the spot by some party not named, with no notice whatever to the receiver, and no opportunity to meet and explain the objection, whatever it may have been, and in a motion having no such object in view, a receiver duly appointed by the court, and who had qualified and entered upon his duties, should be thus unceremoniously removed and another appointed in his place.

The rule that should operate in such cases is laid down by High, on Receivers (§ 821), in these words : “And since the appointment itself is a matter resting largely in the sound discretion of the court to which the application is addressed, if the court at.,a subsequent stage of the case becomes satisfied that the order of appointment is improperly made, it has undoubtedly power to vacate such order, and thus in effect to remove the receiver. But before the court can entertain a motion for the removal of a receiver, due notice must be given of the motion in writing, which notice should set forth specifically the grounds upon which the removal is sought.” And in the case of Campbell v. Spratt, where it appeared from the papers that sufficient ground existed for the removal upon proper application, this court, Mr. Justice Brady writing the opinion, held that the removal of the receiver was not attained by the due and orderly method provided for that purpose ; that he could not properly be removed and another appointed in his place, without proper notice of the application for removal and opportunity to be heard in opposition; and that a removal without such notice was unprecedented. The order appealed from was therefore reversed, all the judges concurring. The only report of the case may be found in 5 N. T. Weekly Digest, 25.

In this case the motion was made on behalf of Marrin only to vacate the order appointing the appellant receiver on the sole ground that a receiver was already existing, appointed by a competent tribunal. But that motion was denied, which disposed of every question then before the court. Before taking the action that was after-wards taken, of removing receiver Dick and appointing another upon grounds entirely foreign to those on which the motion was based, nothing seems to us clearer than that some notice should have been given to the receiver, and some opportunity for him to be, heard in respect to the objections or allegations against him.

We see no grounds upon which the order appealed from can be upheld, and it must be reversed with ten dollars costs and disbursements.

Daniels, J, concurred.

Present — Davis, P. J., Brady and Daniels, JJ.

Order reversed, with ten dollars costs- and disbursements.


author: Per Curiam :

text:
    In the Matter of DAVID CLARK to Vacate Assessment.

      Assessment — application to vacate it — no objection can be considered, unless it is stated in the petition.

    Upon an application to vacate an assessment for paving a street in tlie city of New York, the court cannot consider an objection taken thereto, unless it is-stated in the petition.
    Appeal from an order made at a Special Term denying a petition to vacate an assessment for the paving of South Fifth avenue, in the city of New York.

      James A. Deermg, for the appellant.

      A. L. Cole, for the respondent.
   Per Curiam :

The work in this case was done under the authority of chapter 872, Laws of 1872, which expressly authorized it.to be done by the commissioner of public works by day’s work, by contract, or in such manner as the said commissioner of public works might deem expedient. The only point argued by the appellant is that the provision of the act under which the work was done is unconstitutional, because it embraces one or more subjects not expressed in its title. This objection is not stated in the petition, and therefore is not available to the petitioner. (See Rich's Case, 12 Abb., 118 ; Miller's Case, Id., 121; Horne’s Case, Id., 121; In re. Eager, 16 N. Y., 109.)

In this last case, Mr. Justice Rapallo, writing the opinion of the court, says: “ The petitioners have taken the point that the assessment was not coniirmed by the common council, and that the act of 1861, which purports to dispense with such confirmation, is-unconstitutional by reason of not being properly entitled.' We cannot inquire into this objection for the reason that it is not stated in the petition, and consequently was not passed upon by the court below.”

Under that authority we are relieved from the necessity of considering the question of constitutionality; and as no other point is made, we are of opinion that the order of the court below should be affirmed, with ten dollars costs and disbursements.

Present — Davis, P. J., Beady and DaNiels, JJ.

Order affirmed, with ten dollars costs and disbursements.