author: Bradley, J.

text:
    Saly J. Mayer et al., App’lts, v. Garret L. Hardy, Resp't.

      (Court of Appeals, Second Division,

      Filed June 2, 1891.)

    1. Patents—Jurisdiction of state courts.
    A patentee of a corset clasp entered into an agreement with plaintiffs’ granting them a license to make and sell it, upon a royalty, she agreeing not to • license more than one other person without their consent. She issued the second license and then assigned the patent. In an action to restrain defendant from making and selling the patented article, Held, that as the validity of the patent and the license were admitted, there was practically no conflict of claim other than arose upon the construction of the license to plaintiff, and the case was properly within the jurisdietion of the state court.
    2. Same.
    Defendant in manufacturing and selling the patented article was not a wrongdoer and trespasser against the rights acquired by the plaintiffs by the license granted to them.

      Appeal from judgment entered upon order of the general term of the supreme court, in the first judicial department, reversing the interlocutory and final judgments of the special term, and dismissing the complaint.
    In January, 1879, Gurdon 0. Judson entered into an agreement under seal with three of the plaintiffs and the assignor of one of them, whereby she, as the patentee of an improvement in corset clasps, granted unto them a license to make, use and sell them for the term of the patent, and for any re-issue thereof, for a royalty fee of fifty cents per gross, they to render an account monthly, and to pay the royalty within ten days thereafter, and they agreed to make all due and diligent effort to sell and increase the sale of corsets and corset clasps containing said patent invention; to assert the validity of the letters patent at all times, and otherwise to aid Mrs. Judson by all the means in their power to prevent infringement thereof; and she agreed with all practicable speed to prosecute any infringers of the patent, and protect the privileges so granted to them, and not to license more than one other person, firm or corporation without their consent.
    About the same time the second license was granted to a company as provided by the terms of the license first mentioned. And the plaintiffs proceeded to manufacture and sell the patented article, and, so far as appears, performed the contract on their part.
    In October, 1879, Mrs. Judson assigned to the defendant all her right, title and interest in such invention secured to her by letters patent, including all royalties accrued and to accrue from the invention. And the defendant proceeded to manufacture and sell the patented article. This action was afterwards brought to restrain him from further manufacturing and selling it, and to recover damages sustained by reason of his having done so. And amongst other matters the plaintiffs alleged that the defendant, advised of the license to and contract with the plaintiff, has manufactured and sold the patented article in violation of such contract. The defendant by his answer admitted the granting of the letters patent, the license to the plaintiffs, and alleged that the cause of action involved his right to manufacture under, “ and the infringement of said patent, over which the United States courts have exclusive jurisdiction, and that this (the state) court has not jurisdiction over the subject matter thereof.”
    The trial court determined that the defendant took by the assignment to him no right to manufacture and sell the patented corset clasp; and that in manufacturing and selling it “ he was a wrong doer and trespasser upon the rights of the plaintiffs under their said contract ” with Mrs. Judson, and directed judgment for injunctive relief and for damages and a reference to ascertain them. An interlocutory judgment was entered accordingly, followed by final judgment on the coming in of the report of the referee, whereby the plaintiffs recovered $7,696.18 damages.

      Reginald Hart, for applts; Jacob S. Van Wyck, for resp’t.

       See 21 N. Y. State Rep., 61.

   Bradley, J.

The rights of the plaintiffs rested wholly in the license granted to them by Mrs. Judson, the patentee. And so far as their remedy was dependent solely upon the enforcement of the contract it was within the jurisdiction of the state court. Hyatt v. Ingalls, 124 N. Y, 93; 35 N.Y. State Rep., 114. The view urged by the plaintiffs, and essentially so to support the action, is that it involved the determination of no question within the patent laws of the United States, but that in its purpose and nature was merely an action to restrain the violation of a covenant and to recover damages resulting from it If this view is sustained in such sense that the action is founded solely upon contract or breach of covenant there was no want of jurisdiction in the state court to determine it upon the merits. But, although the defendant must be deemed to have taken the assignment of the interest of the patentee in the invention subject to the rights of the plaintiffs taken by the instrument granting the license to them, he was not a party to the covenants contained in it. Nor is the action to compel the defendant to observe or perform, any covenant made by him, but its purpose is the assertion of the alleged claim of the plaintiffs dependent upon the granting covenants of another, subordinate to which are the rights taken by the defendant.

The action is, therefore, founded upon the disregard and violation by the defendant of the alleged claim of the plaintiffs to the use of the patent, and not upon any contract obligation which he has made or by agreement undertaken to observe. This evidently was the view of the trial court, as appears by the conclusion that the defendant in manufacturing and selling the patented article “ was a wrong doer and trespasser upon the rights of the plaintiffs.” And while the defendant by the assignment to him took such right only as his assignor had, and in practical effect became subject to the responsibilities attending the title, the nature of the remedy against them was or might differ in so far that as against her it might rest upon her contract, while against the defendant it was necessarily founded upon a violation or invasion of the alleged rights of the plaintiffs subject to which the defendant'had taken the assignment Both cases would alike depend .upon the interpretation of the contract, and the results would be governed by the same principle of measurement; but while the former might rest upon the contract and its breach, the latter 'was founded upon the rights of the plaintiffs derived from the contract and the alleged violation of them by the defendant. This distinction is entitled to no consideration except in its bearing upon the question of jurisdiction of the state court. And in that respect it is not free from difficulty. If such violation of the rights and privileges of the plaintiffs derived from their license was an infringement by the defendant within the meaning of that term as applied to patents, the remedy was exclusively within the jurisdiction of the federal courts. And in Littlefield v. Perry, 21 Wall., 205, it was held that a patentee may be an infringer of rights under a patent which he has assigned; and it was there said that his licensee could maintain an action for such cause against him. No reason appears why the rule so applicable to a patentee may not, for like cause, be available against his assignee.

The cases cited by the court at general term in support of the position that the state court had not jurisdiction, were Continental Store Service Co. v. Clark, 100 N. Y., 365, and Hat Sweat Mfg. Co. v. Reinoehl, 102 id., 167; 1 N. Y. State Rep., 340. In the former case, as here, there was no controversy about the validity of the patent, the claims of the parties were founded on alleged assignments, and each party insisted upon the superior right Theirs were conflicting claims and he, without the support of title as against the other, was an infringer. In the other case cited, the validity of the patent and the right of the plaintiff to the exclusive use of it, were the subject of controversy. And it was held that those cases were within the exclusive jurisdiction of the Federal court The cases generally, where it has been held that the state court had jurisdiction upon the subject, have been those founded upon contract to which the defendants were parties. Such were Hartell v. Tilghman, 99 U. S., 547, and Dale Tile Mfg. Co. v. Hyatt, 125 id., 46. But that was not so in Hill v. Whitcomb, 1 Holmes, 317. And inasmuch as the validity of the patent and the license in the present case were admitted, there was practically no conflict of claim other than such as arose upon the construe tion of the instrument of license to the plaintiffs; and, for that reason, we think, it involved the consideration of no question arising under any act of congress in relation to patents. And in that view the case was properly in the state court for determination. The plaintiffs insist that they took by the license, except as against one other licensee, the exclusive right to the use of the patent. Although such may have been the understanding of the plaintiffs, the patentee was not, by the terms of the agreement, denied the right to manufacture and sell the patented article, nor was she by any express provision of it required to retain the title in herself. Her covenant was that she would grant a license to one other person, firm or corporation only. She held the title to the patent, and did not grant the exclusive right to its use to the licensees, but made the covenant, before mentioned, with a view to the protection, to that extent and in that manner, of the privileges granted to them. The assignment of the patent apparently carried with it to the assignee all the rights which remained in her in respect to it. It is said that whatever rights to its use remained in the patentee after the licenses were granted were personal to her. If that were so and the assignment operated, within the meaning of the contract, as a license to her assignee, it would follow that she committed a breach of the covenant for which she would be liable to the plaintiffs. But it is not seen how that had the effect to charge the defendant, because as against him the rights of the plaintiffs rest upon the grant to them and not upon the covenant made by the patentee for their protection in the use of the rights granted as against other licensees. Upon the construction of the grant of the license to the plaintiffs we fail to see any support for the conclusion of the trial court that the defendant in manufacturing and selling the patented article was a wrong doer and trespasser against the rights of the plaintiffs taken by the license granted to them.

The judgment entered upon the order of the general term so far as it dismissed the complaint should he reversed, in other respects affirmed, and a new trial granted, costs to abide the event.

All concur, except Brown, J., not sitting.


source: Caselaw Access Project

license: Public Domain

text:
    The Phœnix Iron Co., Resp’t, v. The Vessels “Hopatcong” et al., App’lts.

      (Court of Appeals, Second Division,

      Filed June 2, 1891.)

    1. Lien (maritime)—When not lost by receiving notes.
    In July, 1884, W. S. & Co., shipbuilders, contracted with the H. L. & I. Co. to construct two iron ferry boats. Part of the materials were obtained from plaintiffs, terms cash, but were not paid for. In November, 1884, W. S. & Co. sent the plaintiffs their notes at three and four months, and in December made a general assignment. W. 8. & Co. were insolvent at the time of giving the notes, and knew it, and had previously transferred the unfinished boats and materials to the H. L. & I. Co. Held, that the notes were sent with fraudulent intent and relieved plaintiffs from the extension of credit which they purported to create.
    2. Same—Unfinished vessels.
    Hulls on the stocks in the course of completion are unfinished vessels, and within the contemplation of the statute subject to lien of debt for work done and materials furnished in building them.
    3. Same—Place of contract.
    Plaintiff was a corporation doing business in Philadelphia and the goods were there shipped to the builders and delivered to them at Newburgh in this state. Held, that the debt, within the meaning of the statute, was not contracted until the iron was delivered and then was contracted at the place of delivery.
    4. Same—Ferry boats.
    Ferry boats are within the terms vessels as used in the statute.
    Appeal by the Hoboken Land & Improvement Company from' an order of the general term of the supreme court, in the second judicial department, reversing upon the facts and upon the law judgment entered on the decision of the special term.

      Leon Abbett, for app’lts; E. A. Brewster, for resp’t.

       Affirming 35 N. Y. State Rep., 703.

   Bradley, J.

This controversy between the respondent and the Hoboken Land & Improvement Company is in a proceeding instituted and conducted pursuant to chap. 482 of Laws 1862, entitled “An act to provide for the collection of demands against ships and vessels,” amended by Laws 1863, chap. 422.

On July 23, 1884, Ward, Stanton & Co., ship builders at New-burgh, by contract with the Hoboken, etc., Company, undertook the construction for the latter of two iron ferry boats, at the price of $150,000, and proceeded to construct them. Part of the materials for the work was ordered from the Phoenix Iron Company and it delivered to them August 5th, 7th, 18th, 19th, September 11th and October 17, 1884, quantities of angle iron at prices aggregating $4,958.72. The terms of sale were cash, which imports no credit, No payments were made for the iron. But on November 21, 1884, Ward, Stanton & Co. sent the Phoenix Company, by mail, their two notes, one at three and the other at four months, for the amount of the claim, and December 24,1884, they made a general assignment for the benefit of their creditors. On application of the Phoenix Company to a justice of the supreme court a warrant to enforce its lien for such debt pursuant to the provisions of the statute was issued February 5, 1885, to the sheriff against such vessels, their tackle, apparel and furniture, and on the same day the sheriff attached and seized the two iron ferry boats, etc., which were then incomplete. Afterwards an order was made by the same justice directing the sheriff to sell, and they were sold March 28, 1885, pursuant to that order, and two others, on the application respectively of the Chester Rolling Mills and Whitehall, also lien creditors of Ward, Stanton & Co. And on the application of the Phoenix Company a second warrant was issued against the proceeds of the sale, April 16, 1885.

The Hoboken Co., as owner of the Hopatcong and Musconetcong, filed answers to those claims and proceedings of the Phoenix Co., and thus were presented the issues for trial The special term determined that the warrant of February 5th was ineffectual because the right to it was suspended by the then unmatured notes given and held for the debt, and the proceedings founded upon it were dismissed; and that upon the proceeding instituted April 16th the company was entitled to receive from the proceeds of the sale of the vessels satisfaction only of the last bill of iron delivered in October, 1884, amounting to $369.74, as the lien of the debt arising from the prior sales and deliveries had terminated when that proceeding was commenced. The statute upon that subject provides that the debt shall cease to be a lien at the expiration of six months after it was contracted unless, etc. Id., § 2. The view of the general term in support of the last proceeding was that all the iron was delivered in performance of a single contract, also that the first proceeding was sustainable upon the ground that the notes were sent to the Phoenix Co. with the intent on the part of the makers not to pay the debt. The first proposition is not sustained by the evidence. The Phoenix Co. did not undertake to deliver any specific amount of iron or the entire quantity requisite for any particular purpose. It agreed to furnish angle iron at specified prices, which was done from time to time upon the orders of Ward, Stanton & Co. The second is the main proposition and is one of fact. The contention of the appellant’s counsel that the facts were not before the general term is not supported. The paragraph following the evidence in the case that “ the foregoing is all the testimony and proceedings upon the trial,” is presumptively sufficient to meet the question so raised. Although a certain inventory and schedule introduced in evidence do not appear in the record, it is evident from what does appear that they could add nothing essentially bearing upon any contested fact.

It is also urged that the statute does not provide for a lien upon unfinished vessels; and that the debt in question was not contracted in this state and therefore was not alien upon them. These boats were partially constructed at the time they were attached, and the hulls were then in no condition to float in the water, and would not if launched The statute provides that- “ whenever a debt amounting, etcl, as to any * * * vessel shall be contracted by the master, owner, charterer, builder or consignee of any ship or vessel * * * within this state * * *" on account of work done or materials or other articles furnished in this state towards the building, repairing, fitting, furnishing or equipping such ship or vessel * * * such debt shall be a lien upon such vessel, her tackle, apparel and furniture, and shall be preferred to all other liens thereon except mariners’ wages.” The iron was furnished by the respondent as material towards the building of these vessels and all of it, except a small portion, had been put into the work. The hulls were on the stocks in' the course of completion. They were unfinished vessels, and within the contemplation of the statute were subject to lien of debt for. work done and materials furnished towards building them. Phillips v. Wright, 5 Sandf., 342. And the debt was contracted by the owner within this state on account of materials furnished in this state. The Phoenix Iron Company was a corporation of the state of Pennsylvania doing business at the city of Philadelphia, and the goods were there shipped to the builders and delivered to them at Newburgh in this state. The debt, within the meaning of the statute, was not contracted until the iron was delivered and then was contracted at the place of delivery. Veltman v. Thompson, 3 N. Y, 438; Crawford v. Collins, 45 Barb., 269; Mullin v. Hides, 49 id., 250.

The materials were furnished for and used in the building of both vessels, which were being constructed at the same time and place, and no reason appears why they are not subject to the lien and to a single proceeding to enforce it against them.

The ferry boats are within the term vessels as used in the statute referred to. The construction given in Birkbeck v. Ferry Boats, 17 Johns., 54, to the statute in question in that case, has no necessary application to that under which the present proceedings were had King v. Greenway, 71 N. Y., 413.

The remaining question is one of fact, and has relation to the effect to be given to the notes sent by Ward, Stanton & Co. to the Phoenix Co. The acceptance of the notes apparently operated as an extension of the credit of the makers until maturity. And if such was the effect, the right of the creditor to enforce the lien it béfore had was not only suspended during that time, but when the suspension terminated the lien as to most of its debt had expired by lapse of time. Happy v. Mosher, 48 N. Y., 313; Mott v. Lansing, 57 id., 112. But it is contended on the part of the respondent that the notes did not have the effect , to suspend the right of the creditor to take proceedings to enforce the lien, because they were made and sent to it with the fraudulent intent on the part of the makers not to pay the debt. The general term disagreed with the trial court on that question, and reversed the judgment upon the facts as well as on the law; and this court must review the determination there made upon the questions of fact Code Civ. Pro., § 1338. This section, as well as §272 of the -old Code, which was in this respect substantially the same, has received some judicial consideration, and the rules applicable to the review in such cases have been somewhat defined. Godfrey v. Moser, 66 N. Y., 250; Moran v. McLarty, 75 id., 25; Baird v. Mayor, etc., 96 id., 567. And it is there held that the rule that where there is conflicting evidence, or any evidence to sustain the finding of the trial court, it is error for the general term to reverse, has no application to such a case. “ While proper allowance should be made in reviewing the facts, where testimony is conflicting, for the judgment of the trial court, who saw and heard the witnesses testify while upon the stand, this is not entirely controlling, and the general term must assume the responsibility of examining the whole case and determine from the evidence where the truth lies.” And in the Baird case, the court added : “ To justify a reversal it must appear that such findings were against the weight of evidence, or that the proofs so clearly preponderated in favor of a contrary result that it can be said with a reasonable degree of certainty that the trial court erred in its conclusion.” The doctrine of these cases was followed in Aldridge v. Aldridge, 120 27. Y., 617; 31 N. Y. State Rep., 948, although the absence of a certificate that the record contained all the evidence rendered it unnecessary to do more than to see that there was some evidence to sustain the findings of the trial court.

In Nostrand v. Knight, 123 N. Y, 614; 34 N. Y. State Rep., 96, an expression in the opinion of the court delivered by Chief Judge Ruger seems to go further in support of the determination of the general term in reversing the judgment of the trial court than does the view on that subject expressed by the court in any previous case to which our attention has been called. It is that “ the general term had jurisdiction to review the conclusion of the trial court, both upon the facts and the law, and we cannot reverse its determination, unless upon examination we conclude that there was such a preponderance of evidence in favor of the conclusions reached by the trial court as would have constituted error of law for it to have found otherwise than it did.” But in the examination of the evidence, the court proceeded to the conclusion that there was a preponderance of 'evidence against the findings of the trial court, and the reversal by the general term was sustained.

In the present case there was not much controversy about the facts other than the single one of the intent of the makers of the notes in sending them to the creditor» Ward, Stanton & Co. were then insolvent, and knew they were so. The Phoenix Co. did not know it, but supposed the firm to be solvent. These facts alone and the failure of the debtors to inform their creditor of their condition of insolvency, without the aid of intent on their part not to pay, did not constitute fraud. Nichols v. Pinner, 18 N. Y, 295 ; Wright v. Brown, 67 id., 1; Morris v. Talcott, 96 id., 100. The sales were for cash and not on credit, and when each of the bills of iron was delivered the Phoenix Co. was entitled to payment for it; and at the time the notes were made the debt arising from the sales was secured by lien upon the vessels. There was no previous understanding or agreement for making and taking of notes, but the debtors without consultation with their creditor voluntarily made and by mail sent the notes to the Phoenix Co., enclosed in a letter stating merely, “ Please find enclosed two notes for acct.,” then followed a statement of the notes as made for the amount of bill rendered November 1, and interest added. The company received the notes, placed them in bank for collection and retained the title to them. They were surrendered to the court for cancellation at the trial.

The firm of Ward, Stanton & Co., prior to November 15,1884, had received of the Hoboken Company, upon the contract, $70,000. Up to that time the firm owned the unfinished vessels, and on that day a new contract was entered into between those parties whereby the firm sold, transferred and delivered to the Hoboken Company those vessels and all material and personal property of every kind forming any part thereof, with all the wood work, iron work, materials and personal property of every description in the ship yard. And the firm agreed to do the additional work and furnish such material as should be necessary to complete the ferry boats as and at the time provided by the contract of July ; and that when so completed neither of them, nor any material for them purchased by the firm, should be liable or subject to or affected by the debts of the latter.

The Hoboken Company paid to the firm $10,000 on the day this contract was made, $10,000 December 2d and $10,000 December 17th, making together payments amounting to $100,000, leaving unpaid of the contract price $50,000. There was evidence tending to prove and the trial court found that the $80,000 unpaid at the time the contract of November 15th was made was “sufficient to enable the firm to complete the boats and pay for all material and labor therefor; ” and that at the time the notes were sent the firm owned tools which had cost it $100,000, on which there was a mortgage of $25,000; and that it had other stock in the yard not covered by the mortgage or included in the sale of November 15th, which had cost it about $10,000. The then value of the property not included in the sale does not necessarily appear, but there was evidence that the mortgaged property was afterwards sold upon the mortgage for about $19,000.

Prior to Hovember 21st, and in September and October, several notes of the firm had been protested. At the time of mailing the notes to the Phcenix Company the indebtedness of the firm was at least $115,000. notwithstanding this situation one member of the firm testified as follows:

“ Q. At the time of giving the notes to tire Phoenix Iron Company was your firm solvent and able to pay its indebtedness, or whatever was outstanding against them? A. Yes, we considered that we were.”
“ Q. As matter of fact were you? A. We considered ourselves so.”

And he afterwards testified that the liabilities of the firm at the time of making the assignment were from $150,000 to $175,000 ; that the firm did not, nor, so far as he knew, did any of its members, own real estate; and that most of its property was covered by the mortgage before mentioned. The Phoenix Company had no knowledge or information of the insolvency of the firm or of the transfer made by it to the Hoboken Company until after the general assignment was made. Upon this state of facts the question arises as to the motive by which the firm may be deemed to have been actuated in sending the notes to the Iron Company, The firm knew that it was then in no condition to pay its debts, and it is difficult to see any solid foundation for reasonable expectation that it would be able to do so, especially without an unusual indulgence of creditors. So far as appears, Ward, Stanton & Co. were not in a business from which they could expect to realize such large profits as to reasonably justify hope of relief from their embarrassed financial condition. Why did they send the notes ? They did it without any previous understanding with or consent of the company, and its consent to extend the credit depended upon the acceptance of the notes. The company then had a lien upon the ferry boats. The notes, if rendered effectual, would operate to suspend the lien and discharge it as to most of the debt. The firm had by the contract with and transfer to the Hoboken Company undertaken to complete the boats free from all liens. It is not unreasonable to suppose that these boat and ship builders, who had been in the business in this state for twelve years, were advised of the statute relating to liens on ships and vessels for labor and materials. The most of their property was mortgaged. The money due on their contract would no more than complete its performance, and of that which they had received they paid none to the Phoenix Company. Under such circumstances the inference quite strongly arises that they did not expect when they gave the notes to pay them at maturity, and if they did not, they by the notes made a promise which they did not expect, and consequently did not intend to perform.

The fraud sufficient to relieve the respondent from the extension of credit which the notes purported to create is not such as is essential to constitute a criminal charge. Nichols v. Michael, 23 N. Y., 264. And there is no pretense of the latter imputation in this case. In Wright v. Brown, 67 N. Y., 6, the court say: “ Upon the case made by the plaintiffs the inference is legitimate that the defendant must have known when he purchased the barley that he could not continue in business and that he could not pay for it, and hence that he is chargeable with an intent not to pay for it.” In cases like the present, purposes are not usually directly proved, but are to be inferred from the circumstances which furnish the motive for the act. The credit which the firm sought by the notes to obtain was not nor was any credit provided for in the contract of purchase. The debt was due. There was no reason for the acceptance of the notes by the Iron Company and the extension thereby of the credit, except for the accommodation of the makers, and upon the faith of their solvency and ability as well as purpose to pay.

The inference was by the evidence permitted that it was the purpose of the debtor firm to substantially defeat the lien which the company had on the boats by suspension of the right to enforce it until to that extent it had expired. And in view of the then actual financial condition of the firm, known to the latter, and of the transfer then recently made by it, followed as it was by the general assignment, the conclusion of the general term was justified that the firm was hopelessly insolvent when it sent the notes to the Phoenix Co. and then had knowledge that it was in that condition and could not and did not intend to pay the debt. And the determination that the inference of such facts was supported by a preponderance of evidence was also warranted.

The order should be affirmed and judgment absolute directed for the respondent.

All concur, except Brown, J., not sitting.


author: Follett, Ch. J.

text:
    In the Matter of the Probate of a Paper Alleged to be the Last Will of Cecilia L. Booth, deceased. Geraldine J. Timoney, Proponent and App’lt, v. Joseph A. Booth, Contestant and Resp’t.

      (Court of Appeals, Second Division,

      Filed June 2, 1891.)

      1. Will—Holograph—Execution op—Acknowledging signature.
    Bach, of the four statutory requisites for the execution of a will must be complied with. The acknowledging of the "making of the signature" will not supply the want of the signing by the testator.
    2. Same.
    Testator wrote in her own hand a paper signed by two witnesses, beginning: “If I, Cecilia L. Booth, should die * * * I leave,” etc., hut did not sign at the end, Held, that her simple declaration to one of the subscribing witnesses? “ This is my will, take it and sign it,” standing alone, is insufficient to sustain a verdict that her name written by her in the first line of the document was there written with intent that it should have effect as her signature in the final execution of her will.
    Appeal from a judgment of the general term of the first department, refusing to probate a paper alleged to be the last will of Cecilia L. Booth.
    On the 16th of June, 1884, Cecilia L. Booth, a resident of the state of New Jersey and the wife of the contestant, wrote in her own hand a paper which was signed by two witnesses, of which the following is a copy:
    “ If I, Cecilia L. Booth, should die within the year 1884, I leave to my sister, Geraldiiie Josephine Timoney, all money due me from my late father’s deceased will, also my wearing apparel and furniture, and I also leave to my little nephew, Albert Philip Timoney, all money deposited in the Emigrant Savings Bank in my maiden name Cecilia L. Hatfield.
    “ Witnessed by
    “ Amelia Kurrtts,
    “ Mamie Clifford.

      “June 16, 1884.”

      August 10, 1884, Mrs. Booth, then a citizen of the state of New Jersey, died in that state, leaving personal property in the city and county of New York.
    Geraldine Josephine Timoney presented the instrument to the surrogate’s court of the city and county of New York as the last will and testament of Cecilia L. Booth, and asked to have it admitted to probate as such, which was contested by the husband of Mrs. Booth. The surrogate held that the instrument was well executed under the laws of New Jersey, and admitted it to probate. 3 Dem., 416. On an appeal to the general term the decision of the surrogate was reversed and a new trial directed by a jury. 38 Hun, 644.
    The following questions were submitted to the jury, all of which were found in the affirmative, except the eighth, which was answered in the negative:
    “ 1st. Was the paper, propounded as the last will and testament of Cecilia L. Booth, deceased, written by her ?
    “ 2d. If such paper was written by said Cecilia L. Booth, where was it written ?
    “ 3rd. Was the name ‘Cecilia L. Booth,’ appearing on the first line of said paper, written or made by Cecilia L. Booth, the deceased wife of the contestant ?
    “ 4th. If said name ‘ Cecilia L. Booth,’ was written by Cecilia L. Booth, deceased, was it written by her in the presence of two witnesses who were present at the same time, and who subscribed their names to said paper as witnesses in the presence of said Cecilia L. Booth ?
    “ 5th. If the name ‘ Cecilia L. Booth ’ was written by Cecilia L. Booth, deceased, did she acknowledge the writing or making thereof in the presence of two witnesses, who were present at the same time, and who subscribed their names to said paper as witnesses in the presence of said Cecilia L. Booth ?
    “ 6th. H said paper and said name of ‘ Cecilia L. Booth ’ was written or made by said Cecilia L. Booth, deceased, did she declare the same to be her last will in the presence of two witnesses, present at the same time, who subscribed their names thereto, as witnesses, in the presence of said Cecilia L. Booth ?
    “7th. Was said Cecilia L. Booth, at the time of making or executing said paper, mentally competent to make or execute a last will and testament ?
    “8th. If Cecilia L. Booth, at the time of making or executing said paper, was mentally competent to execute a last will and testament, was such paper procured under undue or improper influence or fraud ?”
    The proponent applied for a judgment at the general term, which was denied, and the contestant for a new trial, which was granted, on the ground that the answer to the fifth question was not sustained by the evidence. 13 N. Y. State Rep., 344. Upon the second trial by jury, all of the issues were again found in favor of the proponent, but the general term again denied proponent’s motion for judgment, and denied the contestant’s motion for a new trial on all of the questions; but held that the answer of the jury to the fifth question was unsupported by the evidence, and directed a new trial of that question only. Upon the third trial by jury they were directed to answer the fifth question in the negative. Upon appeal to the general term the direction was sustained, and it was held that the will was not entitled to be probated; from which judgment an appeal was taken to the court of appeals.

      J. Stewart Ross, for app’lt; B. F Watson, for resp’t.

       Affirming 32 N. Y. State Rep., 1131.

   Follett, Ch. J.

At common law, if a person wrote his name in the body of a will or contract with intent to execute it in that manner, the signature so written was as valid as though subscribed at the end of the instrument. Merritt v. Clason, 12 Johns., 102; S. C., sub. nom. Clason v. Bailey, 14 id., 484; People v. Murray, 5 Hill, 468; Caton v. Caton, L. R, 2 H. L., 127 ; 2 Kent’s Com., 511; 1 Dart’s V. & P., 6th ed., 270; 1 Jar. Wills, Big’s ed., 79.

We shall assume, without deciding, that under the laws of New Jersey a will may be legally executed if the name of the testator is written by him in the body of the instrument with intent to so execute it. The statute of that state, which prescribes the mode in which wills shall be executed, provides: “All wills and testaments * * * shall be in writing and shall be signed by the testator, which signature shall be made by the testator, or the making thereof acknowledged by him, and such writing declared to be his last will in the presence of two witnesses present at the same time, who shall subscribe their names thereto as witnesses in the presence of the testator.”

Under this statute it was held, In re McElwaine, 18 N. J. Eq., 499, that “Four things are required: First, that the will shall be in writing; secondly, that it shall be signed by the testator; thirdly, that such signature shall be made by the testator, or the making thereof acknowledged by him in the presence of two witnesses ; fourthly, that it shall be declared to be his last will in the presence of these witnesses. Each and every one of these requisites must exist. They are hot in the alternative. The third requisite contains an alternative, but one of these alternatives must exist. The second requisite, the signing by the testator, must exist The second alternative of the third, to wit, that he acknowledge making of the signature,’ will not supply the want of the second. Where there is no proof as to the making of the signature, such acknowledgment is sufficient evidence that he made it, and would prove compliance with the requisite of signing by him. But when it is clear that the testator did not sign the will, this acknowledgment is not sufficient. The words of the act are clear; and the object is equally clear, and requires this construction to the words.” This language was used in respect to a vill to which the name of the testatrix was subscribed by one of the subscribing witnesses at her request, in her presence and in the presence of both subscribing witnesses. After this was done the testatrix said, “ that was her name and seal,” but did not acknowledge it to be her signature, nor did she then declare that the instrument was her will; and it was held not to have been executed in accordance with the statute.

Whenever the name of a testator appears, whether in the body or at the end of a will, it must have been written with intent to execute it, otherwise it is without force. When a testator, or the maker of a contract subscribes it at the end and in the manner in which legal instruments are usually authenticated, a presumption arises that the signature was affixed for the purpose of creating a valid instrument. But when the name is written near the beginning of the document, where, as a rule, names are inserted by way of description of the person who is to execute it, and rarely as signatures, it must, before it can be held to have been inserted for the purpose of validating the instrument, be proved to have been written with that intent.

The record contains no evidence tending to show that Mrs. Booth, directly or indirectly, by word or gesture, referred to her name in the first line of the paper as her signature, nor is there evidence of any act on her part from which it might be inferred that the name there written was intended to be in execution of a completed will, and her simple declaration to Mamie Clifford, one of the subscribing witnesses, “This is my will, take it and sign it,” standing alone, is insufficient to sustain a finding or verdict that the name “ Cecilia L. Booth,” written by her in the first line of the document, was there written with intent that it should have effect as her signature in final execution of a will

We are referred by the learned counsel for the appellant to In re Higgins, 94 N. Y., 554; In re Phillips, 98 id., 267; In re Hunt, 110 id., 278 ; 18 N. Y. State Rep., 118, in which it was held that when a testator subscribes a will at the end and exhibits it and the signature to the subscribing witnesses, declares it to be his last will and testament, and requests them to sign it as witnesses, it is a sufficient acknowledgment of the signature. Those cases are quite different from the one at bar, in this, the signatures having been subscribed at the end, in the usual way in which instruments are finally authenticated, the legal presumption arose that the signatures were written for the purpose of finally executing the documents, but, as we have before shown, there is no legal presumption arising from the face of this instrument that the name was written as a signature, nor is there evidence outside of the paper from which such an inference can be safely drawn. It has been the object of the statutes of the various states, prescribing the mode in which wills must be executed, to throw such safeguards around those transactions as will prevent fraud and imposition, and it is wiser to construe these statutes closely, rather than loosely, and so open a door for the perpetration of the mischiefs which the statutes were designed to prevent

The judgment and orders appealed from should be affirmed, with costs payable out of the estate.

All concur, except Brown, J,, not sitting.


author: Vann, J. Haight, J. (dissenting).

text:
    In the Matter of the Estate of Worthington Romaine, Deceased.

      (Court of Appeals, Second Division,

      Filed June 2, 1891.)

    Collateral inheritance tax—Non-resident decedent.
    Personal property of a non-resident intestate, invested or habitually kept by him in this state, is subject to taxation under the collateral inheritance act, as amended in 1887.
    (Haight, J., dissents.)
    Appeal from an order of the general term of the supreme court in the first judicial department, affirming a decree of the surrogate of the city and county of New York, which assessed a tax under the Collateral Inheritance act,” and also affirming an order of said surrogate appointing an appraiser under said act.
    This was a proceeding instituted by the district attorney of the city and county of New York to compel the administrator of the estate of one Worthington Romaine, deceased, to pay taxes upon certain collateral inheritances, pursuant to chap. 483 of the Laws of 1885, as amended by chap. 713 of the Laws of 1887.
    September 27, 1888, said Romaine died, unmarried and intestate, at Petersburg, Va., leaving as his only next of kin a brother and a sister, residing in this state, and two nephews and a niece, who were non-residents. For at least ten years prior to his death he had been a resident of and domiciled in the state of Virginia, but no letters of administration appear to have been issued or applied for in that state. At the time of his death, and for about three years prior thereto, he was the lessee of a box in a safe deposit company in the city of New York, in which he kept certain securities, consisting of stocks and bonds of different corporations and a mortgage upon real estate in said city, as well as several pass-books, showing deposits by him in various savings banks in the same place to a considerable amount. It did not appear whether said stocks and bonds were issued by foreign or domestic corporations. That part of said property so invested or kept in this state, to which his nephews and nieces were entitled, being one-third of the whole, was appraised at the sum of $23,742.15.
    October 12, 1888, letters of administration were issued upon his estate by the surrogate of the city and county of New York, and when this proceeding was initiated the administrator had distributed the most of the assets among the next of kin. December 6, 1889, an appraiser was appointed and upon his report a decree was made by the surrogate imposing a tax of five per cent upon the shares of the nephews and niece of the decedent, and the administrator was directed to pay the same. Upon appeal to the general term the decree was affirmed and the administrator thereupon appealed to this court.

      Robert L. Redfield, for app’lt; Benjamin F. Dos Passos, for resp’t.

       Affirming 33 N. Y. State Rep., 784.

   Vann, J.

The question presented by this appeal is whether succession to the personal property of a intestate, vested or habitually kept by him in this state, is subject to taxation under the Collateral Inheritance act.

The original act provided that after the passage thereof “ All property which shall pass by will or by the intestate laws of this state from any person who may die seized or possessed of the same while being a resident of the state, or which property shall be within the state,” to any one other than certain excepted persons nearly related to the decedent, should be subject to a tax of five dollars upon the hundred “ of the clear market value of such property.” Laws of 1885, chap. 483, § 1. When this statute came before the courts for construction, it was held not to apply to property within this state, either real or personal, that passed by will or intestacy from a non-resident decedent to collateral relatives or strangers, and that it was limited in its effect to property so passing from resident decedents. Matter of Enston, 113 N. Y., 174 ; 22 N Y. State Rep., 569 ; Matter of Tulane, 51 Hun, 213; 21 N. Y. State Rep., 191; Matter of Clark, 9 N. Y. Supp., 444; 29 N. Y. State Rep., 650. In 1887, however, the legislature amended the act so that it now provides that all property which shall pass by will or by the intestate laws of this state, from any person who may die seized or possessed of the same while a resident of this state, or if such decedent was not a resident of this state at the time of death, which property, or any part thereof, shall be within this state.” Laws of 1887, chap. 713, §1. The part inserted by the amendment is italicized for convenience of comparison. What did the legislature wish to accomplish when it inserted these words ? This question is not easily answered, for the section is so involved as to make the duty of discovering its meaning unusually difficult. Shortly after the original act was passed litigation arose over its provisions, and the courts were called upon to discharge the delicate function of declaring what the confused and conflicting passages meant. The surrogate’s court and the supreme court held that the act, before it was amended, applied to the estates of non-resident decedents, and when the question reached the court of appeals two of its judges were of the same opinion, but a majority thought otherwise, and the construction of the lower courts was overturned. Matter of Enston, 5 Dem., 93 ; 8 N. Y. State Rep., 781; S. C., 46 Hun, 506 ; 10 N. Y. State Rep., 380; S. C., 113 N. Y., 174, 183; 22 N. Y. State Rep., 569. Although the amendment of 1887 was probably passed in view of the litigation then pending, and with the intention of removing the doubt caused thereby, candid men are still compelled to hesitate and divide in pronouncing judgment.

It must be assumed that the legislature in passing the amendment intended to make some change, and the expression, “ or if such decedent was, not a resident of this state at the time of death,” suggests what that change was. Before it was amended the act, as was subsequently held, applied only to one class of persons, resident decedents, but by the amendment it is made applicable to another class, non-resident decedents. But does it apply to all persons belonging to these two classes ? It is not denied that it applies to all resident decedents, and to all non-resident testators, but it is contended that it does not apply to non-resident intestates, because property which shall pass * * * by the intestate laws of this state ” is expressly mentioned to the implied exclusion of property passing by the intestate laws of other states. This is the position of the appellant, whose learned counsel claims that the act, in its present form, was designed to meet cases of succession by will, but not of succession by intestacy, unless the intestate was a resident of this state. It is difficult, however, to see why the legislature should discriminate, simply for the purpose of taxation, between the property of a non-resident decedent who made a will and of one who did not. It is not probable that there was an intention to tax the estates of non-resident testators and to exempt those of non-resident intestates, because there is no foundation for such a distinction. People ex rel. Westchester Fire Ins. Co. v. Davenport, 91 N. Y., 574, 585.

Property of the same kind, situated in the same place, receiving the same protection from the law and administered upon in the same way would natually be required to contribute toward the expense of government upon the same basis, regardless of whether its last owner died testate or intestate. The language of the act, as amended, does not indicate the intention thus contended for when the entire section is read together, because non-resident decedents are mentioned, while non-resident testators are not. Although “ the intestate laws of this state ” are named as a source of title, they are not the exclusive source, and neither necessarily nor naturally apply to the property of non-resident decedents named at a later point in the section. In this discussion is is assumed, as the appellant claims, that the personal property of such persons passes according to the laws of the state where they reside. By comparing the original with the amended act and analyzing the provisions of the latter in the light thus afforded, we think that the legislature intended by the fore part of the sentence under consideration to provide for succession to the estates of residents, to which “the intestate laws of this state” apply; that after providing for that class a change is made, indicated by the use of the disjunctive particle “ or,” which suggests a transition to another subject, and introduces another class, nonresidents, who are also provided for, and then each class is carried forward to the taxing clause, which embraces both. As thus construed, “ the intestate laws of this state ” have no application to the second class, being separated from it by the word “ or ” and confined to that clause of the sentence in which they occur. They are not repeated in the second clause, either literally or by implication, although the words “ all property” in the first clause are repeated in the second in the form of “ which propertybut no limitation is there applied to them. “ Which property,” as. thus used, means the property of the non-resident decedent, and such property, if personal, would not pass by the intestate laws of this state. This construction is confirmed by referring to other portions of the act, which provide that “ all administrators, executors and trustees ” shall be liable for the taxes until paid (§ 1), and that whenever any foreign executor or administrator shall assign or transfer any stocks or loans in this state, standing in the name of a decedent,” the tax shall be paid to the proper officer on such transfer, or the corporation permitting it shall become liable to pay the tax, provided it had knowledge of the facts in time. Section 11. It is clear that the act is not confined to real estate, but embraces personal property also, including evidences of debt All administrators are made liable for the tax, and corporations can transfer stock standing upon their books in the name of a non-resident decedent only at their peril until the tax thereon is paid. The fiction of law that personal estate has no situs away from the person or residence of its owner is done away with, to a limited extent and for a specified purpose, and the truth is substituted in its stead as the rule of action. That the legislature had the power to do this can hardly be questioned. Matter of McPherson, 104 N. Y., 306; 5 N. Y. State Rep., 680. As was said by Judge Story, when writing upon this subject: “A nation within whose territory any personal property is actually situated has an entire dominion over it while therein, in point of sovereignty and jurisdiction, as it has over immovable property situated there.” Conflict of Laws, § 550. In Hoyt v. Commissioners of Taxes, 23 N. Y., 224, 228, Judge Comstock quotes with approval the foregoing extract, and adds: “lean think of no more just and appropriate exercise of the sovereignty of a state or nation over property situated within it and protected by its laws, than to compel it to contribute toward the maintenance of government and law. Accordingly there seems to be no place for the fiction of which we are speaking (mobilia personam sequuntur) in a well adjusted system of taxation.” See also Guillander v. Howell, 35 N. Y., 657; Graham v. First National Bank of Norfolk, 84 id., 393, 401; Catlin v. Hull, 21 Vt., 152; Dos Passos on Collateral Inheritance, 37, 92.

Orcutt's Appeal, 97 Penn. St., 179, is pressed upon our attention as opposed to the views here expressed, but that case was decided under a statute differing materially from the one under consideration. Purd. Dig., vol. 1, 259. The main point of contention there was whether United States bonds, no matter where deposited, had a situs different from the domicil of their owner, and it was held that they had not, by the act then under review, which was declared “ to embrace only personal property of a tangible nature, actually situated or used for business purposes within the commonwealth, and not to mere certificates of indebtedness, such as government bonds.”

It was held otherwise by the court of appeals of Maryland, in State v. Dalrymple, 70 Md., 294, where the words “being in this state,” were declared to refer to the actual and not to the constructive situation of the property.

In Alvany v. Powell, 2 Jones Eq., 51, it was held that property, whether real or personal, situate in the state of North Carolina, but belonging to one domiciled and dying intestate in Canada, was subject to the succession tax imposed by a statute of said state.

When the Matter of Enston, supra, was before this court the amendment of 1887 had been passed, but it did not apply to the facts of that case, because they arose before its passage, although the decision was made afterward. Still the amendment was considered in the prevailing opinion which stated (p. 183), that “ by chapter 713 of the Laws of 1887, section 1 of the act of 1885 was so amended as to subject to its operation the property within this state of a non-resident decedent; and this amendment furnishes some evidence that prior thereto the proper construction of the section, according to the understanding of the legislature, did not include within its operation such property.” In the dissenting opinion reference was made to the same subject in this way (p. 184): “ Under either statute (the original and the amendment), the clear' intention was to bring in for taxation all property, real and personal, without regard to residence, which was within the jurisdiction of the courts of this state, and to be administered under its laws for the beneficiaries named in the act, subject only to the exceptions named in the act itself.” All of the property in question has been administered upon in this state alone. There appeared to be no difference in the minds of the six judges who took part in the decision as to the effect of the amendment of 1887. Apparently, they were all of the opinion, as the most of those participating in this decision are, that by the change then made the act applied to the property within this state of any non-resident decedent

The appellant further contends that the property in question was not “ within this state,” according to the true meaning of the statute, and the contention is supported by the argument that it would be unreasonable to tax the money found upon the person of a non-resident who died while traveling in this state. We should hesitate before applying the statute to any property casually brought into the state for a temporary purpose, as by a visitor or traveler, but the record before us does not present such a case. It might well be held that such property, although literally “ within this state,” was not here in the sense meant by the statute, on account of the transitory and accidental character of its presence and the immediate custody of the owner. Herron, Treasurer, v. Keeran, 59 Ind., 472, 476. Where, however, the-money of a non-resident is invested in this state, as it was by Mr. Romaine in the bond and mortgage in question, and in the deposits made by him in the savings banks, or where the property of a non-resident is habitually kept, even for safety, in this state, we think that the statute applies both in letter and spirit. Such property is within this state in every reasonable sense, receives the protection of its laws and has every advantage from government, for support of which taxes are laid, that it would have if it belonged to a resident. We think that a fair construction of the act permits no distinction as to such property, based simply upon the-residence of the deceased owner. We have nothing to do with the policy of the statute, as our duty is discharged when we declare its meaning and apply it to the case in hand. That duty we discharge in this instance by adjudging that succession to the personal property in question, lately belonging to Worthington Romaine, a non-resident intestate, but invested or habitually kept by him in this state, is taxable under the Collateral Inheritance Act, in so far as it passed to persons not excepted from its provisions.

The orders should be affirmed, with costs.

Haight, J. (dissenting).

The question is as to whether the next of kin of a non resident decedent intestate are liable to pay a collateral inheritance tax on the personal property of such decedent found within this state.

The statute provides that “ after the passage of this act all property which shall pass by will or by the intestate laws of this state, from any person who may die seized or possessed of the same while a resident of this state, or if such decedent was not a resident of this state at the time of death, which property, or any part thereof, shall be within this state * * * shall be and is subject to a tax of five dollars on every hundred dollars of the clear market-value of such property,” etc. Chapter 713, Laws of 1887.

The taxes imposed by this act are special, and not general, and the rule is that special tax laws are to be strictly construed against the government and favorably to the taxpayer; that a citizen cannot be subjected to special burdens without clear warrant of law. In the Matter of McPherson, 104 N. Y., 306, 317; 5 N. Y. State Rep., 680; Dos Passos on Collateral Inheritance Taxes, 41. In the Matter of Enston, 113 N. Y., 174, 177; 22 N. Y. State Rep.,569, Andrews, J., in delivering the opinion of the court, says: “The tax imposed by this act is not a common burden upon all the property or upon the people within the state. It is not a general but a special tax, reaching only to special cases and affecting only a special class of persons. * * * In such a case they (the executors) have the right, both in reason and in justice, to claim that they shall be clearly brought within the terms of the law before they shall be subjected to its burdens. It is a well established rule that a citizen cannot be subjected to special burdens without clear warrant of law.”

With this rule in view, operating as our guide, let us review the statute. “All property which shall pass by will or by the intestate laws of this state from any person who may die seized or possessed of the same while a resident of this state.” Here we have clearly expressed the legislative intent to subject to the tax both real and personal property of a resident which shall pass by will or by the intestate laws of this state. The condition upon which the tax may be imposed is, that the property shall pass by will or by the intestate laws of the state.

“ Or if such decedent was not a resident of this state at the time of death, which property or any part thereof shall be within this state.” As we have seen, the former clause of the statute quoted refers to the residents of the state, and the latter clause to nonresidents. The two clauses are connected by the word “ or." But we do not understand that by the use of this word it was intended to provide for the taxing of other property than that mentioned in the former clause, but only to provide for the taxing of such property of a non-resident decedent which shall be within this state at the time of his death, and this intention is made apparent from the use in the latter clause of the words “ which property,” thereby referring to the property which should pass by will or the intestate laws of this state.

If we are correct in this interpretation of the statute, it follows that the tax in question was improperly imposed, for the reason that the property of the decedent found in this state was personal, and the situs being with the owner, it would not pass by the intestate laws of this state. Bedfield Surrogate’s Court, 2d ed., 588.

Chapter 483 of the Laws of 1885 was amended by the act in question by the insertion of the words “ if such decedent was not a resident of this state at the time of death.” Under the former act it was held that the tax could be imposed only upon property so passing by will or by the intestate laws of this state, etc. In the Matter of Enston, supra.

It is not contended that it was the intention in amending the former act to bring in non-resident decedents, and subject their estates to the same burdens as residents. This was doubtless the intention as to the real estate, but as to the personal estate we cannot assume that it was the intention to impose a greater or heavier burden upon non-residents than that which was imposed upon residents.

Under the act of 1885 the tax could not be imposed upon the real estate within this state of a non-resident. Such real estate is subject to the jurisdiction of our state and would pass under its laws and under the amended provision of the act of 1887 it would clearly be assessable here and could not be elsewhere. But it is quite different with the personal property of a non-resident. As we have already stated, the situs of such property is with the owner, and upon his death is distributed according to the law of his domicil, and does not pass under our intestate laws. Bed-field Surrogate’s Court, supra.

In many of the states similar laws to the one in question have been enacted. So that if the personal property of a non-resident decedent should be assessed in this state and the tax imposed upon the next of kin, it would subject them to the payment of a double tax, for, after the transmission of the property to the state of the domicil, it would pass under the laws of that state, and they would be liable to the payment of a similar tax in that state. And the same would be true of a decedent of this state who should die having personal property in another state. After being taxed in that state, and the property transmitted to this state, it would pass under our laws, and would, consequently, under the provisions of the act, be clearly liable to the assessment of a collateral inheritance tax.

Again, referring to the statute, all property which shall pass by will or the intestate laws of this state shall be subject to the tax.

In determining the question whether the property is subject to the tax, the test is, does it pass in the manner provided by the statute ?

As we have seen, the property in question does not pass by will or under any of the laws of our stats

The order should be reversed and the proceedings dismissed.

Orders affirmed, with costs.

All concur, except Haight, J., dissenting.


author: Learned, P. J.

text:
    Hammon Herrington, Resp’t, v. Catharine Winn, as Ex’rx, App’lt.

      (Supreme' Court, General Term, Third Department,

      Filed May 21, 1891.)

    1. Evidence—Transactions with deceased person—Code Civ. Pro., §829.
    A claimant against the estate of W. was allowed to show that figures, showing the price and numbers of certain cords of wood in suit, were entered in a book of W. by his son at his direction, and that they agreed with figures in a book of the claimant; the book of W. which had been produced on notice was admitted as evidence for the claimant. Held, error; that this was a personal transaction with W. within § 829, Code Civ. Pro.
    2. Same.
    The plaintiff in the action called the administratrix as a witness in his own behalf .and examined her as to the above transactions, which she substantially denied. Her own counsel on cross-examination inquired of her as to the physical condition of W. at the time. This was excluded. Held, error; that the condition of the testator was material upon the point whether the transaction took place, was a part of it and not objectionable under Code, § 829.
    3. Same.
    Such testimony upon his part did not entitle the plaintiff to testify as to the physical condition of the deceased at that time.
    4. Same—Physicians—Code Civ. Pro., § 834
    A physician, not the family physician of W., attended him once. He was called by the defendant to testify whether upon that day W. was conscious or unconscious. Decision was reserved. The physician was recalled and asked whether the information he obtained on that day was necessary to enable him to prescribe and whether he obtained any information at that time necessary for such a purpose. The questions were excluded. Held, that these latter questions were proper whether or not it ultimately turned out that the witness was competent to state the condition of W.
    Appeal from judgment in favor of plaintiff, entered upon the report of a referes

      J. H. Hoag (R. A. Parmenter, of counsel), for app’lt; James C. Patton (Frank S. Black, of counsel), for resp’t.
   Learned, P. J.

This is a claim against the estate of Walter W. Winn, referred under the statute. The referee reported in favor of the plaintiff, and the defendant

Two questions are raised; the first, that the referee admitted evidence inadmissible under § 829 Code of Civ. Pro.; the second, that he excluded evidence, under § 834, which was admissible.

The plaintiff was called on his own behalf. A memorandum book of the deceased defendant was produced by defendant. The plaintiff testified that he saw the book in Winn’s house, and that Winn and Fred. Winn, the son, were present; that he saw pages sixteen and seventeen, and saw the figures put on those pages ; that Fred. Winn put them on, and that his father was present; that he also saw a “blank leaf,” paged 213 and 214 ; that he himself put the figures on that paper in presence of Winn and his son Fred.; that Fred, and plaintiff at that time compared the figures on pages sixteen and seventeen with those on plaintiff’s book, the number of cords of wood, and how much they came to; that Fred. Winn read the figures off aloud; that Winn directed Fred, to put the figures down in the book in plaintiff’s presence (that being plaintiff’s book); that on comparing the two books, that is, plaintiff’s book and defendant’s book and the “blank leaf,” the figures corresponded. The two books were then given in evidence by plaintiff.

The referee found that these entries, specifying them, were made by Fred. Winn in the presence and by the direction of the testator, and were read aloud by his said son in his presence.

The case shows that some of the evidence was taken subject to objection, and especially the question whether Winn directed Fred, to put down these figures in plaintiff’s presence was objected to as a transaction between deceased and the witness. The objection was overruled and defendant excepted. Church v. Howard, 79 N. Y., 415.

The plaintiff insists that, if this testimony was objectionable when given, the objection was overruled by subsequent testimony given by defendant. We see nothing to justify this position. The cases cited by the plaintiff do not sustain it The plaintiff had himself called the defendant as a witness and had examined her as to the examining of accounts above referred to. She denied that it had taken place. This did not make the plaintiff competent to testify to the transaction. And after plaintiff had so testified her denial of such a transaction could not make his testimony competent if it had been incompetent before.

We are obliged, therefore, to inquire whether the plaintiff was competent to testify as he did. This was a personal transaction between plaintiff and the testator. The business was the examining and adjusting of accounts. That the testator acted through his son Fred, did not make the affair any the less a transaction with the plaintiff. The case of Cary v. White, 59 N. Y., 336, is questioned in Matter of Eysaman, 113 N. Y., 62 at 73; 22 N. Y. State Rep., 136. But even that case does not sustain the ruling here. And more recent cases condemn it See in addition to the case last cited, Holcomb v. Holcomb, 95 N. Y., 316; Matter of Dunham, 31 N. Y. State Rep., 858. The object of the testimony was to show that testator stated or acknowledged the amounts as correct And whether the plaintiff testified to this in direct words, or testified that the testator told his son to put down the figures after Fred, had read them aloud, the same result is obtained and the statute is equally violated.

After the plaintiff had examined Mrs. Winn she was cross-examined by her own counsel as to the condition of the testator at the time of the alleged transaction. Then the plaintiff was recalled and was asked on his own behalf as to the condition of the testator. This was objected to under § 829. Now Mrs. Winn’s testimony related to the same transaction'as to which she had been called by the plaintiff. The testator’s condition on the day of the alleged transaction was material on the question whether the transaction took place. She was entitled to give the testimony. Nay v. Curley, 113 N. Y., 575; 23 N. Y. State Rep., 496. The question then arises, did this permit the plaintiff to testify as to testator’s condition. We think not. Mrs. Winn had not testified voluntarily. She came on the stand as plaintiff’s witness. She was, therefore, at liberty, without thereby prejudicing her own position, to testify to all the facts forming a part of the transaction. She would be much prejudiced if she could not do this without making the plaintiff competent, where by § 829 he would be incompetent. And the condition of Winn at the time of the transaction was a fact forming part of the transaction itself.

Another question arises as to the exclusion of testimony of Dr. Garland. He was a physician, and a friend of testator’s. He was not his family physcian. But he did attend him the 22d of December. He was called as a witness for the defendant and testified as to the unconsciousness and consciousness of testator.

The plaintiff moved to strike out this testimony. The referee reserved his decision. Afterwards the defendant recalled the doctor and asked him whether the information he obtained on the 22d of December was necessary in order to enable him to prescribe professionally ; also, whether he obtained any information that day which was necessary, etc. Defendant also offered to show by the doctor that the testator’s condition was such that any person of ordinary intelligence could understand it as well as a physician. These questions were objected to and excluded. And finally the referee struck out the doctor’s testimony. It is not necessary to repeat § 834. People v. Schuyler, 106 N. Y., 298 at 304; 8 N. Y. State Rep., 860, cites approvingly Edington v. Ætna Life Ins. Co., 77 N. Y, 564, and holds that to exclude the testimony of the physician the party must show, among other things, that the information acquired by the physician was such as was necessary to enable him to act in his professional capacity. Under these decisions we do not see why these questions were not proper. Whether it would finally appear that the physician could, or could not, testify as to the testator’s condition is another matter. But he should have been allowed to explain as to the nature of the information. The decisions on this section are not entirely clear. And, indeed, it is not easy to draw the line between information obtained by a physician’s professional observation and such as would be plain to every intelligent observer, as suggested in the Edington case. But these questions excluded might have thrown some light on the nature of the information obtained by the doctor, and might perhaps have justified its retention.

The judgment should be reversed, referee discharged, new trial granted, costs to abide event.

Landon, J., concurs; Mayham, J., not acting.


text:
    Archibald A. McLaughlin, Resp’t, v. John I. Charles, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 21, 1891.)

    1. Slander—Privileged statement.
    A city charter authorized its common council to summon witnesses to appear and testify and to punish for a refusal. The defendant had alleged that the plaintiff, the city engineer, had been bribed by contractors to give them certificates for work done. Subsequently the common council made an investigation, at which time the defendant as a witness repeated these charges in substance. Held, that the defendant’s statements as such witness, so long as they were confined to the issues before the tribunal, were absolutely privileged and that he was not liable upon them whether his testimony was true or false, or whether uttered maliciously or not.

      2. Same—Malice.
    His testimony given before the common council could not be deemed a repetition of the slander and hence showing malice.
    3. Same.
    In such case it is error for the court to charge that his testimony there given - was privileged only so far as it was true and that if untrue it showed express malice.
    Appeal from judgment in favor of plaintiff entered on verdict and from order denying motion for a new trial.

      M. L. Stover, for app’lt; Westbrook & Borst (Z. S. Westbrook, of counsel), for resp’t.
   Learned, P. J.

This is an appeal from a judgment on verdict and from an order denying a new trial. The action is for slander. The complaint alleges that the defendant, about the 7th of December, spoke slanderous words of the plaintiff, setting them forth, and that on the 12th of December he reiterated them.

The answer substantially admits the speaking of the words on December 7, and in regard to the reiteration on December 12, avers that it was made while giving testimony as a witness in an investigation made by the common council of Amsterdam. On the trial the plaintiff relied on the admission of the answer. He was a witness on his own behalf, and proved the circumstances under which the reiteration was made substantially as stated in the answer.

Testimony to establish the truth of the charges contained in the slanderous words was given by defendant. And this testimony was afterwards contradicted by that of the plaintiff.

The learned justice in charging the jury said, in regard to the point that the communications were privileged: “ He, the defendant, had a right, and it was his duty to go before the common council and give testimony, * * * but he was privileged only to the extent of speaking the whole truth and nothing but the truth, in reference to those charges. So that at last the jury must come down to the question: are the allegations that the defendant made in reference to the conduct of the plaintiff true or false.” “ That he reiterated them before the common council, if they are untrue, was an additional aggravation that we may take into account”

To this the defendant excepted.

At defendant’s request the court charged that as to the investigation no damages can be given for words there spoken, unless express malice be shown. And the court added: “If they-were untrue, it shows express malice,” to which defendant excepted.

The plaintiff was in the employ of the city of Amsterdam, but was not an officer. The charter of the city, Laws of 1885, chap. 131, § 32, authorizes the common council to summon a person to' appear and testify before them, and provides for the punishment of a witness refusing to answer. The matter before the common council at that time was an investigation as to the plaintiff’s conduct in matters connected with his work and duty as city engineer. It was therefore a proper subject of investigation. As he was not an elective officer, formal charges were not needed. Section 16. This investigation before the common council was then a judicial investigation in the sense that the common council could summon witnesses, administer an oath to them and punish them for refusing to testify. Hosmer v. Loveland, 19 Barb., 111. Testimony given under such circumstances is absolutely privileged. That is so long as the testimony is confined to the matter before the tribunal, the witness is not liable for what he says, whether he utters it maliciously or not, or whether it is true or false. Of course he may not abuse this privilege by going outside of the questions put to him, and making false and slanderous statements. But it is essential to the due administration of justice that the witness should be at liberty to testify without the peril of an action for slander if some person deems his testimony slanderous and false. Hastings v. Lusk, 22 Wend., 410; Moore v. Man. Nat. Bank, 34 N. Y. State Rep., 337; S. C., 123 N. Y., 425. This principle is not denied by the plaintiff. But he urges that it must appear that the statements were relevant to the issue. In this case they were clearly. The issue was whether the plaintiff had accepted and demanded money from contractors for performing the duty of making certificates. The testimony was directly relevant.

But the plaintiff further urges that while this principle would apply if this were an action for slander in speaking those words, yet inasmuch as the speaking of those words is only alleged as a reiteration of the former slander and as an aggravation, the principle does not apply.

The plaintiff argues that the plaintiff may show a repetition of the words for the purpose of showing malice and increasing the damages. There is no doubt of that general rule; that a repetition of the words may be shown as evidence of malice. But the question here is this: When such repetition is an absolutely privileged communication, can it then be shown in order to prove malice? To determine this we must consider the reason why certain communications are held absolutely privileged. It is not to protect falsehood. But it is because public policy requires that when persons are witnesses on a trial they may testify freely and without danger. A witness is often compelled to say unpleasant things. He is often obliged by his testimony to charge some person with having committed a crime. Mow, if the person thus charged could sue the witness for slander and the only defense of the witness should be to prove the truth oE his testimony, he would be in a very bad predicament. He might have no means of proving the truth of his testimony. And, at any rate, it would be a great annoyance to be sued and compelled to defend on that ground. It is then for public policy that the rule exists.

Now, if this is the ground and reason of the rule, it applies when the testimony of a witness is offered as a reiteration to show malice. The witness testified under compulsion, and he is entitled to the protection that what he says as a witness shall not be a cause of injury to him.

Let us suppose that a witness has made a statement to one person which is slanderous in its terms. The statement is true, but he has no other witness to its truth than himself. The publicity is small and the damages recoverable might be proportionally small. But subsequently he is called as a witness on a trial and compelled to state the same matter. Thus he has been compelled to make a very public statement. What he has said is true, but he cannot prove its truth. Mow, it would be highly unjust to permit this compulsory statement to be used as a reiteration of the slander, with the charge of the court that he was privileged only to the extent of speaking the whole truth. He would thus be deprived of that important protection given by the principle that such communications are absolutely privileged.

We think, therefore, that it was error to charge that the testimony given before the common council was privileged only as far as it was true, and that if untrue it showed express malice.

We have taken the plaintiff’s grounds, viz.: That the allegation in the complaint in regard to the testimony before the common council was merely intended as aggravation of damages and not as a separate cause of action. It has not been considered necessary to set forth such aggravation in the complaint; and we do not feel confident that the allegation does not state a separate cause of action. If it be a separate cause of action then the views we have stated apply, as the plaintiff concedes.

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

Landon and Mayham, JJ., concur.


text:
    In the Matter of the Application to Compel Mary Swan, as Exr’x, to give further security.

      (Supreme Court, General Term, Third Department,

      Filed May 21, 1891.)

    Will—When a life estate is given.
    A testator gave his widow the “ use and benefit ’’ of all his estate during her life and as long as she remained his widow. It directed a payment of §500 to be made to his son; that after the death or marriage of his widow “ the balance” of his estate should be divided between his son and daughter, and that in case of remarriage his widow should be first paid $200. It authorized his executors to sell his property real and personal to pay off debts and to keep the balance at interest until the property was divided as specified in the will. Held, that the widow did not take a fee but was entitled only to the income and in case of marriage to $200.

      Appeal from decree of surrogate denying application to compel Mary Swan, as executrix of Hiram Swan, deceased, to give new or further security for the faithful performance of said trust, or supersedure of her letters testamentary.

      Lansing Hotaling, for app’lt; Krum & Grant (John B. Grant, of counsel), for resp’t.
   Learned, P. J.

The learned surrogate in denying this application placed his decision, not on grounds of discretion, but on the ground that under the will Mary Swan has a right to the principal, as well as the interest, of the estate after payment of the debts and of the legacy to Erskine. The appeal, therefore, requires us to construe the will in this respect

It gives to Mary Swan “ the use and benefit of all my estate, real and personal, during the term of her natural life, or as long as she remains my widow.”

It excepts, however, $500 to be paid to the testator’s-son, Ersskine, when he becomes twenty-one. This has been paid.

It declares that after the death or marriage of Mary, “ the balance of my estate ” shall be equally divided between his son Erskine and his daughter Mary Etta; only that in case of the marriage of said Mary, she be first paid $200 out of the balance.

It authorizes the executors to sell “real estate, farming utensils and stock, household furniture and plank road stock ; to pay off debts and put the balance at interest, and to keep it at interest till the property is divided as above specified.”

It will be seen then that the interest which the widow Mary was to enjoy was to cease at her death or marriage; but on her marriage she was to have $200 before the residue was divided between Erskine and Mary Etta* That clause evidently shows that the testator had in mind that a certain sum at least would be kept of the principal of the estate. So, also, the item giving $500 to Erskine when he should become twenty-one (which would be seven years after testator’s death) shows that the testator did not intend that the whole estate should be used up before that time. To the same effect is the direction that the executors may sell the land and keep the avails at interest till the property is divided. This does not indicate that the property was to be consumed.

In coming then to construe the gift to the widow we must notice that it is expressed to bo during the term of her natural life, or as long as she remains his widow. It will be found that, in this respect, the language differs from many of the cases cited by respondent. A gift of the use and benefit of an estate does not mean more than the estate itself. And a gift of an estate to a person during the term of her natural life, or as long as she should remain a widow, would not be understood to carry a fee.

The case of Campbell v. Beaumont, 91 N. Y., 464, is one of the strongest in support of the respondent’s views. But there the gift was not limited by the words “ during her life,” or any similar words. The question arose on the subsequent clause that, in case of her decease, the same or such portion as should remain should be received by her son Charles. The clause was held not to limit the prior gift The very words “ such portion as should remain ” showed that some portion might be used. So in Crain v. Wright, 114 N. Y., 310; 23 N. Y. State Rep., 245, there were no words limiting the gift to life or widowhood.

In Smith v. Van Ostrand, 64 N. Y., 278, there were the words, during her natural life, following a bequest of money in lieu of dower. The court said that they should construe this to give only a life estate except for a subsequent provision, viz., that fifty dollars was to be paid the widow as soon as practicable, and the residue in six months. The court thought that this peculiar provision showed that the testator intended that she should use what was necessary. If there had been no such provision, she would have had only the use of the income. No such provision exists here. In Matter of Cager, 46 Hun, 657; 13 N. Y. State Rep., 45, the words “during the term of her natural life ” were in the will. But there were also the words “ at her disposal," and the bequest and devise after the death of the wife were of the estate “ that may remain at the decease of my wife.” These clauses were thought to give the wife more than a life estate. The question, however, arose only on an assessment of the inheritance tax. And there was no conflict on that point between the life tenant and the remainderman.

In Cohen v. Cohen, 4 Redf., 48, the will gave the residue of which the wife should die possessed to the children. This was construed as giving her a power of disposal. Similar is the case of Leggett v. Firth, 6 N.Y. Supp., 158 ; 25 N. Y. State Rep., 332.

Now in the present case, unlike those cited by the respondent, the gift to the wife is expressly stated to be during the term of her natural life or during widowhood. So that the gift is by its express terms limited to a life estate. Nor is there anything iy the disposition of the remainder after her life indicating that such remainder was confined to what the widow should not have disposed of during life. The word “balance ” used in the third item evidently refers to the residue after paying Erskine his $500.

Indeed, it is evident that the testator could not have intended that the widow should use up the principal; because he provided for two legacies therefrom, viz.: that to Erskine and that to the widow on remarriage. If she was authorized to use the whole, there would be no need of giving her $200 of the principal at her remarriage.

The views above stated are supported by Taggart v. Murray, 53 N. Y., 234; Millard's Estate, 9 N. Y. Supp., 127; 27 N. Y. State Rep., 789; Carpenter v. Carpenter, 2 Dem., 534; and they result from a consideration of the language of the whole will. Roseboom v. Roseboom, 81 N. Y., 358. They are consistent also with the circumstances at the time the will was made and at the time of testator’s death.

The testator left surviving his widow, aged forty-four, his son, aged fourteen, his daughter, Mary Etta, aged four. It was natural that he should give the use of the property to his widow for life or till remarried; and the principal after her death to his children.

The respondent appeals to our sympathy in behalf of the widow as against the appellant, whose interest is by marriage and by the death of Erskine. But these are considerations with which we have nothing to do. It is our duty simply to construe the will.

We think the widow was by the will entitled only to the income and to the $200 in case of remarriage.

Decree reversed, and matter sent back to the surrogate for action according to his discretion under this construction. Costs of this appeal to be paid to appellant out of estate.

Landon, J., concurs; Mayham, J., not acting.


text:
    James Toomey, App’lt, v. The City of Albany, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed May 21, 1891.)

    Negligence—Municipal corporations—Complaint.
    A complaint in an action for negligence alleged the incorporation of the defendant; that plaintiff left a horse and sleigh in charge of another person in a street; that while the sleigh was standing there it was struck by a bob-sleigh coasting down the street; that the plaintiff’s sleigh was broken and the horse injured; that plaintiff attempted to hold the horse and was thereby injured; that the accident was due to defendant’s negligence and to that of the city authorities because of their wrongful act in allowing. the street to be used for coasting. Held, that the complaint did not state a cause of action. That at most it charged the city with neglect in not preventing coasting; and that the city was not bound to prevent it.
    Appeal from judgment dismissing complaint

      Gansevoort De W. Hurlbut (Henry C. Nevitt, of counsel), for app’lt; D. Cady Herrick, for resp’t.
   Learned, P. J.

The complaint alleges the incorporation of defendant It alleges that plaintiff left a horse and sleigh in charge of his son and another in front of an office on Madison avenue in said city.

That while the sleigh stood there a bob-sleigh, on which were several persons, came at great speed down said avenue and collided with the sleigh and broke the same and injured the horse.

That seeing the horse was becoming unmanageable he attempted to hold the horse, and was thereby injured.

He then alleges that such accident was due to the neglect, misconduct, wilfulness and carelessness of defendant.

That it was due to the neglect of_ the city authorities by reason of their wrongful act in permitting such street to be used for coasting purposes.

Upon the trial, and on the plaintiff opening his case, the defendant moved to dismiss on the ground that the facts stated did not constitute a cause of action.

The court so held, and further offered to permit the plaintiff to withdraw a juror and to amend his complaint This plaintiff declined to do. Defendant thereupon entered judgment, and plaintiff appealed.

On the argument some discussion was had as to the liability of a city that through its officers assumes to authorize coasting in the streets, which becomes a nuisance, and by means of which some one is injured. But we think that question does not necessarily arise here.

The allegations which set forth the injury do not show that any one was to blame unless it were the persons who were on the bobsled. They, of course, were neither the defendant nor agents of defendant. So that these allegations do not show that the city did anything.

The first allegation which is intended to connect the city with the accident is that the accident was due to the neglect, misconduct, etc., of the city. But this is not an allegation which connects the city with the accident. This is like a complaint avering that A. injured the plaintiff, and the accident was due to neglect and misconduct of B. Something more must be alleged; some connection between the defendant who is sued for the accident and the accident itself. The defendant is entitled to know how its neglect caused another person to injure the plaintiff.

The next clause is an allegation that the accident occurred by reason of the wrongful act of the city authorities in permitting the street to be used for coasting purposes. Even here there is a want of any averment of an unlawful act done by the city authorities. At the most, the allegation is that the city did not prevent this bob-sled with several persons on it from running into plaintiff’s horse and sleigh. For the allegation that the city permitted the street to be used for coasting purposes bears on the case, under this pleading, only as it shows that the bobsleigh and its crew were coasting, and, therefore, that the city permitted the crew to coast So that the statement, so far as this case is concerned, is simply that the city wrongfully permitted the persons on the bob-sleigh to slide down the hill. That is equivalent to saying that the city did not prevent this act

Row the prevention of fast driving and the like is a part of the police business of the city. And a negligent performance of that business or duty is not a ground for action against the city. Pierce v. New Bedford, 129 Mass., 534; Coonley v. Albany, 10 N. Y. Supp., 512; 32 N. Y. State Rep., 411.

We do not think it necessary to discuss the question whether the city might be liable for an affirmative act, such as authorizing coasting or fast driving. As was said by the court of appeals in Cohen v. Mayor, etc., 113 N. Y., 539; 23 N. Y. State Rep., 509 : “We confine ourselves to the decision of this case.” We take it just as the plaintiff presented* it on his complaint, and we do not inquire what his rights would have been had he amended his complaint, and averred other facts.

In the case last cited, which seems to go far in sustaining the liability of the city, it will be seen that the court based its decision on several elements, viz., that the city, without pretence of authority, and in direct violation of a statute, assumed to grant to a private individual the right to obstruct the public highway, and for such privilege take compensation; then the court said that the city must be regarded as itself maintaining the nuisance. Row it is evident that nothing of this kind is averred in this complaint.

In that case it was said that the owner of the cart had no right to store it on the highway. On the other hand it can hardly be said that one has no right to draw a sled along the street, or, in some circumstances, to slide upon the street. So that the present case does not come within the decision above cited. Unless, therefore, it could be said that from a neglect to prevent injuries committed by one person on another in the streets of the city the city is itself liable, this complaint is insufficient.

Whether some affirmative act of the city, by which it authorized such a use of its streets by fast driving or fast coasting as to be dangerous to travelers, might not be held to be the causing of a nuisance we need not say. No such facts are alleged.

Judgment affirmed, with costs.

Landon and Mayham, JJ., concur.