author: Landon, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. LOUIS WILLETT, Appellant.

      Jurors in a criminal action — when not disqualified by reason of having formed an opinion — Gode of Criminal Procedure, sec. 376 — right to review on appeal challenges to jurors— Gode of Griminal Procedure, sec. 455, subd. 2, 1873, chap. 427 — the burden of proof rests upon the people — a reasonable doubt as to any element of the crime entitles the prisoner to an acquittal.

    Under section 376 of the Code of Criminal Procedure, the previous expression or formation of an opinion or impression as to the guilt or innocence of the accused does not disqualify a person from acting as a furor, provided that he declares on oath that he believes that such opinion or impression will not influence his verdict, and that he believes that he can render an impartial verdict, according to the evidence; it is not necessary that he should declare that he knows that it would not prevent him from so doing, nor need he deny that there was some possible chance that it might.
    The statute does not appear to contemplate a review by the General Term of the decision of tlie court accepting such a juror, when the statutory conditions are found to exist which authorize the court to make it.

      Qumre, as to whether subdivision 2 of section 455 of the Code of Criminal Procedure, modifies chapter 427 of 1873, so that exceptions to challenges for cause can only be heard with respect to the jurors “who participate in the verdict,” and not as to those who were accepted, and then dismissed on the peremptory challenge of the accused.
    The defendant was tried and convicted of the offense of murder in the first degree, for killing one Kelland, hy striking him many blows over the head with a long, heavy brass faucet. Some of the counts in the indictment charged that the defendant committed the crime while engaged in the commission, or in the ■attempt to commit, a larceny, while others charged that he struck the blows with a deliberate and premeditated design to effect the death of Kelland. The nature of the weapon used, the number of the blows and the attendant circumstances were such as to justify the jury in inferring that the killing was done with a deliberate and premeditated design, or while engaged in the commission of a larceny. The defendant testified in his own behalf that he had been insulted and struck by the deceased, and had left the room; that in the hall he saw the faucet, seized it, returned to the room, and, in the heat of passion, struck the deceased; that having no money he took some belonging to the deceased, together with some of his clothes, and ran away, not knowing that he had killed him.
    The court charged in substance that as, from the facts and circumstances which were proved to have attended the killing, the jury might find that it was done with a deliberate and premeditated design to effect the death of Kelland, it was necessary for the prisoner to satisfy them, by a preponderance of the evidence, ■that his statement of the crime was the correct one, and refused to charge that the prisoner was entitled to the benefit of the doubt as to every proposition upon which the jury had to pass, as a matter of fact, which distinguished his offense from intentional premeditated killing, and reduced it to a lesser degree of crime.

      Held, that the court erred in so charging.
    That as the testimony of the defendant was calculated to weaken the evidence produced by the people to show that, at the time of the killing, he intended to commit a larceny, or that he killed the deceased with deliberation and premeditation, he was entitled to an acquittal if his testimony was sufficient, •when taken in connection with that of the people, to create in the minds of the jury a reasonable doubt as to these facts.
    Appeal from a judgment of a Court of Oyer and Terminer, held in Ulster county, in December, 1884, convicting tbe defendant of murder in the first degree.

      William, Lounsbery, for the appellant.

      A. T. Clearwater, district attorney, for the People.
   Landon, J.:

[n procuring the jury thirty of the persons called and examined as to their qualifications as jurors were challenged by the prisoner’s-counsel for cause, and the challenge overruled by the court, and thereupon the prisoner’s counsel challenged them peremptorily, thus exhausting his peremptory challenges. Meantime, eleven jurors had been selected and sworn, who were acceptable to the-people and the prisoner. Then Abram J. Bell was called and examined, and was challenged by the prisoner’s counsel for cause, and the challenge overruled by the court, and he was accepted by the court and sworn and served as the twelfth juror, the prisoner, however, proffering a peremptory challenge as to him, which was not permitted. The prisoner’s counsel now selects the case of Robert J. Merritt, who was one of the jurors as to whom the challenge for cause was overruled, and who was challenged peremptorily by the prisoner, as presenting more clearly than any other case the-grounds upon which error is assigned in overruling the prisoner’s challenge for cause. Mr. Merritt testified upon his examination substantially, that from reading the newspaper accounts and hearing people talk about the case, he had formed and expressed an ojiinion or impression to a certain extent as to the guilt or innocence of the-prisoner, and still retained it. He had not read any statement or report of a judicial examination of the case by the coroner or otherwise. He spoke of his opinion as nothing more than obtained from reading the papers. Assuming from his testimony that it was true that he had formed, expressed and still retained an impression in reference to the guilt or innocence of the prisoner, derived from sources other than an examination of the evidence, the question is, whether he did substantially declare on oath (1) that he believes that such opinion or impression will not influence his verdict, and (2) that he can render an impartial verdict according to the evidence.” (Code Grim. Pro., § 376.) It was necessary, as stated-in The People v. Casey (96 N. Y., 122), for the juror to make-those two declarations on oath in substance.

He was asked: Q. Do you believe that, notwithstanding any previous expression or formation of an opinion, or impression in reference to the guilt or innocence of this defendant by you, or any present opinion or impression in reference thereto, which you may now have, that such opinion or impression will not influence your verdict? A. I don’t think it would. I would try to give a verdict according to the evidence. Q. You believe you could render an impartial verdict according to the evidence, notwithstanding any impression you now have or have had? A. I think I could.

It is plain that these two questions were framed with reference to the statutory requirements. They embraced the whole ground, and the answers of the witness were responsive and substantially full. The cross-examination that followed related to the bias upon his mind, not to his belief in his power to rise above it. He said! there was an opinion on his mind that it would be hard for him to forget, and he was asked: “ Q. Would it influence your mind in the way of a bias ? A. I don’t know that it would. Q. Do you know that it would not? A. I. should not like to say; I don’t think it would.” The statute does not require him to say that he knows he would not be influenced by his previous or present opinion or impression, but simply that he believes he would not be, and that he believes he can render an impartial verdict. He repeated in various ways that he believed he could give a verdict according to the evidence, and that the opinion he had or had had would not influence his verdict. He would not swear that he knew it would not, nor did he deny that there was possibly some chance that it would.

We have no hesitation in saying that this juror, fairly and substantially, perhaps not literally, met the conditions which authorized the court then to decide whether to accept him or not. It was then for the court to declare, by its acceptance or rejection of the juror, whether it was “ satisfied that he does not entertain such a present opinion or impression as would influence his verdict.” (Code OrimPro., § 316.) The court had measured the juror, his candor, his capacity, his real meaning; how far he had been helped or crippled in expressing the real state of his mind by the many questions propounded to him. It does not appear to be contemplated by the statute that we should review that decision if we find that the statutory conditions existed authorizing the trial court to make it.

The learned district attorney urges that, under the Code of Criminal Procedure, exceptions upon challenges for cause can only be heard with respect to the jurors “ who participated in the verdiet.” (See. 455, subd. 2.) That, in this respect, chapter 427, Laws of 1873, which allowed “ all challenges of jurors” to be reviewed, is no longer the law; that the change has been made in view of the fact that the prisoner is accorded thirty opportunities to differ from the court with respect to the fitness of a juror; that this is a reasonable limit as to jurors who do not sit, and makes it proper to confine che review of exceptions to rulings upon challenges to those jurors who do participate in the verdict. We are greatly impressed with the force of this argument, but as we conclude to overrule the exceptions taken upon other grounds, we do not feel it necessary to pass upon it.

Edwin Kelland and Walter Kelland, his brother, kept a saloon in Kingston. The saloon occupied the lower floor of the building. Their sleeping-room was upon the floor immediately above the saloon. The prisoner was a young man between seventeen and eighteen years of age, and had been in their service in and about the saloon for about six weeks before the homicide. His sleeping-room was on the same floor as the deceased’s. The saloon on the night of the 7th of January, 1884, remained open until after midnight. The prisoner retired to his sleeping-room about one o’clock of the morning of the eighth, and Edwin Kelland to his room a few minutes later, taking with him in a segar box upwards of seventy-five dollars in money. No other persons then remained in the building.

The evidence on the part of the people tended to show that shortly after Edwin Kelland retired to his sleeping-room, the prisoner entered it armed with a long, heavy brass faucet — a deadly weapon if used as a club — and struck Kelland over his head many severe blows. The prisoner admitted striking the blows with the faucet. These blows crushed his skull, reduced him to unconsciousness, and caused his death three days later. The prisoner stole the money from the segar box, took the watch and the best clothes of the deceased and fled. He remained at large for several months. The theory of the prosecution was that the prisoner entered the sleeping-room with the intent to steal and killed the deceased while engaged in the commission of or in the attempt to commit the larceny. Several counts of the indictment are framed to meet this aspect of the case. Other counts charge that the ■prisoner, by striking Edwin Kelland heavy blows upon the head with a deadly weapon — the faucet in question — from a deliberate •and premeditated design to effect his death, did kill and murder him. Without reproducing the testimony it is proper to state that, us adduced by the prosecution, it tended strongly to show that larceny was the primary intent of the prisoner, and that the homicide was committed by him while engaged in it.

After the prosecution had rested the prisoner testified in his own behalf that Edwin Kelland, upon entering his sleeping-room, called nut to the prisoner, who thereupon entered the room of Kelland, who then, with much cursing and swearing, falsely accused him of stealing seventy-five cents from his Sunday pants that were hanging ■in the room; that the prisoner denied it and Kelland called him a liar; that the prisoner repeated his denial, and Kelland again called him a liar and pushed and struck him — struck three or four times— hard enough to knock him backwards; that the prisoner, excited, ■angry and hurt, rushed out of the room, and happening to see the brass faucet lying in the hall-way, seized it, and without reflection, rushed back into Kelland’s room and struck him upon the head, knocked him down and stunned him; that then seeing what he had done, and alaimed, and having no money, he stole Kelland’s money, watch and clothes and fled, not knowing whether he had fatally injured him. IJpon this testimony of the prisoner his counsel ■claimed that the crime was not murder in the first degree, in that it lacked the elements of premeditation and deliberation, both of which must be present; and that the homicide was not committed while the prisoner was committing, or attempting to commit, larceny, since the idea of committing larceny did not enter his mind until after the homicide was committed.

The principal question in the case is whether the jury were properly instructed by the court, with respect to the aspects introduced into the case. by the testimony of the prisoner. The court charged the jury : “If you find, as matter of fact, that the instrument of the nature of .this in question was used by the prisoner, upon the head of the deceased, and blow after blow was struck by him on the head of the deceased, so that the skull was substantially crushed in from the use of that kind of instrument, under those circumstances and at that time, the law will permit you to draw as an inference the fact that the man intended the natural and probable-result of his act.”

We find no error in this language to the prejudice of the prisoner. The law does permit the jury to draw the inference from the acts of a man that he intended the natural and probable result of his acts. How strong that inference may be must depend upon circumstances. If only one blow had been struck the inference might not be so strong as if many blows were struck. The-law compels nothing. It only advises the jury to reason with respect to such acts, in that natural manner which human experience assures us leads to correct conclusions, but it does not compel the acceptance of the conclusion unless the mind is convinced. (People v. Stover, 56 N. Y., 315.) The court proceeded in the charge: “ Self-defense is utterly out of this case by the prisoner’s own showing; nothing of that kind appears ; on the contrary, it is-negatived by what I told you is the prisoner’s own statement. Those blows were not struck in self-defense, but, according to his státement, were struck in the heat of passion, on account of blows previously given to him by the deceased.” Every sentence here was true and entirely appropriate.

The court continued : Under those circumstances, where the fact of the killing stands admitted, and where the fact stands admitted that the killing was accomplished by virtue of that instrument which you have seen here, inflicting blows upon the head of the character which has been detailed ; and the rule of Jaw being that from the infliction of such wounds, under those circumstances,, you would be permitted to find, as matter of fact, that they were struck with an intent that the natural and probable result of those blows should follow; and that natural and probable result being death, then it becomes necessary for the prisoner, on his part, to satisfy you, by a preponderance of the evidence in the case, that his statement of this crime is the c.orrect one. Otherwise, you would be able to find from those facts, drawing the inference which the law permits you, that, as I say, the intention was to kill; and you would be permitted, under those circumstances, if it commended itself to your judgment, upon the evidence, to find- that that intent existed sufficiently long before the perpetration to be premeditated and deliberate. I say, under those circumstances, the burden rests-upon the prisoner to bhow to your satisfaction, by a preponderance of the evidence, that his version of this story is the truth.”

Was it necessary, regard being had to the very strong case made by the people, for the prisoner to satisfy the jury, by a preponderance of the evidence in the case, that his statement of this crime was the correct one; or, as the court again stated it, did the burden rest upon the prisoner to show to the satisfaction of the jury, by a preponderance of the evidence, that his version of the story waa true ? Suppose be did show it to the satisfaction of the jury, but not by a preponderance of evidence ?

The court explained what was meant by a preponderance of evidence. “By a preponderance of evidence, of course, I do not mean the number of witnesses, because you have but one living witness to the actual occurrence that took place there that night, and that living witness is the prisoner at the bar. I do not mean that. I mean, taking all the facts and circumstances into consideration which this evidence gives you; taking all the inferences which you are entitled to draw from this evidence, and taking with it the evidence of the prisoner himself for what it may be worth in your judgment— all those facts, all those circumstances, all those inferences, and the testimony of the prisoner himself, are to be considered, and then, under those circumstances, you must say, having found the other facts that I have spoken of, that you are satisfied by a preponderance of the evidence in the case that the prisoner’s version is the correct one.”

The killing was conceded, and that it was unlawful was clear upon the prisoner’s testimony. Under the indictment and the proof on the part of the people in order to find the prisoner guilty of murder in the first degree, it was necessary for the jury to find either that he killed Kelland while engaged in committing or attempting tO' commit a larceny, or from a deliberate and premeditated design to effect his death. The jury had both aspects of the ease presented to their minds. In one aspect, the burden rested upon the people to prove either the commission, or attempt to commit the larceny,, as the felony concurring with the homicide. The effect of the prisoner’s testimony was in no wise directed towards disproving the killing, or the weapon with which it was done, or the repeated blows struck by the weapon. It touched none of these, but went to disprove that part of the people’s case which tended to show that the larceny and tire homicide were concurrent acts. Now, there was no presumption of law arising from the facts presented by the people that the intent to commit’ larceny was prior to the act of killing. The facts, as adduced by the people, tended strongly to show that it was, and the testimony of the prisoner to show that it was not. The testimony of the prisoner tended to weaken a necessary part of the people’s ■case, namely, the prior intent of larceny. He had the right to attack that part of the people’s case by his own testimony, and then urge to the jury that his testimony was not only consistent with that adduced by the people, but explanatory of it, and since the burden always remained upon the people of making good that part ■of their case, he had the right to explain away, if he could, the circumstances that seemed to press hard upon him if unexplained; ■and having given his explanation he then had the right to have the jury instructed that in determining the question whether he committed the homicide while engaged in committing, or attempting to ■commit, a "larceny, the burden rested upon the people ; and whether ■they had made it good or not, could only be determined upon a consideration of all the evidence, including his own, and that upon the whole case he was entitled to the benefit of a reasonable doubt touching this element necessary to constitute murder in the first ■degree. In like manner with reference to the other aspect in which the jury may have found him guilty of murder in the first degree; it was a part of the people’s case to prove that he killed Kelland from a deliberate and premeditated design to effect his death. The fact of the killing, the weapon used, the violence and number of times it was used, and many circumstances adduced by the people, tended strongly to prove both premeditation and ■deliberation. The rule that a man is presumed to contemplate the natural and probable consequences of his own acts — a rule which is but the formal expression of what our experience confirms, a rule which is wise and advisory as to the conclusions reasonable and proper to be drawn, but not a rule rigid and compulsory, enforcing a conclusion as a presumption of law whether the mind of the juror be convinced or not — tended strongly to produce the conviction that the prisoner committed the homicide with deliberate and premeditated design to effect Kelland’s death. But the burden of proof as to this part of the people’s case was never shifted from the people to the prisoner. And the prisoner had the right by his testimony to explain the circumstances and resist the, inferences deducible from the case as made by the people, and to show that his version was not inconsistent with the people’s case, and to urge that his explanation had weakened the force of the inferences which, with the circumstances unexplained, would naturally enough be drawn.

The question was not whether he had established his version of the case by a preponderance of evidence to the satisfaction of the jury, but whether in the light of his explanation, if the jury believed it, the people had made out that part of their case charging him with both premeditation and deliberation in committing the homicide. If upon this point the jury had a reasonable doubt they could not convict of murder in the first degree. It is true that the court immediately following the instruction to the jury, commented upon above, added: “ And right here it is well for me to say to yo.u, gentlemen, that the law not only permits but it directs you, if you have any reasonable doubt upon the evidence in this case, as to the guilt of this prisoner, as he stands indicted, it is your privilege and your duty to give to the prisoner the benefit of that doubt, and to acquit of the higher crime.”

It is to be remarked that this instruction is not specially pointed to a doubt upon the question whether the homicide was deliberate or committed while engaged in the larceny; upon the evidence adduced by the prisoner as well as by the people, it may well have referred to the case made by the people alone. It is doubtful whether the jury could have understood from it that notwithstanding what the court had just instructed them as to the prisoner satisfying them that his version of the case was true, that if that version created a reasonable doubt as to the intent and character of the prisoner’s act, they should give him the benefit of the doubt. Indeed, that the jury were not at liberty so to construe the language of the court seems to be placed beyond question by the subsequent request of the prisoner’s counsel, and the response of the court. His counsel made this request: “ I ask your honor to charge in that connection that the prisoner is entitled to the benefit of the ■doubt in every proposition which the jury pass upon as a matter of fact, which distinguishes his charge from intentional, premeditated killing to a lesser degree of crime.”

The Court — “I won’t charge exactly in that language. I will charge the jury as I think I have already charged, that the fact that the killing being admitted, and the proof being in regard to the killing, the use of this particular instrument and the blows thus administered, the jury would have the right to infer from such use and from the character of the instrument, that the party using them intended the natural result of their use; not that they are bound to as a matter of law, but that they have the right as matter of fact; if they should come to that conclusion and should infer such result was intended, then for the prisoner it rests upon him to satisfy you by a preponderance of evidence that his story is the ■correct one, and that he did not have that intention.”

The prisoner’s counsel stated that he took an exception to the words of the charge, that the burden rests upon the prisoner that his version is the truth.” To which the court remarked: “I say that the burden rests upon the prisoner to show that his version was the true one, if you should come to the conclusion, first, that this killing had been committed with this weapon; if it was a dangerous weapon, and the prisoner intended the natural and necessary result of his act, which was death.”

Counsel — “I ask your honor to charge that the doubt is in the prisoner’s favor on the question whether the prisoner’s version is correct or not.”

The Court — “I won’t alter my charge any in that respect.”

It may well be that the jury convicted the prisoner because they did not believe a word of his version of the homicide; and if it could be seen that such was the case, we should not feel inclined to disturb this conviction. But it was the right of the prisoner to have his testimony so submitted to the jury as to allow them to give to it its proper effect in case they did believe it; or in case, when considered in connection with the whole evidence, it created a reasonable doubt in their minds as to the question whether the homicide was deliberate, or concurrent with another felony; or whether, to use the-words of the court in People v. Conroy (97 N. Y., 75), it was committed under the influence of sudden and (uncontrollable impulse produced by a proximate cause,” and, therefore, less than murder in the first degree.

It is well-settled law that the burden of proof rests upon the people to establish the case charged; that where the crime consists ■of several degrees, this burden exists as to the degree charged, and as to every fact necessary to constitute that degree; and that if, upon the whole evidence, including that of the defense, as well as that of the prosecution, the jury entertain a reasonable doubt of the guilt of the accused, he is entitled to the benefit of that doubt; and this is true with respect to the degree of the crime charged, and with reference to every essential requisite of that degree, and that in all these respects the burden is never shifted from the prosecutor to the prisoner. (Stokes v. People, 53 N. Y., 164; Brotherton v. The People, 75 id., 159; People v. McCann, 16 id., 58; People v. Conroy, 97 id., 62-75 ; People v. Schryver, 42 id., 1.)

In the case of the People v. Schryver, the homicide was admitted and a justification was attempted. It was there held that the prisoner took upon himself the burden of satisfying the jury that his defense was true. The court, however, was careful to discriminate between .an attempt to show that the homicide was manslaughter instead of murder, and an attempt to show that an admitted homicide was justifiable under the statute; thus plainly intimating that where the” degree of the crime is to be established the burden still remains upon the people, but where the act admitted per se establishes the degree, a justification is an afiirmative defense, and may not be accepted unless a reasonable probability of its truth is shown by the defendant, or arises upon the whole case.

But the case of the Stokes v. People, as also the other cases cited, seems to establish the rule that the burden does not rest upon the prisoner to establish, even to a reasonable probability, the truth of an afiirmative defense ; if upon the whole evidence upon both sides a reasonable doubt is created as to the guilt of the prisoner, he is entitled to the benefit of it.

We therefore feel constrained to reverse the conviction and judgment and direct a new trial.

Learned, P. J., and Bookes, •!., concurred.

Judgment and conviction reversed, new trial granted.


source: Caselaw Access Project

author: Landon, J.: Book.es, J.:

license: Public Domain

text:
    In the Matter of the Estate of JACOB H. DEYO, Deceased.

      Decree of surrogate on final account — when it will not he opened to correct am error*

    September 3, 1883, an executor applied to a surrogate to vacate a decree made upon bis final accounting in September, 1874, in order to correct an alleged* error against tbe executor amounting to $380.02.

      B.eld, that considering tbe lapse of time, the smallness of tbe amount involved, and tbe inconclusive character of tbe evidence as to tbe existence of tbe error tbe surrogate properly refused to reopen tbe decree.
    Appeal from an order made by the surrogate of Ulster county, denying an application to have a decree reopened.

      A. T. Clearwater, for Jonathan Deyo, one of the executors, appellant.

      Lewis Hasbrouelc, for John Titus, Jr., one of the executors, and Jacob H. Deyo, a legatee, respondents.
   Landon, J.:

The surrogate made his decree upon final accounting September 9,1814.' This is an appeal from an order made by the surrogate September 3, 1883, nine years afterwards, refusing to vacate the final decree and reopen the settlement to the end that an alleged error against the appealing executor to the amount of $280.02 be corrected. We think the order should be affirmed. The lapse of time, the smallness of the amount, the inconclusive evidence of the existence of the alleged error, convince us that the surrogate wisely exercised his discretion in refusing to reopen the decree.

Order affirmed, with ten dollars costs and printing disbursements»

Book.es, J.:

I concur in this opinion. After the lapse of nine years from the entering of the decree, it should not be opened except upon the clearest evidence of mistake. Such evidence is not, as I think, before us. The presumption in favor of the record is not here answered, save by a suspicion as to its correctness. That will not be*held to be sufficient, even after a brief period of time and muck less when brought forward after a delay greater than that which would bar an ordinary action on account.

Learned, R. J., concurred.

Order affirmed, with ten dollars costs and printing disbursements.


author: Learned, P. J.: Bocees, J.

text:
    JULIA RILEY as Administratrix de bonis non of MARY RILEY, Deceased, Respondent, v. THE ALBANY SAVINGS BANK, Appellant.

      Deposit of money in a savings bank — a party claiming under a special agremient must Twmself comply with its terms — the a/athority of a clerk of the bank to make a special agreement must be proved, — insanity — what facts will not charge a bank with knowledge of the insanity of a depositor — a bank is not chargeable with knowledge of the insanity of the drawer of a check upon it — waiver of notice of demand required by by-laws — election of remedies — a principal who ratifies the act of <m agent cannot thereafter disavow it.

    August 26, 1882, Patrick Flannagan, accompanied by Patrick H. Riley and Margaret Smith, deposited in the defendant’s savings hank $876.75 belonging to Maiy Riley, to her credit, upon the agreement that the money should not be ■withdrawn unless the three were present who made the deposit. The money having been paid to Flannagan during the life of Mary Riley upon the production of the pass-book and Mary Riley’s check, the plaintiff, who was subsequently appointed the administratrix of Mary Riley,
    'rought this action to recover the amount of the deposit, alleging among other facts that the defendant was guilty of culpable negligence in paying the money in the absence of the three persons who were present when the deposit was made. The defendant moved for a nonsuit, upon the ground that no demand had been made by the plaintiff in the presence of the three persons by whom the deposit was made. The motion was denied upon the ground that this agreement was only operative during the lifetime of Mary Riley.

      Held, that the agreement affected the deposit as much after Mary Riley’s death as before, and that the court erred in construing it otherwise.
    TJpon the trial evidence was given tending to show that Toole, the hank clerk, with whom it was claimed the alleged agreement was made, had no authority to receive money except upon the terms and conditions printed in the-pass-book, and that all other and special terms could only he made by the authority of the president of the hank. There was no evidence to show that Toole had ever made any such verbal agreement which had come to the knowledge of the defendant.

      Held, that the defendant was not hound by the agreement so made by Toole. (Bockes, J., dissenting.)

      September 19, 1883, Patrick Flannagan, not fraudulently, but at the suggestion of the overseer of the poor of the city of Albany, who refused to assist Mary Riley after learning that she had this money, procured from the said Mary Riley a check upon the bank, and upon presenting the same thereat, together with the pass-book, and proving the execution of the check by a subscribing witness, he received the amount so deposited. The court found that Mary Riley was of unsound mind at the time the check was signed and incapable of executing the same; that the bank did not know she was insane, but that from the statement made at the time of the deposit, showing her old age and want of education, the circumstances of the deposit and the unusual agreement then made, the bank had notice which should have pul it upon inquiry, and that having failed to make such inquiry the payment should be disallowed.

      Held, that the statements made at the time of the deposit were not such as would raise a suspicion of the insanity of the depositor, and that the court erred in holding that they were sufficient to put the defendant upon inquiry.
    That as the payment was made in good faith, and in the usual course of business, and without notice of the insanity of the depositor, it could not be set aside upon the application of her administrator.
    An executed contract, made in the usual course of -business and founded upon a valuable consideration, cannot be set aside by one of the parties thereto, nor by his representatives after his death, on the ground of his unsoundness of mind, when he has received the benefit stipulated in the contract, and the other party has no notice of his incapacity, and was guilty of no fraud or imposition.
    The by-laws of the bank provided that money could be withdrawn on the third Wednesday in January, April, July and October, one month’s previous notice having been given. A demand for the money had been made by the administrator and payment refused.

      Held, that as it appeared that the president of the bank had stated to the administrator that the money had been paid out, and as the pass-book was in its possession, the right to require the month’s notice must be deemed to have been waived.
    After Riley had been appointed administrator, and in October, 1883, he presented a verified petition to the surrogate, under section 3706 of the Code of Civil Procedure, charging Flannagan with having corruptly procured an order from Mary Riley, knowing her to be insane, and with having withdrawn the money from the bank, and further charging that h® then bad the same in his possession; and praying that he might be directed to surrender the possession thereof to the petitioner. Flannagan having appeared on the return of a citation, and having admitted that he obtained the money from the bank as the proper money of Mary Riley, and that the same was in his possession, a decree was entered directing him to deliver the same to the administratrix; and for his failure to comply therewith he was committed to the county jail where he remained until disharged therefrom by the surrogate, because of his inability, from sickness, to bear longer confinement.

      Held, that the administrator, by claiming in his petition and procuring a decree of the Surrogate’s Court adjudging that the money in JTlannagan’s hands belonged to the estate of Mary Riley, ratified the act of Dlannagan in with, holding the money, and could no longer claim that the bank still owed to him the same money, or bring an action against it to recover the amount of the deposit.
    That the administrator had an election to treat Flannagan’s act in drawing the money in two ways, viz., either to ratify or to disavow it; and that having elected to ratify it, he could not thereafter disavow it. (Bookes, J., dissenting.)
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    On the 26th day of August, 1882, Patrick Flannagan, accompanied by Patrick H. Riley and Margaret Smith, brought to ■defendant’s bank $876.75 which, in fact, belonged to Mary Riley, since deceased, and deposited it to her credit and received the usual pass-book, showing such deposit to her credit. The money was received by defendant in good faith and in the usual course ■of business. The parties making the deposit informed the defendant that Mai’y Riley was an old woman and could not write. It is claimed by plaintiff that at the time of the deposit Toole, the defend- • .ant’s clerk, was informed by one of these three persons that the money should not be withdrawn unless all of those three persons were present. Evidence to that effect was admitted on the trial against defendant’s objection; and evidence to the contrary was given. The learned justice who tried the case found that such was the fact, viz.: that the defendant was informed that the money should not be withdrawn, unless the three were present who made the deposit, and that Toole replied that it was so understood. No such agreement was contained in the pass-book.
    On the 19th of September, 1882, said Patrick Flannagan procured a check, or order, on the bank, dated that day, to be signed by Mary Riley, payable to him or bearer, for the sum of $876.75. This was signed with her mark and witnessed by J. 0. Johnson. On the next day Flannagan presented that check, with the bank book, to the defendant and demanded payment. The signature of the subscribing witness was .identified at defendant’s request, and the defendants thereupon paid Flannagan the money in good faith. It is found by the court that Mary Riley was at that time, from disease and old age, of unsound mind, and did not comprehend the act ■she did.

      Mary Riley soon after died, and letters of administration were issued October 3, 1882, to Patrick H. Riley, one of the three persons above named. On the 7th of October, 1882, Patrick H. Riley, as administrator, presented a petition to the surrogate, stating that he and Flannagan took the money and deposited it in the bank (as above stated), with the agreement that it should remain till the decease or recovery of Mary Riley ; that Flannagan fraudulently and corruptly procured an order on the bank for the payment in full of the sum, and drew the same from the bank,1 that the-petitioner, as administrator, had demanded the money from Flannagan, and that Flannagan witheld the same. The petitioner asked a citation for the discovery of the money, and that Flannagan be ordered to surrender it. A citation was granted and served. Flannagan appeared and in open court admitted that he did, on the 20th of September, 1882, obtain from said bank said $876.75, the proper money of Mary Riley. An order reciting these facts was made October 11, 1882, and therein it was decreed that Flannagan was in possession of said $876.75, and he was adjudged to deliver it forthwith to Patrick H. Riley, administrator. For failing to do thisFlannagan was committed to jail, and was afterwards released therefrom on account of the condition of his health.
    Patrick H. Riley died after the commencement of this action and Julia Riley was appointed administratrix and substituted in his place.
    In the complaint it was alleged that the defendant was especially guilty of culpable negligence in paying the money to Flannagan in the abseuce of all the three persons who were present when the deposit was made, and without their consent.
    After the plaintiff had rested his case, the defendant’s counsel moved for a nonsuit upon the ground that no demand had been made for the money, which complied with the terms of the agreement upon which the plaintiff claimed the deposit was made; that is, that no demand had been made when the three persons who made the deposit were present. The court held that the agreemeut was only operative during the lifetime of Mary Rilev, and that when she died the money could be withdrawn by her administrator, and denied the motion. To which ruling the defendant excepted.
    The learned justice who tried the case decided in her favor, and the defendant appeals.

      L. G. Hun, for the appellant.

      W. H. Guthrie, for the respondent.
   Learned, P. J.:

If there was any conversation at the time of the deposit that the money was to be paid only when Flannagan, Riley and Smith were present, still there is not one word of evidence that this agreement, ■or understanding, was only for the life of Mary Riley. Nor does the learned justice so find. It is mere assumption that her death made any change in that so-called agreement. If Flannagan had no right to draw the money on Mary Riley’s order, unless Patrick H. Riley and Margaret Smith were present, then Patrick H. Riley, ■as her administrator, had no right to demand the money unless the ■others of the three, viz., Flannagan and Smith, were present.

The alleged agreement said nothing as to the person who might draw the money; but only as to the persons who were to be present when it was drawn. And, if any valid agreement of .that land was made, it affected the deposit just as much after Mary Riley’s death as before. So that Patrick H. Riley never made a valid demand.

But, again, the written pass-book, with the regulations therein contained, was the contract between the parties, and the alleged statements to Toole by persons who brought the money did not bind the bank. Toole had no authority to make such a contract as is alleged. No discretionary power was given to him. This is positively proved. But it is found, as a matter of law, by the court that Toole had such apparent power to make the agreement that the bank was bound by its terms. It is true that a principal is bound, not only by the actual authority which he gives an agent, but by such apparent power as the authorized acts of the agent justify third persons in believing him to possess. Now, the authorized acts of Toole were to receive money for the bank from depositors, and to give pass-books therefor. There is no evidence that he had ever made any verbal agreements or promises iu regard to ■deposits, and still less that any such verbal ageements had come to the knowledge of the bank. There was then no evidence of any apparent power in Toole, except his receiving money and giving pass-books therefor and entering the money to the depositor’s credit. How did this authorize him, in appearance even, to make this verbal agreement ? On the contrary, the proof was clear that deposits, on any other terms than those of the rules, could only be made by the authority of Mr. Martin, the president. But agreements must be mutual. Can it be claimed if Mary Biley had called at bank the next day with the book and had demanded her money, that the bank could have refused to pay until those three depositors-were present ? Would not the pass-book be the contract, and the only contract between her and the bank ? Could Mary Biley be deprived of her money if any one of those three persons had refused to be present ?

Indeed, it seems of little consequence whether or not the alleged conversation took place, in regard to the presence of the three persons when the money should be drawn out, for this reason. The money was Mary Biley’s. It was deposited in the bank without her khowledge or consent. She was therefore not a party to any agreement as to the manner of drawing it out. Unless, then, the bank.should insist upon the terms of the alleged conversation, she had a right to draw out the money, and the bank had a right to-pay it, as the bank and Mary Biley might choose. The important question, then, is whether Mary Biley did draw out the money. If she did, it matters not to her representative what were the alleged conditions of deposit.

We come then to the matter of the check, or order, signed by Mary Biley. That this check was signed by her is not disputed. It is further found that it was obtained by Flannagan, not fraudulently, but at the suggestion of the overseer of the poor, who refused to assist Mary Biley, after he learned that she had this money; and that the money was obtained for the purpose of supporting her. In fact, $259 was applied to the expenses of her last sickness and her burial. The learned justice finds as a fact that Mary Biley was of unsound mind and did not comprehend the act; and as law that therefore the check or order was not her act. The court does not find that the bank knew she was insane, or of unsound mind, when it paid the check; but that in the statement of the old age of Mary Biley, the want of education, the circumstances of the deposit and the unusual agreement, the bank should have inquired before paying, and that the bank had notice which should have put it upon inquiry. Now, it should be observed that according to the testimony of plaintiff’s witnesses the bank was notified that the money might be drawn out, because (as they say) it was not to be drawn out except in the presence of the three persons. Therefore, according to plaintiff’s witnesses, the bank was informed that it could be drawn out in the presence of those three, who should be “ satisfied with the draft.” And as it .could be drawn out only on Mary Riley’s check or order, and as they were to be satisfied with it, the plaintiff’s own witnesses showed that the bank, at the time of the deposit, was notified that it might le drawn out on Mary Riley’s check or order. Hence it is plain that no knowledge of her insanity was given to the bank, and no notice of any facts which should cause a suspicion of her insanity. The learned justice says that knowledge of her age, want of education, etc., should have induced the defendants to inquire as to her mental condition. Her want of education, that is her inability to write, known to the bank, would have thrown suspicion on any writing purporting to be her signature. And the bank properly required the identification of the witness to the check. But we do not think that the old age of a depositor, or her want of education, requires a bank, before paying a check, to ascertain affirmatively that the drawer is sane.

An executed contract, made in the usual course of business and founded upon a valuable consideration, cannot be set aside by one of the parties thereto, nor by his representatives after his death, on the ground of his unsoundness of mind, when he has received the benefit stipulated in the contract, and the other party has no notice of his incapacity and was guilty of no fraud or imposition. (Mut. Life Ins. Co. v. Hunt, 79 N. Y., 541, and cases there cited.) The cases are very numerous on this point. We may notice Molton v. Camroux (4 Ex., 17); Elliot v. Ince (7 DeG., M. & G., 475); Beals v. See (10 Penn., 56); Lancaster Bank v. Moore (78 id., 407); Behrens v. McKenzie (23 Iowa, 333).

No other rule would be tolerable. Especially in the case of a bank having numerous (in this case over 14,000) depositor’s. The bank cannot investigate the sanity of a depositor whenever a check is presented. The plaintiffs err in calling the check a forged check. Of course payment on a forged check is no protection to the bank. But payment on the genuine check of an insane person, without notice of the insanity, is a valid payment. (See Howard v. Digby, 2 Cl. & Fin., 634; Drew v. Nunn, L. R., 4 Q. B. Div., 661.)

But, again, there was really no notice to the bank of Mary Riley’s insanity, and no occasion for the bank to inquire. Flannagan, who deposited the money in the first place, and who was himself present at whatever was said at the time of the deposit, was the man who brought the check of Mary Riley to the bank; and who, by indorsing it, vouched for its validity. As is pointed out above, the bank, at the time of the deposit, was in substance in formed that the money might be drawn out; and of course this meant upon Mary Riley’s order. Flannagan then comes, in accordance with this notice, and brings Mary Riley’s check and draws the money. What inquiry should the bank have made? And.we must bear in mind that the degree of inquiry to be made must be proportioned to the circumstances. And that these three persons, if they had desired to prevent the money from being drawn by Mary Riley, could have given such a full and unquestionable notice that the bank would have refused to pay any checks. Plainly enough they did not so intend.

The by-laws of the bank provide that money can be withdrawn on the third Wednesday in January, April, July and October, one month’s previous notice having been given. After the letters of administration had been issued the administrator demanded this money of the bank and the bank refused payment. No reason for the refusal appears to have been given; no previous notice of a month had been given, or is alleged. The learned justice held that, as the bank had unqualifiedly refused to pay, this action was immediately maintainable. It appears that there had been a prior conversation with the president of the bank, in which he stated that the money had been drawn on by Mary Riley; and it appears, also, that the pass-book had been surrendered. We think that these facts are sufficient to show that the bank put its refusal to pay on the previous payment, and may justly be held to have waived the matter of notice.

Still another question remains. As has been stated above, Patrick H. Riley, the administrator, charged Flannagan with having corruptly procured from Mary Riley an order on the bank, and with having, by means of that order, received this money, and with having the same in his possession. These facts were admitted before the surrogate in the proceeding against Flannagan ; that is, he admitted that he obtained from the bank $876.75, the proper money of Mary Riley, deceased, and that he was in possession thereof; and an adjudication to that effect was made. To comjael the delivery he was imprisoned under the surrogate’s mandate, made October 17, 1882, and' was, by the surrogate, discharged November 11, 1883. This proceeding was under section 2706 ■et seq. of the Code. By section 2710, as amended, if the person cited answers in writing that he is the owner of the property, the proceeding must be dismissed. As Flannagan ■did not so answer, the proceeding was conclusive between him and the administrator that the money in his possession ■was Mary Riley’s when Flannagan received it from the bank. If it was Mary Riley’s, then it necessarily follows that the bank had paid Mary Riley what it owed her. If Flannagan had obtained the money by fraud from the bank, then he might be liable to the bank for the fraud. But he could not be liable both to the bank and also to Mary Riley, or her representative. And as her representative had obtained a judicial decision against him, deciding, as between them, that this was Mary Riley’s money, this was plainly a ratification by her representative of Flannagan’s act in obtaining the money. The bank, therefore, could in no event recover back the money from Flannagan; because, whether Flannagan obtained it wrongfully or rightfully, Mary Riley’s representative had chosen to ratify his act by a judicial decision, establishing that the money in his hands belonged to her estate.

If her representive had chosen not to ratify his act, but to treat it (as he now seeks to do), as unauthorized, then he should have done what he is now doing, that is, he should have sued to recover the deposit. He had his election to treat Flannagan’s act in either way, viz., to ratify it or to disavow it. He made his election and ratified it. He now seeks to disavow it.

That the present remedy is inconsistent with the proceedings •■against Flannagan is evident. Those proceedings are just as •effectual as a judgment against Flannagan would have been. And it is plain that this plaintiff cannot consistently have a judgment against the bank for the money and against Flannagan for the game money also. This is not the case of a specific thing which the plaintiff is endeavoring to recover. It is only a debt which the bank either owes or does not owe. And the bank cannot owe it if Flannagan does.

Where there exists an election between inconsistent remedies the party is confined to the remedy which he first prefers and adopts. The remedies are not concurrent, and the choice between them once made, the right to follow the other is forever gone. (Rodermund v. Clark, 46 N. Y., 354; Sanger v. Wood, 3 Johns. Ch., 416; Borell v. Newell, 3 Daly, 233; Scarf v. Jardine, 7 Appeal Cas., 345; Morris v. Rexford, 18 N.Y., 552; Kennedy v. Thorp, 51 id., 174; Bank of Beloit v. Beale, 34 id., 473.) This doctrine has been so frequently decided that a citation of further authorities can hardly be necessary. If the bank had been the bailee of some specific property of Mary Riley, and had wrongfully delivered that to Flannagan,, then it would not be inconsistent for the bailor to seek to recover the specific article from Flannagan, and to sue the bank for the breach of the bailment; because, the wrong done to the bailor by the bank would have been in the wrongful delivering of the article to Flannagan. But the present case is no bailment. The bank was a debtor to Mary Riley. That the bank should pay certain rríoney to Flannagan was no wrong to her. The bank paid its own money, not her’s to Flannagan. Whether the payment to him discharged the debt to her depends on one of two things, first, that he was authorized to receive it at the time; or, second, that she subsequently ratified his act. If she subsequently ratified it, then she elected to hold Flannagan liable as for money received to her use. This is the election of a remedy entirely inconsistent with an action against the bank as being still her debtor.

For these reasons the judgment should be reversed and a new-trial granted, costs to abide the event.

Bocees, J.

(dissenting):

This is an appeal by the defendant from a judgment rendered' after trial had before a justice of this court, without a jury; a trial by jury having been duly waived.

The facts of the ease, as found by the learned judge, are substantially as follows: That on the 26th. day of August, 1882, the plaintiff’s intestate, Mary Riley, was possessed of $876.75, which money was on that day deposited with the defendant to the credit of said intestate by Patrick Flannagan, Patrick H. Riley and Maggie Smith, who took from the defendant the usual pass-book, showing the deposit in the defendant’s bank of that sum; that when the deposit was made said intestate, aged about seventy years, was sick, helpless and of unsound mind, and that the defendant’s teller, who received the deposit, was then' informed that the money was not to be withdrawn unless the three who made the deposit, were present, and that the teller replied that it was so understood ;. that afterwards, and on the twentieth of September, the said Patrick Flannagan procured a check to be signed by the intestate, by her mark witnessed by James C. Johnson, for the amount of the deposit, payable to his, Flannagan’s, order, which check was indorsed by the latter and was by him presented with the pass-book to the defendant’s bank, and the entire amount of the deposit was paid over to him thereon; that said intestate, at the time she so, as aforesaid, executed the cheek, was of unsound mind and did not comprehend the act; that after the death of the intestate, which occurred October 1, 1882, Patrick H. Riley was duly appointed administrator of her estate and immediately took proceedings before the surrogate under section 2706 of the Code of Civil Procedure against Flannagan for the discovery of the assets of the deceased ; that the petition of the administrator, on which the proceedings were instituted, set forth substantially the facts above detailed; that those proceedings resulted in an order made by the surrogate, that Flannagan should pay to the administrator said sum of $876.75, so as aforesaid drawn from the bank by him on the invalid check, and for non-compliance therewith he was imprisoned for a time, when he was discharged because of ill health and his inability to answer the requirements of the order; and that prior to the commencement of the action the administrator exhibited to the defendant his letters of administration, and demanded the amount of the deposit, payment of which was refused by the latter. The administrator, Patrick H. Riley, having died, the present plaintiff was appointed to succeed him. Some other facts were found by the learned judge, hereafter to be noted as occasion may require. As matter of law it was decided that the plaintiff was entitled to recover against the defendant the amount of the deposit, less $259 actually paid from its avails for the intestate’s benefit.

The leading questions in the case are: (1) whether it was understood when the deposit was made by and between the teller or clei’k of the bank and the persons making the deposit that it was not to be withdrawn unless the three persons making it should be present; .(2) whether the intestate, at the time she signed the check by making her mark, was of sound mind and comprehended her act, its purpose and effect; and (3) whether the proceeding before the ¡surrogate, taken by the administrator to discover assets of the deceased, was an adoption of Flannagan’s act in withdrawing the deposit, constituting an election to accept him as debtor which barred an action therefor against the bank.

The first two of these questions were prominent subjects of inquiry on the trial. Much evidence was given pro and eon by the respective parties bearing upon them. The learned judge before whom the case was tried found in favor of the plaintiff on both. "We have looked into the evidence submitted, as we think, carefully, and although the case, on these points, is not free from possible doubt, we are unable to say the conclusion certified to us on the record is not sustained by the proof. Indeed, we are inclined to the opinion that the preponderance of proof is with the plaintiff ■on both of these questions. So it appears to üs on a thoughtful, critical reading of the printed case laid before the court on the .appeal. We must hold those questions of fact 'well found, as stated in the record. There are, however, several important questions of law to be considered in connection with those facts. It is insisted that parol proof of what occurred at the time of making the deposit was inadmissible to show an understanding differing from the printed rules and regulations contained in the pass-book then delivered, which rules and regulations prescribed the terms and conditions to be observed on making deposits and withdrawing ■them from the bank; that such rules and regulations must be deem'ed to express the contract pursuant to which the deposit was made. This proposition is based on the presumption which must prevail in a case where the deposit is made in the ordinary way and the pass-book is accepted by the depositor without any special agreement or condition affecting it. In such case the party accepting the pass-book containing the printed regulations will be held to have notice of them and of their terms and conditions, and will be held to their observance. The same rule applies to bills of lading and receipts given by common carriers containing provisions as to the manner of carrying and delivering the property. Nor in such case can the party object that he omitted to read the regulations contained. in the pass-book, bill of lading or receipt accepted by him on delivering the money or property. The regulations (being accepted) constitute the contract between the-parties, and the case will be controlled by the rules of evidence applicable to agreements in writing signed by the parties to them. The principles of law above stated are supported by numerous decisions, to which we are cited by the learned counsel for the appellant in his brief. But it should be observed that in these cases the party is bound to the conditions and regulations on the legal presumption that he had notice of and accepted them. As said by Judge Church in Appleby v. Erie Co. Savings Bank (62 N. Y., 17), they constitute, if properly communicated and assented to by the depositor, the contract between the parties. So in Allen v. Williamsburgh Savings Bank (69 id., 314) it is laid down that when the bank has prescribed rules to which the depositor has assented, they constitute the agreement between the parties, and .each must conform to them 'to preserve rights against the other. Now, here the depositor did not sign any paper, any instrument containing the conditions of the deposit. So the instrument (calling it such) did not on its face show its acceptance by the depositor, as would an instrument signed by both parties. Its acceptance here must be shown by parol proof, and this even in case the acceptance rested on presumption; for, in that case, proof of the deposit and that it was entered in the pass-book and that the pass-book was taken and carried away by the depositor without objection, would be the evidence on which to base the presumption of an acceptance of the conditions printed in the book. But the parol proof here was part of the res gestm as to the acceptance. It showed that the acceptance of the pass-book with whatever it contained was accompanied by an express understanding, an express agreement, that the deposit should not be withdrawn unless the three persons making it should be present. There was no acceptance of the pass-book, except with this understanding; and if an acceptance be insisted on it must be subject ■ to this provision. The case was not an ordinary transaction between a depositor and the bank, when by a mere deposit of money and the taking and carrying away of a pass-book, without comment, an acceptance of the printed regulations accompanying it would be presumed, to the exclusion of all qualification of them ; the transaction was made special by the stipulated terms of acceptance. Thus the acceptance here proved carried with it the condition insisted on, indeed this became the basis of the acceptance. I am of the opinion that it was competent to show by parol in this case the circumstances attending the acceptance of the pass-book by the depositor. If so, whatever was agreed upon in that regard was admissible and bound the parties. Nor ■can it be maintained that the defendant’s teller or clerk could not bind the bank by the arrangement here insisted on, on the ground that he acted in excess of his power. He was authorized to receive deposits. He had the apparent right to make' the arrangement. In so doing he was acting within the scope of his employment. The rule is that an agent may bind his principal within the limits of the authority with which he has been apparently clothed with respect to the subject-matter. The question is not what power was intended to be given or was really given to the agent, but what power a third person who dealt with him had the right to infer he possessed from his own acts and those of his principal. So it has been often held that, as respects third persons, the act of an agent, even in abuse or excess of his authority, if within the general scope' of his employment, is binding upon his principal. I am of the opinion that the conclusion of the learned judge, certified to us, to the effect that the deposit being made under the agreement that it ■could not b.e withdrawn unless by the persons making it, was here operative and binding upon the bank as a condition of the deposit; and it follows, as a consequence, that the payment to Flannagan constituted no defense to the action, taken in connection with the fact that the intestate was, at the time she signed the check for the withdrawal of the deposit, of unsound mind and incapable of comprehending her act in so doing. It is urged that no sufficient demand upon the bank for the money was made, before suit, to put the defendant in default in that regard, there seems to have been a ■demand by her administrator after the decease of the intestate and his own appointment, and an absolute, unqualified refusal by the bank to pay. The refusal to pay was not put on the ground that the three persons who made the deposit wore not present to sanction the payment, but seems to have been put on the ground that payment had already been made to Flannagan. But the refusal was absolute and unconditional. This being so, the action was at once maintainable against the objection that no sufficient demand for payment had been made.

It is further urged that the proceedings before the surrogate, taken by the administrator to discover assets of the deceased, ■operated as an adoption of Flannagan’s act in withdrawing the deposit and constituted an election to accept him as debtor, whereby the action against the bank was barred. I think this position untenable. The proceeding was not to charge Flannagan as a debtor. Such is not the purpose of the law under which the proceeding was taken (sec. 2706, et seq.); the object to be attained by the law is the discovery of money or property belonging to the estate of the deceased which ought to be included in the inventory ; not to enforce payment of debts due from debtors of the deceased; there was here consequently no election of remedies. As was said in Matter of Curry (25 Hun, 322), the surrogate, under the provisions of law above cited, can only deal with the question of possession and can only decree that the possession be delivered to the representative of the deceased party, where it clearly appears that such possession is withheld without claim of title or right. Again, the doctrine of election of remedies applies in case of inconsistent remedies, when there is an intention, express or implied, that one shall be a substitute for the other; to be more exact in terms, when a party has the choice of two rights to each of which he has equal right, but both of which he cannot have. Such was not this case. The suit against the bank and the proceeding before the surrogate to discover assets were in no respect inconsistent one with the •other.

Nor was there any intent to ratify the act of Flannagan, and to accept him as sole debtor. This is apparent from the facts set forth in the petition to the surrogate. His wrongful possession was •charged, not that he was simply a debtor to the estate. Indeed, the question, whether he was or was not debtor to the estate was not, as has been before stated, within the provision of the law under which the proceeding was taken. In conclusion I am of the opinion that the judgment directed by the learned judge in favor of the plaintiff should be affirmed.

Landon, J., concluded, after much examination, to concur with Learned, P. J.

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


author: Learned, P. J.:

text:
    LESLIE C. WEAD, as General Guardian, etc., of CARRIE J. HORTON, and CARRIE J. HORTON, by LESLIE C. WEAD, her Guardian ad Litem, Appellants, v. WILLIAM P. CANTWELL, as Surviving Executor, etc., of ADALINE W. HORTON, Deceased, and THE FIRST CONGREGATIONAL SOCIETY OF THE TOWN OF MALONE, Respondents.

      Action for the judicial construction of a will — when it should not be brought by a legatee, devisee or cestui que trust — when the guardian of an infant should not join as a plaintiff in such action — costs of an action brought by the gua/rdian and . the infant cestui que trust — direction for their payment.

    A devisee, legatee or cestui que trust should not he allowed to bring an action to procure a judicial construction of a will, where the rights of the devisee, legatee or cestui que trust are clear and not disputed by the executor, and the provisions of the will requiring construction are only to take effect upon the happening of contingent events, which may never occur, and may affect persons not yet in being.
    The general guardian of .an infant, entitled under a will to receive during the infant’s life the rents and profits of a trust fund created by the will, should not be joined with the infant as a party plaintiff in an action brought to obtain a judicial construction of the will, as he has no interest in the matter.
    In an action brought by an infant cestui que trust and her guardian to obtain a construction of a will, the court sustained a demurrer interposed to the complaint, and directed the costs and an extra allowance to be paid out of the income of the trust fund.

      Held, that this direction was, possibly, contrary to the statute (1B. S., m. p. 780, § 68), and certainly unjust.
    That the costs should be paid by the plaintiffs, the guardian ad litem being responsible for the amount thereof.

      Appeal from a judgment, entered upon an order sustaining demurrers interposed to the complaint, and from an order granting an extra allowance.

      Leslie W. Russell, for the appellants.

      W. P. Cantwell, executor, in person, and Joseph R. Flcmders, for the executor, respondent.

      Gilbert <& Kellas, for the Congregational Society, respondent.
   Learned, P. J.:

Actions to construe wills are sustained on the ground that there is some trust to be performed; and that therefore the trustees are entitled to the direction of the court in the discharge of their duties. As executors have a quasi trust as to personal property, they are entitled to similar direction from the court. The trustees or executors may apply for such construction and advice themselves ; or the eestui que trust may apply.' And hence the legatee or distributee, as such eestui que trust. (Wager v. Wager, 89 N. Y., 161.)

But while the court has jurisdiction of this class of actions, instituted by a legatee or an executor, it does not follow that it would be proper in every case for a legatee to bring such an action. A will may be so simple as to require no construction. Or the executor and all parties interested may agree in its meaning. Clearly, in such cases, it would be improper to sustain an action of this kind. Or, while some parts of the will might be doubtful, it would be improper for a legatee, whose rights were clear and were not disputed by the executors, to bring an action for the construction of the will. (Chipman v. Montgomery, 63 N. Y., 230.)

The present action is brought by an infant, Carrie J. Horton, and her general guardian. They ask the construction of the will of her mother.

After the first and second clauses, which provide for payment of debts, for a legacy to the husband and for care of cemetery lots, the third clause gives all the rest of testator’s property to the executors in trust to receive the rents and profits during the life of Carrie, and during her minority to apply the same, or so much as may be necessary, to her support, maintenance and education; and after her minority to pay over to her from time to time said rents and profits.

The fourth clause gives the whole of the property, after Carrie’s death, to her children, in equal proportions, if she shall die leaving issue, and if all her children shall then be living or if none of her children shall have died leaving issue at the time of umy ” death. If any of her children or descendants shall have died leaving issue, such issue to take the share which the parent would have taken by the will if living at the time of “ my ” death. It will strike any one immediately that the word my in each case is probably a clei’ical error’ for her. And so, at the proper time, it will probably be considered.

The fifth clause directs that in case Carrie should die without issue, the executors are immediately to sell and dispose of all the property. Five thousand dollars is to be held by them in trust as a perpetual fund for the poor of Malone village.

The sixth clause gives the residue, alter deducting said $5,000, to the First Congregational Society of Malone.

The seventh clause gives a power to the executors at any time to sell and dispose of real estate, and the eighth appoints executors. A codicil gives the income of $5,000 for life to the husband. The husband is dead.

The complaint avers that the will and codicil are doubtful and uncertain ; that various clauses are in derogation of the statutes; that the validity of the third and fourth sections is in doubt; that the fifth section is of doubtful construction ; that the sixth section conveys more than three-fourths of the estate of the testatrix.

The complaint does not aver that there is any doubt or disagreement between Carrie and the executors as to their duty under the trust created for her life. It does not aver that they have refused to apply as much of the income as is necessary to her support, etc., or even that they have not applied the whole thereof to these purposes.

The plaintiffs’ counsel urges that as the executors, during Carrie’s minority, are to apply only enough of the income as is necessary to support and educate her, a question arises what they are to do with the excess. It is not averred that there is any excess, or that the executors have not spent the whole income on Carrie’s support. Further, this is the ordinary form of a trust, viz.: to apply the rents and profits to the use of a person. (Moore v. Hegeman, 72 N. Y., 376.) It was never supposed that such a trust required, in ease of a minor, the expenditure of more than was needed. The executors do not claim that Carrie is not entitled to the whole of the income. They make not the least denial of her right. Any •surplus will come to her in possession on her arriving at full age, whether there be accumulation directed or not. (Pray v. Hegeman, 92 N. Y., 508; Barbour v. De Forest, 95 id., 13.) There is no direction that the surplus, if any, shall be turned into capital. We see no disagreement between the executors and Carrie and no uncertainty as to the provisions of the trust, which should justify this action by Carrie.

The plaintiffs’ counsel again urges that there is doubt as to the fourth clause; insisting that by the use of the words “ my death ” ■the testatrix limited the gift to Carrie’s children to the case of seeing them before her death. We do not think it best to ■do more than refer to the probability that these words are .an error for her death.”. But, at any rate, the meaning of that clause is not one in which this plaintiff Carrie is interested. That clause disposes only of the remainder after Carrie’s death. Whether the remainder goes to one person or another is nothing to her. Furthermore, the persons to whom the remain - der will go are not now in existence. And it is very undesirable that the court should decide on a question where the interested parties are not before it. There is no present duty for the executors under that clause. Difficulties should not be anticipated. If Carrie should leave children living at her death, no question will •arise as to the words my death.” Again, plaintiff’s counsel urges that the fifth clause, or so much as gives property in trust for the poor of Malone, is void. Yery possibly. But the condition on which that bequest is given may never arise. If it should arise that will be after Carrie’s trust estate shall have ceased. So, too, it is urged that as to one-half of the bequest to the Congregational •Society, it is void under chapter 369, Laws 1860. Admitting that to be true, it cannot, at this time, be determined whether the one-half of the remainder in the estate, after the trust for Carrie’s life, will prove, at her death, to be undisposed of or not. If she shall leave children living at her death, then clauses fifth and sixth do not take effect. Probably the same is true if she shall leave descendants. At any rate it will not be until her death that it will be certain whether or not by the terms of the will, without regard to the statute, the legacy in the fifth clause takes effect. If it should then take effect according to the terms of the will, and it should beheld, as against the Congregational Society, that that society could take only one-half, that question could be raised by the heirs and next of kin of the testatrix. If such heirs and next of kin are those who would be such at the time when the legacy was to take effect; then Carrie is not interested. If, on the other hand, Carrie, as now the heir and next of kin, claims to own the one-half of the remainder, after her trust life estate, on the ground of the invalidity of the contingent legacy to the Congregational Society, and in case she should die without descendants, still there is no need for any construction of the will as to her. Because in no event will the-executors have any duty to discharge towards her. And whether, if she should die without descendants, the one-half of the legacy to the Congregational Society should go to her legatee or grantee, or to the remoter relatives of the testatrix, is a matter which need not now be determined. The language of the court in Wager v. Wager (ut supra), shows that the action to construe a will is sustained where it is necessary to control or guide the action of a trustee. No such control or guidance is now needed. None as to this sixth clause ever will be, except on a contingency; and not then if the interested parties agree.

There are allegations in the complaint that doubt exists as to the fifth and sixth clauses. But there are no allegations that the-executors claim one view and that the plaintiffs claim another. And, on the argument of the case, it appears that the executors do-not assert the validity of clause fifth, nor the validity of the sixth as to one-half. No disagreement appears as to the first and second clauses; and we understand that none exists. There are no allegations in the complaint of facts on which doubt could arise under the thii-d clause; and we see no difficulty which needs construction.. If any question shall arise under the fourth clause as to the words “my death” (which seems to us improbable), that can be settled when the parties in interest shall be in existence. At present we -think that the plaintiff Carrie shows in this complaint no occasion to ask a construction of the will.

We have not been able to see any ground why the guardian of Carrie should join as plaintiff. He has no interest in the matter. As an infant she should bring her action by her guardian ad litem, as she has done. She has no estate in the trust but only the right to enforce it. Her guardian has nothing to do with the matter. We think the demurrer properly sustained.

The learned justice before whom the cause was tried gave the •defendants’ costs, to be paid by the executor out of the income and .profits of the real and personal property held by him in trust for the plaintiff Carrie. This seems to us unjust and, perhaps, contrary to the statute. (1 R. S., m. p. 730, § 63.) The costs of a •successful action to construe the will might properly come out of the estate, but even then rather out of the body of the estate than •out of the income specially appropriated. The action being unsuccessful, costs should be paid by the plaintiffs. The guardian ad litem being responsible for costs recovered against the infant plaintiff. (Code, § 469.) We think the extra allowance was properly granted.

With the modification above indicated the judgment should be affirmed, with costs; not, however, on the ground of want of jurisdiction.

Present — Learned, P. J., Bookes and Landon, JJ.

Judgment modified by requiring costs to be paid by plaintiffs, and •as modified affirmed, with costs.


author: Bocees, J. :

text:
    In the Matter of the Application of the WATER COMMISSIONERS OF AMSTERDAM, Appellants, to Acquire Certain Rights in Lands of JOHN C. CHALMERS and GERTRUDE CHALMERS, Respondents. SAME v. COLLINS.

      Goals — when a pa/rty does not waive his right to appeal from an order, by accepting coats thereby awarded to him.

    Upon the application of the water commissioners of Amsterdam to acquire title to land an order was made at a Special Term allowing them to amend their petition. By an independent provision contained in the order ten dollars-costs of the motion were awarded to the respondents, landowners, who had resisted the application, not as a condition to the granting of the motion, but absolutely: The landowners having accepted the ten dollars costs which were tendered to them, appealed from the order.

      Meld, that under the circumstances of this case the landowners did not, by accepting the costs, waive their right to appeal.
    The doctrine of waiver only applies in those cases where the appellant has attempted to enforce the order in his favor, or some part thereof connected with or dependent upon such other part as he seeks to avoid by his appeal,, or in which he has accepted a benefit having such connection or dependency.
    Motion to dismiss an appeal.

      M. L. Stover, for the appellants.

      P. J. Lewis, for the respondents.
   Bocees, J. :

An order was granted herein, at Special Term, on the application of the commissioners, giving them leave to amend their petition, and by an independent provision therein ten dollars’ costs of motion were awarded to the respondents, landowners who resisted the application ■— not as a condition to the granting of the motion, but absolutely. The ten dollars’ costs were tendered to, and were accepted by, the appellants, after which they took an appeal from the order. A motion is now made to dismiss the appeal on the ground that the acceptance of such costs operated as a waiver of the right to appeal.

It is unquestionably the general rule that a party cannot take the benefits of an order and at the same time have an appeal therefrom. (Platz v. City of Cohoes, 8 Abb. N. C., 392.) This rule invariably applies when the benefits or advantages of the order are conditional, as in the case cited, or are connected with, or are made in some manner dependent upon, other provisions to which objection is urged by the appeal. Such is the doctrine of the cases cited by the respondents’ counsel. (Bennett v. Van Syckel, 18 N. Y., 481; Knapp v. Brown, 45 id., 207; Genet v. Davenport, 59 id., 648; Murphy v. Spaulding, 46 id., 556.)

So, to make the acceptance of a benefit under an order operate as a waiver of the right of appeal, there must be an inconsistency in retaining such benefit and at the same time appealing from the order. (Knapp v. Brown, supra; Benkhard v. Babcock, 27 How., 391.)

The true rule seems to be that laid down in Wait’s Practice. (4 Wait’s Prac., 216.) That this doctrine of waiver is to be applied in those cases only where the appellant has attempted to enforce the order in his favor, or some part thereof connected with or dependent upon such other part, as he seeks to avoid by his appeal or has accepted a benefit having such connection or dependency.

Now, in the case in hand, the provision in the order awarding costs is entirely independent of, and has no connection whatever with, that part of it challenged by the appeal. There is no inconsistency in taking the costs awarded by the order, and yet insisting upon the impropriety of the other independent provisions.

But this case is peculiar in another view of it. The appellants were entitled to the costs awarded to them in any event; and would be entitled to them even in case the order appealed from should be reversed, for in the latter case the order of reversal would, according to the settled practice, give (1) the costs of appeal (2) ten dollars’ costs of motion below. It is these latter costs only whiph have been accepted by the appellants,

Thus it is seen that the acceptance of the costs in this case and the prosecution of the appeal are not at all inconsistent.

The motion to dismiss the appeal should be denied.

■ This conclusion disposes, also, of a like motion in the case of the Water Commissioners v. Collins et al., Landowners.

Present— Learned, P. J., Bookes and Landon, JJ.

- Motion to dismiss denied.