text:
    The People ex rel. The Standard Gaslight Co., App’lt, v. Thomas F. Gilroy, Com’r, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    Gas companies — Statutes.
    The rights conferred on the Standard Gaslight Company by Laws 1886, chap. 248, to lay anains through and under all streets in New York city,' in consideration of a reduction in the price of gas, was not taken away by Laws 1890, chap. 566, as amended by Laws 1892, chap. 687, which repeals the act of 1886, but provides that it “shall not affect or impair any act done, or right accruing, accrued, or acquired * * * by virtue of any law so repealed,” and consent of the municipal-authorities is not necessary.
    Appeal from a final order entered at special term overruling a demurrer interposed by relator to a return filed by the respondent to an alternative writ of mandamus.

      Almon Goodwin, for app’lt; T. Connoly, for resp’t.
   Van Brunt, P. J.

This is an appeal by the Standard Gaslight Company, relator, from a final order, entered at special term, overruling a demurrer interposed by said relator to a return filed by the respondent to an alternative writ of mandamus. The allegations of the alternative writ of mandamus, so far as they are material to the decision below and to the present appeal, are as follows : That the respondent is commissioner of public works of this city, with the power of granting permits for opening public streets in the city of New York for the purpose of laying gas mains and conductors ; that the Standard Gaslight Company, the relator, is a corporation organized about the month of February, 1886, under the general gaslight act, passed February 16, 1848, and acts amendatory thereto, and is now engaged in the manufacture and distribution of gas to its customers; that after the incorporation of the relator there was passed- chapter 248 of the Laws of 1886, entitled “ An act to facilitate the supply of illuminating gas in the city of New York at a reasonable price,” by which, among other things, the Standard Gaslight Company was authorized and empowered to lay conductors and mains for conducting gas in the streets, etc., of this city, and, as a consideration therefor, that the said gas company should file in the office of the comptroller of the city of New York a stipulation that the gas should have an illuminating power of twenty-five candles, and that its price should not exceed $1.50 per 1,000 feet; that thereafter a stipulation was duly filed by relator, and that relator is now furnishing large quantities of gas for the public lamps of the city of New York at the reduced price fixed by the act, being some twenty per cent less than the price paid by the city to other gas companies, except the Equitable Gaslight Company. Various allegations of the alternative writ show that the company has expended a large sum of money in the purchase of real estate, gas works, street mains, meters, and other necessary appliances, of which the cost in all, up to March 31, 1892, was $3,699,710.39. That on the 4th of June, 1892, requests were made to respondent for permits to open the streets to lay a 20-inch main on the north side of Thirteenth street, commencing at the termination of its present main on the west side of Seventh avenue, and running to the west side of Ninth avenue; and also-for permits to enable the company to lay two 10-inch mains on Tenth avenue, commencing at its present main on the north side of Thirteenth street, and running to the north side of Eighth street; and for permits to open the necessary streets for laying a continuation of its 12-inch main on the north side of Fortieth street, from the west side of Sixth avenue to the west side of Ninth avenue, there to connect with the main already laid in that ' avenue; the laying of said new mains being necessary to complete the unfinished work, and to make connections between mains theretofore laid by the same company. The alternative writ further alleges the refusal of respondent to grant the permits; that the fact of the refusal prevents any further extension of the business of the relator. And the alternative writ further alleges that-the rights, etc., granted to relator by chapter 248 of the Laws of 1886, have not been taken away or impaired by any act of the legislature of this state, but have been expressly reserved and confirmed to relator by chapter 566 of the Laws of 1890, and § 36 of chapter 687 of the Laws of 1892. The alternative writ then contains the usual direction to respondent.

To this alternative writ a return was duly filed, alleging, among other .things, that under the terms of chap. 37 of the Laws of 1848, the act under which relator was incorporated, all gaslight companies in the cities of this state could only lay their mains and conductors in streets and highways of said city with the consent of the municipal authorities, and under such reasonable rules and regulations as said municipal authorities should prescribe, and not otherwise; that relator has not obtained the consent of the municipal authorities of this city for the laying of the mains and conductors mentioned in the alternative writ herein, in the streets for the opening of which requests were made to respondent, as alleged in the thirteenth paragraph of the alternative writ; that chap. 248 of the Laws' of 1886. which was the act giving to relator its special privileges, was repealed by chap. 566 of the Laws of 1890, which took effect May 1, 1891, and that by virtue of such repeal relator lost all the rights and privileges granted to it by chap. 248 of the Laws of 1886, and that the same ceased and determined on such day, except as the same had already been exercised by relator in the portions of the city of New York in which streets and portions of streets had already been occupied by the mains and conductors of relator; that the relator did not, on the 1st of May, 1891, nor at any time prior thereto, occupy, with its mains, etc., any portion of the street or streets in the alternative writ herein alleged, but that said streets were then and are now outside of the territory and portions of the city of New York occupied by the plant, mains, conductors, etc., of relator; that respondent has not refused, and does not now refuse, permission to relator to open any portions of the streets for the work of connection, maintenance and repair, occupied by the said mains or conductors of relator on the 1st day of May, 1891, but that respondent has refused and does still refuse, to grant any permit to extend the conductors or mains of relator into any street or parts of streets not occupied by the conductors or mains of relator on said-1st day of May, 1891; that the refusal of respondent to grant permits for further extensions is based on the repeal of chap. 248 of the Laws of 1886, as aforesaid, and upon the want of consent of the municipal authorities to relator to make further extensions. Respondent, therefore, denies that the rights, privileges etc., of relator have been abridged or taken away, but alleges that all its rights and privileges, except as to territory occupied by it on the 1st day of May, 1891, ceased and determined on said date. To this return of respondent the relator interposed a demurrer upon the ground that the same was insufficient in law upon the face thereof. Thereafter, upon a hearing at special term, the demurrer interposed by the relator to the return of the respondent was overruled, and the alternative writ of mandamus dismissed.

The question presented, therefore, upon this appeal is, does the relator require the consent of the municipal authorities of this city to lay its mains, conductors, etc ? This question is to be determined by the interpretation which is to be given to chapter 566 of the Laws of 1890, as amended by chapter 617 of the Laws of 1892. It is claimed upon the part of the respondent that all the rights and privileges which were conferred upon the appellant by chapter 248 of the Laws of 1886 were repealed by the said acts of 1890 and 1892. But by | 161 of the act of 1890, which immediately follows the repealing clause contained in that act, it is provided that “ the repeal of a law, or any part of it, specified in the annexed' schedule shall not affect or impair any act done, or right accruing, accrued, or acquired, or liability, penalty, forfeiture or punishment incurred prior to May first, eighteen hundred and ninety-two, under or by virtue of any law so repealed, but the same may be asserted, enforced, prosecuted or inflicted as fully and to the same extent as if such law had not been repealed.” And it is urged upon the part of the appellant that the right to do the work which it was proposed to do had accrued prior to the passage of the act of 1890, and that, therefore, it came within the saving clause of § 161. It appears upon an examination of chapter 248 of the Laws of 1886 that power and authority was given to the appellant to lay conductors and mains for conducting gas through and under all the streets, avenues, and squares and public places of said city, and that as a consideration therefor the company should tile in the office of the comptroller of said city a stipulation or agreement that all the gas supplied through such conductors and mains should have a certain illuminating power, and that no greater price or charge for supplying the same should be asked or received by the company than at the rate of $1.50 per 1,000 feet; and that all gas supplied by said company for any of the public buildings or offices of the corporation of said city situated on the line or lines of the conductors and mains’of said company should be furnished at a rate not to exceed $1.25 per 1,000 cubit feet; and that said company should supply gas to the public lamps situated on such line or lines, when required by said city of New York, at a maximum rate not to exceed $12.50 per annum for each lamp. These provisions of the statute were complied with by the appellant, and it is now furnishing large quan-. tities of gas for the public lamps of the city at the reduced price fixed by-the act, being some twenty per cent less than the price paid by the city to other gas companies, except the Equitable Gas Company. It was in consideration of this reduction in the price of gas that the right was conferred upon the Standard Gaslight Company to lay conductors and mains through and under all the streets, avenues, squares, and public places of said city.

They, therefore, by the acts done, had acquired the right to lay these mains, under the act of 1886. It was a matter of contract between the People and this gas company; and rights thus acquired it was the evident intention of § 161 of the act of 1890 to leave unmolested. The claim that it “is perfectly possible to harmonize the repealing clause and the saving clause by holding that the intention was that no act done, right accrued, or liability incurred by the Standard Gaslight Company prior to the repeal should be affected thereby, but that since such repeal the company, in the transaction of its business, comes within the provisions of the general gaslight act as embodied in the transportation corporations law,” is certainly not saving to the appellant any right which it had secured by reason of the special privileges conferred upon it by the act of 1886, in consideration of concessions which it made in respect to the furnishing of gas to the public at large and to the municipality. It would be a curious anomaly in the law if concessions made in view of rights conferred could be insisted upon, and a large portion of the rights taken away. It seems to us, therefore, in view of the character of the legislation by which the rights enjoyed by the appellant were conferred upon it, and the express reservation of vested rights by § 161 of chapter 566 of the Laws of 1890, that there was no intention upon the part of the legislature to interfere with the powers which had been conferred of a character such as those enjoyed by the appellant. The construction claimed by the respondent would strip the appellant of a very large portion of the powers conferred upon it, and which w.ere the inducement for the stipulation in respect to the price of furnishing gas which the appellant entered into. Under these circumstances it does not seem to us that the provisions of the general act, in respect to the consent of the municipal authorities, were intended to apply to rights vested as those of the appellant were. It is undoubtedly true that the commissioners of public works have, under the provisions even of the act of 1886, certain regulating and controlling powers over the opening of the streets and the conduct of this work; but we do not understand that the refusal to grant the permit asked for by the appellant was based upon any such power, but simply because the appellant had no right to open any street without the consent of the municipal authorities, and that, without the consent of the municipal authorities of the city, other than the commissioner .of public works, he has no authority to grant the permit asked for. We being of the opinion that this additional limitation was not intended to apply to the rights which had accrued to the appellant, it follows that the writ of mandamus should have issued as prayed for by the appellant. The order should be reversed, with costs, and the demurrer sustained, and the peremptory writ issued, unless the respondent desires to withdraw demurrer and traverse the alternative writ, which he may do upon payment of costs.

O’Brien and Follett, JJ., concur.


source: Caselaw Access Project

author: Andrews, Ch. J.

license: Public Domain

text:
    James W. Cooke et al., App’lts, v. The Underhill Manufacturing Co., Resp’t.

      (Court of Appeals,

      Filed April 11, 1893.)

    Sale — Acceptance—New trial.
    In an action brought to recover for the purchase price of an engine it appeared that there had been no acceptance by defendant of the engine up to November 28, when defendant notified the plaintiff to remove it as "not being satisfactory, and defendant continued to use it thereafter. One of the plaint! iffs testified that on November 30th he informed JR., the secretary of defendant, that plaintiffs’ man had adjusted the valve and it would be advisable to suspend the notice of November 28 until it had been tried, and that R. consented to it. R. denied having any such interview. Reid, that this raised an issue of fact which should have been submitted to the jury or found by the court as to whether the notice of November 28 had been suspended, or whether the continued use of the engine was the consequence of an implied understanding between the parties that it was there upon trial, and as the evidence in respect to this question of fact was capable of opposing inferences, the general term had jurisdiction to grant a new trial.
    Appeal from judgment of the supreme court, general term, first department, reversing judgment for plaintiffs entered upon the verdict of a jury and granting new trial.

      Charles Duane Baker, for app’lts; James Dunne, for resp't.

       Affirming 32 St. Rep., 548.

   Andrews, Ch. J.

The defendant appealed to the general term from the judgment entered upon the verdict of the j ary for the plaintiffs and from the order denying a motion for a new trial on the minutes. The general term reversed the judgment and ordered a new trial. The order of reversal does not show whether the reversal was upon the law, or facts, or both. From the order granting a new trial the plaintiffs appeal to this court. Under the settled rule, therefore, if there was any material fact controverted on the trial, it was in the power of the general term to grant a new trial, in order that there should be a re-examination of the case by another jury, and to sustain the order of reversal the court will assume that the new trial was granted on the facts, in the absence of a statement in the order of reversal that the verdict was upon questions of law only. Harris v. Burdett, 73 N. Y., 136.

In looking into the record it appears that the only question submitted to the jury was ■ whether there was an implied acceptance of the engine by the defendant after the 30th day of November, 1887, by the continued use of the engine until the following February, under the circumstances disclosed by the evidence.

The trial judge during the progress of the trial made several rulings favorable to the defendant, to which, so far as appears by the record, no exception was taken by the plaintiffs. But as the exceptions of the party who obtained the verdict would not necessarily appear in the case, these rulings may have been excepted to by the plaintiffs. However the fact may have been, we think the plaintiffs cannot avail themselves here of any alleged errors in rulings adverse to them, made on the trial, although they related to questions which should have been ruled in favor of the plaintiffs, and even although they were conclusive of their right to recover in the action.

This court cannot say that this court did not acquiesce in the law upon these questions as laid down by the trial judge. If they desire to review these rulings they should have gone, back under the order for a new trial and raised the questions on the retrial, and, if defeated there, present them on an appeal from the judgment.

It must, therefore, on this appeal be considered as the law of the case, as ruled by the trial judge, (1) that there bad been no acceptance by the defendant of the engine up to the 28th day of November, 1887, when the defendant notified the plaintiffs in writing to remove it, on the ground that it was not satisfactory; (2) that its right to reject the engine within a reasonable time, if for any reason it was not satisfactory, was absolute under the contract of sale; and (3) that under the circumstances the continued use of the engine. by the defendant, after it gave the notice of November 28, 1887, was not an acceptance of the engine, if no new circumstances intervened changing the situation.

One of the plaintiffs, Mr. Cooke, testified that on the afternoon of November 30, 1887, he had an interview with Mr. Reilly, the secretary of the defendant company, in which he informed Reilly that the plaintiffs had sent a man the day before to make some adjustment of the valve of the engine, and that he thought it would be advisable to suspend the notice of November 28th until the engine had been tried with the valve as altered, and that Mr. Reilly consented to it. Mr. Reilly, on the part of the defendant, testified in substance that he had no such interview with the plaintiff on the day testified to by Mr. Cooke, or at any subsequent time with reference to the engine, and that he had no recollection of ever having seen the plaintiffs or any representative of theirs with respect to the engine. The interview testified to by Mr. Cooke, if it took place, could not, as the circumstances show, have occurred prior to November 30th.

If the fact whether 'the interview took place was material on the' question of the acceptance of the engine, the fact depended upon controverted evidence. It was regarded as material by the trial judge. He had instructed the jury in his main charge that if by agreement of the parties the notice of November 28, 1887, was suspended, then it became the duty of the defendant to give notice within a reasonable time after trying the new adjustment, after its rejection of the engine, and that a failure to do so might be considered by the jury on the question of acceptance.

And after the conclusion of his main charge he charged, on the request of the defendant’s counsel, that if the alleged interview of November 30, 1887, did not occur, “there was no such acceptance of the engine; there was a rejection November 30th.”

The general term, as appears from the opinion, reversed the judgment on the ground that there was no evidence from which the jury were authorized to find that there had been an implied acceptance of the engine by the defendant after November 80, 1887, and the correspondence of the parties in the subsequent February and other circumstances are referred to in its opinion in support of this view.

But assuming, but without deciding the question, that the evidence did not conclusively establish that there had been no waiver of the notice of November 28th, and no acceptance of the engine after that time, nevertheless the circumstances raised at least an issue of fact, which should either have been submitted to the jury or found by the court, whether the notice of November 28th had been suspended, or if it had been suspended, whether the continued use of the engine by the defendant and its omission to give any further notice, until February, was the consequence of an implied understanding between the parties that up to that time the engine was on trial, and the right of final decision as to its acceptance was suspended. Upon this question of fact, the evidence in respect of which was capable of opposing inferences, the general term had jurisdiction to grant a new trial. This is decisive of this appeal. Snebley v. Conner, 78 N. Y., 218.

The order should be affirmed, and judgment absolute ordered for defendant, with costs in all courts.

All concur.


author: Per Curiam.

text:
    Silvia Livingston, Resp’t, v. The Metropolitan Elevated Railway Co. et al., App’lts. Julia Livingston, Resp’t, v. The Metropolitan Elevated Railway Co. et al., App’lts. Morgan L. Livingston et al., Resp’ts, v. The Metropolitan Elevated Railway Co. et al., App’lts.

      (Court of Appeals,

      Filed April 11, 1893.)

    1. Railboad — Elevated—Value of easements.
    The easements, if any, appurtenant to lots of land and taken for the use of an elevated railroad, aside from any damage to said lands from the taking, have in themselves only a nominal value, and a referee errs in refusing to so find.
    3. Same — Benefits.
    In estimating and fixing the sum which defendants may pay to obviate the injunction, the special benefits resulting from the defendants’ railroad to the premises in suit should be offset against any consequential damages resulting to the lot and building from the appropriation or interference with the easements in the plaintiffs’ street and appurtenant thereto by the maintenance and operation of defendants’ railroad in front thereof.
    Appeals from judgments of the New York superior court, general term, affirming judgments in favor of plaintiffs, entered upon report of referee.

      Brainard Tolles, for app’lts; George L. Rives, for resp’ts.

       Reversing 44 St. Rep., 830, 832.

   Per Curiam.

The referee in these cases was requested to find that the easements, if any, appurtenant to said lots of land and taken for the said railway uses, aside from any damage to said land from the taking, have in themselves only a nominal value. This finding he refused to make. He was also requested to find, as one of his conclusions of law, that in estimating and fixing the sum which the defendants may pay to obviate the injunction herein, the special benefits resulting from the defendants’ railroad to the premises in suit should be offset against, any consequential damages resulting to said lot and building from the appropriation or interference with the easements in West Broadway and appurtenant thereto by the maintenance and operation of defendants’ said railroad in front thereof. This rule of law he refused to lay down. In both these refusals the referee erred, and the plaintiffs’ counsel very properly admits the error. This court has several times so decided, the latest decisions having been given in the cases of Bookman, Sutro and Sperb, against these same defendants.

The counsel for the plaintiffs seeks to render the errors harmless by attempting to show that in fact there were no benefits resulting to, lots from the defendants’ railroad and therefore, however erroneous the referee’s ruling may have been, such error was abstract in its nature and caused no harm to defendants. Plaintiffs’ counsel maintains that the referee found as a fact that there were no benefits. This, we think, is a mistake. The referee found that by reason of the construction of the railroad opposite these lots the plaintiff in each case sustained damage to a certain amount in the loss of rentals and in a certain amount in the depreciation of the permanent value of the lots. But as he refused to hold that the easements in and of themselves were of no value, and refused to hold that the special benefits resulting to the land should be deducted or offset against the consequential damages thereto, his finding as to the amount of permanent depreciation is equivalent to a finding that such permanent depreciation was exclusive of the special benefits. He does say what the permanent depreciation was, but he also refuses to hold that special benefits should be deducted therefrom. This cannot be said to be a finding that there were no benefits.

The learned counsel also says there was no evidence upon which a finding could be based that any benefits in fact arose from the construction of the railroad.

When it is admitted that the referee erred in his refusals to find certain conclusions of fact and law which prima facie were material to the issues in the cases, the onus rests upon the plaintiffs herein to show that the errors were harmless. This duty we think the plaintiffs have failed to fulfil. The case is not so wholly barren of evidence upon the subject of benefits that we can say a finding of their existence would have nothing to support it. There is evidence upon which the referee might have found that some benefits had accrued to these lots by reason of the construction of the road, and when we see that the referee adopted-a rule of law which excluded from his consideration the existence of such benefits as a factor in arriving at the real damage, it is not an answer to the demand for a reversal of the judgment to show that the evidence was so conflicting that the referee would have been justified in finding as a fact that there were no benefits.

The defendants are entitled to the judgment of the trial court, jury or referee upon that question, and when the tribunal to pass upon the fact refuses to consider it because of an erroneous rule of law adopted in such cases, we must reverse the judgment where there was any evidence of the existence of benefits upon which a judgment might rest. In these cases there was such evidence, and for that reason the judgment must be reversed and

new trial granted, with costs to abide the event

All concur, except Gray, J., not voting.


author: Earl, J.

text:
    William B. Duncan, Jr., Resp’t, v. The New York Mutual Insurance Co., App’lt.

      (Court of Appeals,

      Filed April 11, 1893.)

    1. Insurance (Marine) — Cancellation.
    Where a policy of marine insurance is cancelled by the parties thereto, the insurer retaining the premium up to the date of cancellation, but returning a pro rata-premium for the unexpired term, and it is afterwards ascertained that the vessel was lost prior to said date, a fact of which both parties were ignorant, the insurer is liable for the insurance less the rebate.

      2. Same — Laches—Appeal.
    The vessel was lost in November, 1888, proofs of loss were furnished April 8, 1890, and plaintiff did not offer to repay the amount received by him as rebate of premium until Hay, 1890. No defense based upon the delay was alleged in the answer or raised on the trial. Eeld, that defendant cannot now insist upon the alleged laches as a defense.
    Appeal from judgment of the New York superior court, general term, modifying and affirming a judgment in favor of plaintiff after a trial at the equity term of the court, setting aside the cancellation of a policy of marine insurance and awarding him $6,009.96 damages on the policy.

      J. Langdon Ward, for app’lt; Everett P. Wheeler, for resp’t.

       Affirming 46 St. Rep., 241.

   Earl, J.

The policy of insurance in this case was contemporaneous with the policy issued upon the same vessel which was under consideration in the case of Duncan v. China Mutual Insurance Co., 129 N. Y., 237; 41 St. Rep., 368. The two policies were quite similar and the questions of law and fact involved in the two cases were nearly the same, except the facts growing out of the cancellation of the policy in this case, which will now be stated. It was agreed in this policy that the defendant would “ return pro rata premium for every thirty days of unexpired time if the policy be canceled on arrival.” The policy, by its terms, was to run and cover the vessel from August 8, 1888, at noon, until August 3, 1889, at noon. The vessel sailed from New York for Aux Cayes, in Hayti, November 22,1888. On the 28th day of November it was arranged between the plaintiff and the Banana Steamship Company, then owning the vessel, that the policies which were then held upon the vessel should be canceled at and from noon of the 3d day of December, 1888, and that new policies should be procured to take effect at that time.

Pursuant to that arrangement the plaintiff applied to the defendant to cancel the policy in question at and from December 3d, and to return pro rata premium for the unexpired time, eight months, amounting to the sum of $233.33, and the defendant agreed so to cancel the policy, and acccordingly wrote across the face thereof the following: “Canceled at request of insured, R. P., for eight months December 3, 1888. T. B. B., Jr., Pt.,” and also indorsed on the policy the following: “Pay $233.33 return premium, and cancel policy. December 3, 1888. T. B. B., Jr., Pt.” And the defendant paid to the plaintiff the amount of the return premium. At the time of the application for the cancellation of the policy the plaintiff supposed that the vessel had arrived at the port of Aux Cayes, and the defendant at that time was ignorant whether or not she had reached that port, and did not in accepting the proposition to cancel the policy consider whether or not she had reached the port. From the time of the sailing of the vessel from New York to the 3d day of December no information had been received by either party as to her arrival or non-arrival at the port of destination,and at that time it was not possible that such information could be received, as there was no telegraphic communication between this country and that island, and neither party then had any knowledge of the safety or loss of the vessel. The ordinary length of a voyage from New York to Aux Caves for such a vessel was seven days. The vessel never reached her port of destination. No traces of her were ever seen or found, and she became a total loss during a violent hurricane prior to the 3d day of December.

The claim of the defendant is that it was absolved from any liability upon its policy because of the cancellation thereof on the 3d day of December. To this claim we think there are three satisfactory answers:

(1) The cancellation of the policy looked to the future and not to the past. It was the pro rata unearned premium which was returned. The parties did not bargain for the entire destruction of the policy, as the defendant kept the premium for the first four months. That was its indemnity for the risk it took during that time, and the policy was canceled only for the remaining eight months. The cancellation was not intended to reach back and absolve the defendant from any liability which it had already incurred. If, therefore, we assume, as claimed by the defendant, that the cancellation was valid and binding upon both parties, we do not think that it exempted the defendant from liability for the loss which occurred during the four months when the policy was in force.

(2) At the time of this cancellation the loss had occurred, and the defendant was under an absolute obligation to pay the $5,000 incurred. If the parties had known of the loss, and had Come together and formally agreed, by an oral or written agreement, not under seal, that the defendant should be absolved from liability by the payment of the sum of $233.33, it would not have been discharged from liability for the balance. An absolute, undisputed liability to pay $5,000 could not be discharged by the simple payment of $233.33. Bunge v. Koop, 48 N. Y., 225; Coe v. Hobby, 72 id., 141; Smith v. Kerr, 108 id., 31; 13 St. Rep., 115.

The fact that the discharge was given by mistake cannot give it greater effect, or place the defendant in a better position than it would occupy if the discharge had been properly given with knowledge of all the facts. The plaintiff could have recovered the balance of the $5,000 upon either of these two grounds in an action at law, without setting aside the cancellation written upon the policy, and as this judgment is for the precise sum to which the plaintiff would have been entitled in an action at law, it should not be reversed because the plaintiff also asked for equitable relief.

(3) The plaintiff in his complaint alleged all the facts and prayed for relief that the cancellation of the policy should be rescinded and set aside, and that he should recover $5,000, less the sum of $233.33, returned to him for the unearned premium. The trial court found, what was absolutely true, that the cancellation was made by mistake. The insured could demand the return of unearned premium only upon the arrival of the steamship at her destination, and it was only upon her arrival that the defendant was bound to make the cancellation and return the premium. Both parties manifestly supposed on the 3d day of December, that the vessel had reached her destination. Both parties were mistaken as to that fact, and both were ignorant of the loss of the vessel prior to that time. So it is entirely clear that the cancellation was made under a mistake of fact.

It was at least made under a mistake of fact by the plaintiff, and, therefore, upon the return of the money paid to him he was entitled, under familiar principles of" law, to have the cancellation rescinded. The learned counsel for the defendant claims that we decided something in conflict with these views in Dambmann v. Schulting, 75 N. Y., 55, and Whittemore v. Farrington, 76 id., 457. In the former case we held that ignorance of a fact extrinsic and not essential to a contract, but which, if known, might have influenced the action of a party to the contract, is not such a mistake as will authorize equitable relief; that as to such facts the party must rely upon his own vigilance, and that if not imposed upon or defrauded he will be held to his contract. Here the essential facts in reference to which the parties were mistaken were not extrinsic, but they were intrinsic and essential to the contract of cancellation, and were involved therein. The parties were dealing with the policy which both supposed to be in force covering the risk insured on the 3d day of December, with premiums which both parties believed were unearned, in reference to a vessel which both parties believed to be in existence. As to all of these facts they were mistaken. The vessel was lost. The policy had matured, and all the premiums had been earned.

Without commenting upon the case of Whittemore v. Farrington, it is sufficient to say of it that a discriminating examination of it shows that it is not an authority for the defendant in this case. Upon the facts appearing in this record, we see no .reason to doubt that the court had the power to relieve the plaintiff from the mistake alleged.

The vessel was lost in November, 1888. The proofs of loss were furnished April 8, 1889, and the plaintiff did not offer to repay the $233.33 until May, 1890, and the defendant now claims that by retaining this sum so long the plaintiff was guilty of laches and so ratified the cancellation, and that he was not entitled thereafter to have it rescinded. There is no explanation contained in this record of this long delay. We may assume that it was explainable in such a manner as not to prejudice the plaintiff’s right of recovery in this action, as no defense based upon that delay was alleged in the answer, nor in any way alluded to or insisted upon at the trial, and there is no finding of fact or of law in reference thereto. All that we have in the record on this subject is that the money was paid to the plaintiff, and was not tendered to the defendant until May, 1890. Upon such a state of the record, it is manifest that the defendant cannot now insist upon the alleged laches as a defense. If the point had been made in the answer, or upon the trial, it is possible that the delay would have been explained.

There are no other exceptions in the record requiring attention, and the judgment should be affirmed, with costs.

All concur.


text:
    M. Le Frone Merriman, Resp’t, v. The Keystone Mutual Benefit Association, App’lt.

      (Court of Appeals,

      Filed April 11, 1893.)

    1. Benefit societies — Requirement of notice of mortuary assessments.
    A notice of assessment mailed to a member of a mutual benefit insurance association stated that unless the amount of the assessment was paid within thirty days from tue date of the notice, the policy would be forfeited. The notice did not reach the assured until two days after the thirty days had elapsed, and defendant refused to accept the offered assessment and declared the policy forfeited. The policy did not state that the mortality assessments should become due immediately when made, nor when they should become due. Reid, that plaintiff could recover; that if the defendant used the mails to convey not'ce, it takes the risk that the notice shall reach the policyholder. He must have notice, and cannot have notice if it fails to reach him without his fault.
    2. Same — Laws 1877, chap. 321.
    Chapter 321 of the Laws of 1877, specifying the kind of notice which will render a policy vo d in case of non-payment, has reference only to policies where premiums or interest become payable only at stated times, and does not apply where the mortality assessments required to be made are uncertain in amount and time of payment, and by the terms of said policy can only become due after notice and demand.
    3. Same.
    The act may have application to an annual payment provided for in the policy.
    Appeal from judgment of the supreme court, general term, fifth department, affirming judgment entered upon report of a referee in favor of plaintiff.

      George T. Spencer, for app’lt; Daniel L. Benton, for resp’t.

       Affirming 44 St. Rep., 797.

   Earl, J.

On the 26th day of February, 1881, the defendant issued a policy of insurance to Seth H. Merriman, by which, in consideration of certain payments to be made by him, it promised to pay him, nine years from the date thereof, the sum of $1,000, or if he died before the expiration of that time, then it promised to pay the same sum to his personal representatives or assigns ninety days after his death. By the terms of the policy he was to pay, and did pay, at the time it was issued, the sum of $9.35, and he was to pay $6.25 annually after the date of the policy for the next succeeding four years ; and thereafter, during the remainder of the nine years, he was to pay annually the sum of $3.25. He was also to pay mortality assessments according to the charter and by-laws of the association, and the terms stipulated in the application upon which the insurance was based. He made all the payments according to his policy which became due prior to the 1st day of February, 1888. Prior to the 2d day of January, 1888, Richard W. Pascoe, who held a policy issued by the defendant, died, and an assessment was made to pay the amount due under his policy. Merriman’s assessment therefor was $1.98, and on the 2d day of January the defendant caused a notice to be mailed to him, of which the following is a copy:

“ Allentown, Pa., Jan. 2, 1888.
“ Mr. S. H. Merriman, Hornellsville, N. T.:
•‘You are hereby informed of the death of Capt Eichard W. Pascoe, of South Easton, Penna., who has been a member of the association under policy No. 1189, and died of exhaustion. The witnesses to the proof of death are Dr. John J. Detwiller, H. A. Sage and Z. Taylor, all of Easton, Pa.
“ You are hereby required to remit to this office by draft, postal order or check, if made in any other way it is at risk of the sender, or pay to our authorized collecting agent your pro rata mortality assessment $1.98 on policy No. 2705, which includes the amount stipulated in your application for collection, within thirty days from the date of notice, otherwise your policy will be forfeited. •
“ A. R. Horne, Secretary."

By some default or accident of the mail this notice did not reach Merriman until the 7th day of February, and on the next day he sent his check to the defendant to pay the amount of his assessment, which it refused to receive, and it declared the policy forfeited because the assessment was not paid' on the 1st day of February, as required by the notice. Thereafter, although Merriman tendered all the payments that fell due upon the policy during the-nine years, it refused to receive them or to recognize the existence of the policy. After the policy had, by its terms, matured, Merriman assigned his claim under it to the plaintiff, and he brought this action to recover the amount due under the policy, and has succeeded in the courts below.

The sole contention of the defendant now is that the policy was forfeited because the assessment of $1.98 was not paid on the first day of February, as required by the notice. ^Neither the charter, the by-laws, nor the application upon which the policy was based,, were put in evidence, and we are not informed as to their contents. The rights of these parties, therefore, are to be determined by the language used in the policy and the law applicable thereto. The only condition in the policy which is now pertinent is the following: “If any annual dues or mortality assessments on this policy shall not be paid when due, the consideration of this contract shall be held and deemed to have failed, and this policy shall be null and void, and the only evidence of payment shall be the receipt of the association signed by the president or secretary.” The policy does not state that the mortality assessments shall become due immediately when made, nor when they shall be due. The policyholders must be notified of them,and payment required before it can be said that they are due. As the policy is to become null and void for the non-payment of assessments, it is obvious that the policyholder must be put in default before such a serious consequence to him can follow from his non-payment; and the only way that he can be legally put in default is by notice and demand, and an opportunity to pay after an assessment has been made. He cannot be said to have neglected payment of an assessment of which he liad no knowledge. There is no provision in the policy that a policyholder may be notified' of an assessment by mail; but it is a reasonable rule to apply to the situation, that such notice may be given by mail. If the service of the notice he questioned in any case, it would be sufficient for the company to show that it had mailed the notice, and in the absence of countervailing proof it would be presumed that the notice reached the policyholder to whom it was addressed. But if the defendant uses .the mail to convey notice, it takes the risk that the notice shall reach the policyholder. He must have notice, and he cannot have notice if it fails to reach him without his fault. Here the proof is undisputed that this notice did not reach Merriman until the 7th day of February, and he at once, on the next day, complied with the notice. Under such circumstances it cannot be said that there was any default on his part, or any ground for declaring the policy forfeited, if we consider the rights of the parties as they are regulated by the language contained in the policy.

But the defendant claims some advantage from the act, chapter 321 of the Laws of 1877, which provides that “ no life insurance company doing business in the state of Hew York shall have power to declare forfeited or lapsed any policy hereafter issued or renewed by reason of non-payment of any annual premium or interest, or any portion thereof, except as hereinafter provided. Whenever any premium or interest due upon any such policy shall remain unpaid when due, a written or printed notice stating the amount of such premium or interest due on such policy, the place where said premium or interest shall be paid, and the person to whom the same is payable, shall be duly addressed and mailed to the person whose life is assured, * * at his or her last known post-office address, postage paid by the company, or by an agent of such company, or person appointed by it to collect such premium; such notice shall further state that unless the said premium or interest then due shall be paid to the company, or to a duly appointed agent or other person authorized to collect such premium, within thirty days after the mailing of such notice, the said policy and all payments thereon will become forfeited and void.” The defendant claims that this act is applicable to this policy, and that the notice served by it was sufficient under the act to authorize it upon non-compliance therewith by Merriman to declare the policy forfeited. We do not think that the act is applicable to such a situation as this. It clearly has reference only to policies where premiums or interest become payable only at stated times," and the purpose of the act is to require the insurers to give the notice so that the policyholder may not lose the benefit of the policy by forgetfulness or misapprehension as to the time of the stated payments. The mortality assessments required to be made under this policy are uncertain in amount and time of payment, and by the terms of the policy they can only become due after notice and demand, and hence they are not within the purpose of the act. These mortality assessments are in no proper sense premium or interest payments. There is in this policy an annual premium payment provided for and to such annual payments the act may have application. But to these small mortality assessments which may be made at any time, the act is not, either in its letter or spirit, applicable.

We are, therefore, of opinion that this very unjust defense to this action should not prevail, and that the judgment should be affirmed, with costs.

All concur.


text:
    Paul N. Spofford et al., Individually and as Ex’rs, Pl’ffs, v. Pauline S. Pearsall et al., Resp’ts.

      (Court of Appeals,

      Filed April 11, 1893.)

    Contract — Construction.
    In a controversy concerning the final settlement of executors and trustees’ accounts, a compromise agreement by all the parties provided that the appellant pay to trustees of his sister’s share out of the income which will become due him to date under his mothei ’s will, and out of his share of his brother’s estate, a certain sum to equalize any inequality in the distribution of the estate already effected, and that no claim should be made by any of the parties for arrears of income or interest upon any of the trust funds created by testators’ wills, and that appellant's share under his brother's will be placed in trust to make the agreed payments The estate had been depleted by the acts and negligence of the executors, and by the agreement they were to resign, and admitted that they had received their part of the estate. There was no provision in the will for interest to be paid to appellant, and no fund established by his mother’s will that had earned any income for him. Held, that the true meaning of the agreement was that appellant pay to his sister the specified sum out of his share-in his brother's estate, and out of income which should accrue to him on the trust fund given him by his mother’s will up to the date of the payment of the debt.
    Appeal by Joseph L. Spofford, from the judgment of the supreme court, general term, first department, affirming a judgment entered on the report of a referee, in an action for an accounting of the executors of the estate of Paul Spofford.
    The question on this appeal relates to the true construction of the sixth article in the agreement of settlement made between the parties June 6, 1891. When the agreement was signed by the appellant, Joseph L. Spofford, the suit for the accounting had been on trial before the referee for a year or more, and a large mass óf evidenee had been taken. It was brought by Paul N. Spofford and the appellant, Joseph L. Spofford, individually and as surviving executors of Paul Spofford, for an, accounting by them as such executors, and for a final settlement of the estate. All the parties in interest were made defendants, viz: the surviving children of Paul Spofford (other than the plaintiffs), the representatives of deceased children and the executors of the estate of Susan Spofford, the widow of Paul Spofford. Paul Spofford left, a large real and personal estate. He died in 1869, and by his will constituted his three sons, Paul N., Joseph L. and Gardiner S., together with his wife, Susan Spofford, executors and trustees.
    By his will he created six trust funds of $50,000 each, one for the benefit of each of his six children for life, with limitations over. He gave to his wife a life estate in one-fourth part of his residuary estate, with power to appoint and transfer the corpus of the share to any of his children during her life, or by her will. The remaining three fourths of his residuary estate he gave in shares of one-sixth part each, one to each of six children. The share of his son Paul hi. he gave to him absolutely. The shares of the four other sons he gave in trust, with power to each to withdraw his share at a certain age, and the share of the daughter was also given in trust, with a limited power of withdrawal.
    Susan Spofford, the widow, died in 1886. She had qualified as executrix of her husband's will, with her three sons. She left an individual estate of about $50,000. By her will she constituted two trust funds of $150,000 each, one for the benefit of her son, GardinerS., during life, with limitations over, and one for the benefit of her son, Joseph L. (appellant), of similar character. The will provided that the income from the respective funds, after paying taxes and other proper charges thereout, should be applied to the use of the beneficiaries respectively. The two trusts were created by separate clauses in the will, and each clause contains this provision: “I will and direct that the bequest of one hundred and fifty thousand dollars, above made by this second article of my will, shall bear interest from my death at the rate of seven per cent per annum, which interest from the time of my death up to the making up or creation of the trust fund, or the portions thereof, from time to time made up or created, being paid from my general estate, shall be applied and disposed of in like manner as if it had been income accrued from the trust fund, after the making up and investment of the same.”
    The testatrix, in a subsequent clause of her will, referring to the power of appointment given to her in the will of her husband, declared: “ In case my own property shall not suffice to meet and pay in full the two bequests of one hundred and fifty' thousand dollars each, bearing interest from my death, in trust for the benefit of my sons Joseph and Gardiner respectively, as provided by the second and third articles of this my will, I will, appoint, devise, bequeath and direct that there shall be taken and appropriated from the said one-fourth share of the residue of my husband’s estate, over which I have the power of appointment aforesaid, such amount thereof as shall be equal to such deficiency of my own estate to meet and pay the said two bequests of one hundred and fifty thousand dollars each, with the interest thereon as aforesaid.”
    The testatrix appointed the remainder of the said one-fourth share of her husband’s estate among each, of her four children, one of the shares being appointed in trust for her son Joseph on the same trusts and with the same limitations as were provided in the trust of $150,000 before mentioned. She also devised her individual residuary estate in the same way, the share of Joseph being placed in trust, as in the other cases.
    Gardiner S. Spofford died intestate January 22, 1887, leaving issue surviving. Eugene W. Spofford, also one of the sons of Paul Spofford, died August 23,1887, without issue, and leaving a will giving to his brother Joseph L. one-third of his residuary estate.

      Eecurring now to the proceedings on the accounting of the executors of the estate of Paul Spofford, in this action, prior to the agreement of settlement of June 6, 1891, and the situation at that time, it may be stated in general terms that it had been shown that the three sons, Paul H., Joseph L. and Gardiner, and the widow,. Susan Spofford, the executors of Paul Spofford, immediately upon his death in 1869, took possession of his estate. The sons used the assets in discharging the obligations of the testator and in their own private business. They drew large sums on account of their interest as legatees under the will, and much larger amounts in the aggregate than they paid to their two younger brothers, or their sister, on account of their shares, which were equal with those of their brothers, the executors. The appellant, Joseph L. Spofford, drew the sum of $177,166.66, and his brothers, Paul H. and Gardiner, still greater sums. Eugene W. Spofford received only $31,972.20, Edward Clarence Spofford $62,290.66, and the sister Pauline $83,097.91; but she was chargeable with an advancement made in the lifetime of her father of $50,000.
    The referee found that in addition to the cash sums above mentioned, the three sons, Paul H., Joseph L. and Gardiner, were chargeable with large sums belonging to the estate, which were applied by them to their individual use and benefit, but that accurate accounts were not kept, and that it is not now practicable to ascertain precisely to what extent moneys of the estate were so applied and used. He further found that the accounts presented showed that the three sons were indébted to the estate in the sum of $486,421.93. Ho inventory of the estate was ever filed.
    On the accounting it was claimed by the other parties in interest that Paul H.", Joseph L. and Gardiner Spofford had withdrawn their whole interest in the residuary estate oí Paul Spofford, their father, and were entitled to nothing in the distribution. It was also claimed that Susan Spofford had during her lifetime exercised the power of appointment given her by the will of Paul Spofford, and had transferred the whole of the one-fourth part of the residuary estate, or had so dealt with the estate in her lifetime as to deprive her of the power to dispose of the one-fourth part of his estate by her will, and that, therefore, the provisions in her will creating the trust funds of $150,000 each for the benefit of her sons, Gardiner and Joseph L., out of the estate of her husband could not be enforced, and that neither Joseph L. nor the representatives of Gardiner were entitled to have any appropriation made out of his estate for either the principal or interest of their trusts. There was the further contention that the sons, Paul H.r Joseph L. and Gardiner, had received much more than the other children out of the estate, although the shares were equal. These, contentions were disputed by Paul H. and Joseph L. Spofford, the appellant, and by the representatives of Gardiner S.
    The estate of Paul Spofford, under the control of the executors and trustees at the time of the accounting, consisted almost wholly of real property in the city of New York. Up to the time of the execution of the agreement of settlement of June 6, 1891, none of the trusts created by the will of Paul Spofford, or of Susan Spofford, had ever been established by the setting apart of funds from either estate. The material articles in the agreement of settlement of June 6, 1891, are as follows :
    “ 2. The plaintiffs shall make no opposition' to the contention on the part of the subscribing defendants that the shares of Joseph L. Spofford and Gardiner S. Spofford in the residuary estate of the said Paul Spofford have been already fully withdrawn by them, and that Paul Ñ. Spofford has already received his share of said residuary estate.
    “ 3. The plaintiffs will co-operate with the subscribing defendants in effecting a compromise 'with Adelaide T. Spofford and her guardian, so that instead of the full amount of the trust fund of $150,000 and interest, mentioned in the will of Susan Spofford, being paid to her or her guardian, such amount shall be reduced to $50,000. If this compromise, or a compromise satisfactory to the subscribing parties, cannot be effected, this agreement shall be inoperative and of no effect
    “ 4. The foregoing provisions of this agreement being complied with, the subscribing defendants will not oppose the contention of the plaintiffs that the sum of $150,000, which by the will of Susan Spofford is made a trust fund, the income of which is to be applied for the benefit of Joseph L. Spofford during his lifetime, shall be directed by the judgment herein to be paid over to his trustee, and be invested and held as directed by said will.

      “ 6. Out of the amount of the income which will become due to him to date under the will of Susan Spofford and out of his share of the estate of Eugene Spofford, Joseph L. Spofford will pay to the trustees of the share, the income of which is payable to Mrs. Pearsall for life under the will of Paul Spofford, the sum of $75,000 for the purpose of equalizing to her and to her children any inequality in the distribution of the estate already effected. •

      “ 12. Ho claim shall be made by any of the parties to this suit for arrears of income or interest upon any of the trust funds created by any of the wills .mentioned in the complaint.
    “ 13. For the purpose of securing full payment of all moneys which may become due and payable from Joseph L. Spofford under this agreement, Joseph L. Spofford will forthwith execute a conveyance of all his interest under the will of Eugene W. Spofford to Thomas T. Sherman in trust, who shall be authorized out of any moneys received by him under such conveyance to make, and who shall make out of such moneys all payments herein agreed to be made by Joseph L. Spofford; the surplus after such payments are made shall be returned to Joseph L. Spofford.”
    On the settlement of the judgment the appellant, Joseph L. Spofford, claimed that under the stipulation he was entitled to a -direction that the sum of $53,025, the amount of interest at seven per cent on. $150,000 from the time of the death of Susan Spofford, should be paid out of the estate of Paul Spofford, and applied toward the payment of $75,000 to be made to his sister, Mrs. Pearsall, under the sixth article of the stipulation. The referee denied the claim of the appellant. Appeal was taken to the general term, which affirmed the ruling of the referee, and from the judgment of affirmance this appeal is taken.
    Other facts are referred to in the opinion.

      Treadwell Cleveland, for Joseph L. Spofford, app’lt; Thomas G. Shearman, Wm. Pierrepont Williams and Jacob Halstead, for resp’ts.

       Affirming 44 St. Rep., 443,

   Andrews, Ch. J.

I shall briefly state the reasons which, in my opinion, justify the affirmance-of the judgment below.

The matter in controversy relates to the true construction of the sixth article in the agreement of settlement, dated June 6, 1891. It is claimed by the appellant that by that article he is entitled to have paid to him or for his benefit from the residuary estate of Paul Spofford interest at the rate of seven per cent on the trust fund of $150,000 created by the will of his mother, Susan Spofford, from the time of her death on the 18th day of May, 1886, to the date of the agreement of settlement, amounting to $53,025. Or, to state the contention in another form, it is that by the agreement the trust fund of $150,000, created by Susan Spofford’s will, was recognized and established as a valid charge on the residuary estate of Paul Spofford, together with.all the incidents as expressed in her will, including the declaration that from the time of her demise up to the making up or creation of the trust fund the bequest “ should have interest at the rate of seven per cent per annum.”

The claim on the part of the respondents is that by the true meaning of the agreement the residuary estate of Paul Spofford was to be charged only with the capital sum of $150,000, and that the appellant relinquished all claim for income or interest up to the date of the agreement.

It is claimed on behalf of the appellant that the sixth article of the agreement contains a clear and unambiguous expression of the intention of the parties to charge the estate of Paul Spofford for the benefit of Joseph L. Spofford with the payment of the back interest on the trust fund of $150,000, from the time of the death of Susan Spofford, as well as the principal. But the language of the sixth article is certainly inapt if this-was the intention. The provision in Mrs. Spofford’s will required that interest should be paid at the rate specified until the trust fund should be established, to be applied “ as if it had been income.” The interest which was temporarily to take the place of income was not in law or fact income. The only income which, by the terms of Mrs. Spofford’s will, was directed to be paid or applied to the use of the beneficiary of the trust, was income accruing from time to time from the trust fund. It is also to be observed that the language of the sixth article is future, viz. : “ Income which will become due,” and income thereafter accruing from the trust fund would be income coming “under the will of Susan Spofford.” The strong point in favor of the appellant’s contention arises out of the use of the words “ to date,” the language of the clause being “ out of the amount of the incomte which will become due to him. to date under the will of Susan Spofford,” etc.

If these words “ to date ” refer to the date of the agreement, which, it must be admitted, is the natural interpretation, the argument that the income referred to was income which had already accrued, and not income which should thereafter accrue, seems unanswerable; But in interpreting the sixth article of the agreement, all its provisions may be considered, and if it shall be found in such examination that the interpretation claimed is repugnant to the scheme of the settlement and to other parts of the instrument, and is opposed to the paramount intention, as disclosed by the agreement as a whole, then the court is to seek an interpretation which shall reconcile the particular clause with such general purpose. The court is not permitted to reject any clause of an agreement for repugnancy, except when the repugnancy is absolute and irreconcilable. It is important in this connection to consider what was sought to be accomplished by the agreement of June 6, 1891.

The primary and controlling object was to settle a family difficulty by a voluntary settlement, which should ascertain and definitely establish the rights of the parties interested in the estate of Paul Spofford. The estate had, as may be inferred, suffered large losses, and been depleted by the acts and negligence of the executors. The executors had taken from it by way of advances on their shares much more than had been paid to their brothers and sister. The agreement was made to settle the contention which had arisen between the children of the testator. One of the contentions was that the three eldest sons had received all they were entitled to out of the estate of Paul Spofford. It was also claimed that the two trust funds of $150,000 each, created by the will of Susan Spofford for the benefit of her sons, Gardiner S. and Joseph L., could not be taken out of the estate of her husband under the appointments in her will, for the reason that she had disabled herself to make such appointments by her dealings with the estate in her lifetime. The agreement of June 6,1891, was made to finally adjust these and other controversies. It would naturally be expected, therefore, that the rights and interests of the respective parties, and especially of the sons who had been executors, and whose conduct was called in question, in the property remaining would be distinctly defined and limited.

By the first article of the agreement the sons, Paul 1ST. Spofford and Joseph L. Spofford, were to resign as executors and trustees under their father’s will, and by the fifth article they were to make no claim for commissions. By the second article they admitted that they had severally received their share of the residuary estate of Paul Spofford. The third article relates to the settlement of the rights of the daughter of Gardiner S. Spofford, and it was declared that she was to receive out of the estate of Paul Spofford the sum of $50,000 in full on account of the trust fund of $150,000 created for the benefit of her father in the will of Susan Spofford.

The fourth article of the agreément is very significant is respect to the point in controversy. It deals with the trust provision of $150,000 for the benefit of Joseph L. Spofford, contained in the will of Susan Spofford, and is the sole provision in the agreement which directly authorizes an appropriation out of the estate of Paul Spofford for the purposes of that trust. That appropriation is of the sum of $150,000, the capital of the trust, and the article makes no appropriation for the payment of the large sum of $53,025 for back interest now claimed by the appellant. It declares that the subscribing defendants will not oppose the contention of the plaintiffs *• that the sum of $150,000, which by the will of Susan Spofford is made a trust fund, the income of which is to be applied for the benefit of Joseph L. Spofford during his lifetime, shall be directed by the judgment herein to be paid over to his truste'e and be invested and held as directed by said will.”

It is quite remarkable, if the additional claim for interest was also intended to come out of the general estate, it should not have been provided, for in this article. The contention on the one side had been that both the principal and interest on this trust fund should be a charge on the general estate, and on the other, that neither the principal nor interest should be so charged. When the parties came, in their settlement, to deal with this question, they provided for the payment of the principal alone. The sole ground for now insisting that the parties intended that the interest should also be paid rests upon an inference from the sixth article, which deals alone with a duty to be performed by the appellant towards his sister, for the purpose of equaling the advances out of the estate made to them respectively.

The 12th article, if it stood alone, would be conclusive against-the claim of the appellant. I quote it in full: “ 12. No claim shall be made by any of the parties to this suit for arrears of income or interest upon any of the trust funds created by any of the wills mentioned in the complaint.” There is no doubt of the general rule, applicable alike to the construction of contracts and statutes, that where a general intention is expressed and also a particular intention incompatible with the general intention, the particular intention is to be considered in the nature of an exception. Churchill v. Crease, 5 Bing., 178; Hoey v. Gilroy, 129 N.Y., 138; 41 St. Rep., 181. But it seems to have been the specific intention of the 12th article, construing the article with reference to the wills to which it refers, to exclude any claim for back interest on the trust fund of $150,000. The article relates to all the trust funds under the wills, either of Paul Spofford or Susan Spofford, as both are set out in the complaint. There were no trust funds under the will of Susan Spofford, except those created for' the benefit of Joseph L. Spofford and Gardiner S. Spofford. Indeed, the only strictly “ trust funds ” mentioned in her will were the two funds of $150,000 each. Mrs. Spofford also gave to each of these two sons a. share in the one-fourth part of her husband’s estate, after carving out the two funds mentioned, and also a share in her residuary individual estate. But these shares in both cases were given in trust, and as has been said, no other trusts were created by her will except for the benefit of her sons Gardiner S. and Joseph L. The twelfth article could, therefore, have no meaning so far as it related to the trusts under Susan Spofford’s will, unless it was intended to cut off any claim to back interest on the part of the two sons. The use of both the words “ interest and “income ” is significant. The word “ interest ” has no appropriate application except to the trust fund of $150,000. Moreover, the whole claim of the issue of Gardiner S. Spofford under the trust in his favor, including interest, was as contemplated by the third article to be fixed at $50,000.

•It would seem, therefore, that the reference in the twelfth article to back interest upon the trust funds under the will of Mrs. Spofford referred primarily to the trust fund in favor of Joseph Spofford. Referring again to the sixth article, it will be seen that its primary purpose was to impose upon Joseph L. Spofford an obligation to pay to his sister,Mrs. Pearsall, $75,000 for equality of division, which presumably was fixed upon as the sum he had received from the estate beyond what he was entitled to receive as between himself and his sister.

Under the fourth article he would become entitled to the income which would thereafter accrue on the trust fund of $150,000.

I think, in view of all the circumstances, the true meaning of the sixth article is that Joseph L. Spofford should pay to Mrs. Pearsall the sum of $75,000 out of his share in the estate of his brother, Eugene, and out of income which should accrue to him on the trust fund of $150,000, established by the fourth article, up to the date of the payment of the debt, and he appropriated both resources for that purpose. This construction is not free from difficulty, but it harmonizes all the provisions of the agreement, and it is reached, I think, with less embarrassment than attends the construction claimed by the appellant. The thirteenth article lends force to the view here taken. But without more extended discussion, in view of the able opinion at general term, I conclude the consideration of the case.

The judgment should be affirmed, with costs.

All concur, except Earl, J., not voting.


text:
    The People, Resp’ts, v. Charles Martell, App’lt.

      (Court of Appeals,

      Filed April 11, 1893.)

    1. Homicide — Sufficiency of pboof.
    Defendant lived with one Ida Walker, whom he called his wife. After drinking several times with one Parello, they both went to a house where there were several others. Parello came out of the house and started for his home. Defendant followed him, using threatening language, accusing him of having improper relations with Ida Walker, and saying he would “fix” him, or “ kill” him. He ran after him, the latter also running, and three times caught him and clinched, and struck him, throwing him down twice. The last time Parello “tried to say something ; he made a kind of gurgling noise, as though he had something in his throat.” Soon after his body was found dead near the place of the affray with seven wounds made with a knife on his person. The witnesses to the encounter testified that they saw no knife in the hands of either man. Martell returned to the house in great anger and excitement, saying he had fixed Parello and threatening to kill Ida Walker, and handed one of the witnesses a bloody pocket knife, with the request that he get away with it. Held, that a verdict of guilty of murder in the first degree was fully justified by-the evidence. • '
    8. Jurt— Competency.
    Where a juror has read of the transaction and formed an opinion, but nothwithstanding states that he think» that he can render an impartial verdict according to the evidence, he is competent, unless peremptorily challenged.
    3. Homicide — Evidence.
    A witness was permitted to testify to a statement made by Ida Walker in the absence of defendant that “ there will be a fight, because Jimmy is jealous of John Parello and her.” Held, that although the admission' of the evidence was erroneous, it was not only harmless but if any weight was accorded to it it was of advantage to defendant as an extenuation or mitigation of the crime.
    Appeal from judgment of Saratoga oyer and terminer convicting defendant of murder in the first degree.

      James T. Brusnihan and Charles Tefft, for app’lt; John Person and T. F. Hamilton, for resp’ts.
   Andrews, Ch. J.

It is conceded that Parello came to his death from a stab wound in the neck inflicted by the defendant with a knife. The evidence does not admit of a denial of the fact. Nor is it claimed that the homicide was justifiable. The only real question open for the determination of the jury related to the grade of the offense, whether it was murder in the first degree, or in the second degree, or some degree of manslaughter.

It appears that the defendant and Parello were Italians, and they with one Charles Weeks were employed on the electric railroad in the village of Saratoga. Parello lived with one Florence Stoddard and the defendant with one Ida Walker, whom he called his wife. On the evening of May 4, 1892, Martell, the defendant, Charles Weeks and one Job Weeks met in a saloon in the village, and after they had drank together several times left the saloon, going in the direction of the house where Charles Weeks lived. Charles Weeks stopped on the way, and Martell and Job Weeks passed on to the house of Charles Weeks. The latter soon followed them, and he testified that as he was about entering his house Parello came out of the kitchen door and started in the direction of his home. Weeks found in the house his wife and the two women Florence Stoddard and Ida Walker, Job Weeks and another man, Hazard, and the defendant Martell.

Martell was about to leave the house, and did immediately leave it, using threatening language in respect to Parello, accusing him of having had improper relations with Ida Walker, and saying he would “ fix ” him, or, as stated by one of the witnesses, would “kill” him. He ran after Parello, who was also running, ánd Martell caught him about 200 feet from Weeks’ house, and • the parties had a “ tussle,” each appearing to be striking the other. Parello finally got loose from Martell and commenced to run again, and was again overtaken by Martell, who clinched him and threw him to the ground, and appeared to be striking him. Parello got loose again and ran, and, as before, was followed by Martell, and was again thrown down, and the blows were repeated, and then Parello was released by some of the persons who had followed the parties from the Weeks house, or by one Brisbin, who had been attracted by the affray.

Parello “ tried to say something ; he made a kind of gurgling noise as though he had something in his throat." Soon after his body was found dead near the place of the affray. The autopsy disclosed seven incised wounds on his person, two of which penetrated the abdominal cavity. There were wounds in the back of his person, and one in the neck, which latter was the immediate cause of his death. This wound was made with a knife, which severed some of the arteries, and the physician testified that the wound indicated that the knife had been “twisted" after it entered the body.

The affray took place about ten o'clock in the evening. The two Weeks and Hazard, who followed the two men and witnessed the encounter, permitted the murderous attack to go on, without attempting to interfere, except at the last moment. They testify that they saw no knife in the hands of either of the men, and did not suppose that any serious injury had been inflicted.

Martell returned to the Weeks house, exhibiting, as some of the witnesses testify, great anger and excitement, saying that he had “ fixed ” Parello, and threatening to kill Ida Walker, because of her alleged infidelity. It does not appear that his charge against Parello was justified. Martell had been wounded also. One of his eyes had been punctured, and it resulted in his losing the sight, and there was an incised scalp wound. There is no direct explanation of how these wounds were inflicted. It is most probable that they were inflicted by Parello in the course of the struggle.

Weeks testified that after Martell returned to the house, Mar-tell handed him a (pocket) knife, on which there was blood, which he refused to receive and handed it back to him, and that Martell said, “I don’t want it; get away with it,” and that Mar-tell went out near to the fence and made a motion as if throwing something away and then returned. A knife was found near the point where, if Martell threw away a knife on the occasion testified to by Weeks, the knife would, naturally be found. Another witness corroborates Weeks’ testimony as to the conversation in the room about the knife. There is some obscurity in the evidence as to the knife used by Martell. A pocket knife-was found on his person when arrested, a few hours after the affray, stained, as Weeks testifies, with blood. ■

Upon the facts, of which the foregoing is a brief outline, and as to which there is but little conflict, the case was submitted to the jury by the learned trial judge in a brief but perfectly accurate statement of the law governing the different degrees of homicide, and to the charge no exception was taken.

The court instructed the jury that, to constitute murder in the first degree, there must be a killing of a human being from a deliberate and premeditated design to effect the death of the person killed or another; that the People “have the burden of showing, first, that the killing did take place; that it was done deliberately and with premeditation, and that they must satisfy the jury of these facts beyond a reasonable doubt,’’ and further, that “ you must be satisfied that he, defendant, committed the crime deliberately and with premeditation; that means, that he did it knowing that he was going to do so, and having deliberately made up his mind that he was going to kill this man.” With equal precision the court charged as to what constitutes murder in the second degree. He said: “But if you find that he did not deliberately and with premeditation commit this crime, yet did it with malice, intending to kill him and knowing what he was doing, being actuated with malice, yet not with that degree of deliberation and premeditation that would characterize murder in the first degree, then he would be guilty of murder in the second degree.”

So in respect to the offense of manslaughter the court said : “ IE you find both of these elements lacking and find there was a fight between these parties, and that defendant had no design to kill the deceased, then you must find him guilty of manslaughter in the first degree. If you find he did it in a quarrel in the heat of passion, without any design to effect the death of the party, without a design to use this weapon for the purpose of killing him, then you must find he was guilty of manslaughter in the second degree."

It must be assumed that the degree of the crime as disclosed by the facts and the inferences from them on the one side or the other had been fully discussed by counsel before the jury, and it is unreasonable to suppose that a jury sitting upon the question of life or death did not fully appreciate the simple distinctions which under the statute separate the different degrees of homicide, or that, if fuller information was desired, they would not have asked for further instructions. It would be an anomaly to reverse a judgment of conviction because in the charge, which is admitted to be accurate, and which certainly described all the elements going to make up the crime of homicide in its various degrees, there was not a more elaborate presentation by the judge, and especially in a case defended by competent counsel who requested no further or fuller instruction to the jury than was given.

The verdict was in our opinion fully justified by the evidence. The defendant sought the encounter and persistently followed up the deceased, striking him repeatedly with a deadly weapon, while during the whole time the deceased was endeavoring to escape and run away. There can be no doubt that the defendant was prompted bv jealousy on account of the supposed interference of the deceased with the defendant’s possession of the abandoned woman, Ida Walker. This is plain beyond controversy, as shown by the declarations of the defendant just previous to the encounter, and in Weeks’ house after he returned from the affray. Pre meditation and deliberation is an irresistible inference from the uncontradicted facts, and that defendant designed to kill was found by the jury upon ample evidence.

Two of the jurors who sat in the case testified, upon being challenged, that they had read of the transaction and the facts in the case, and that from what they had read they formed an opinion which it would require evidence to remove. In answer to a question by the court, both of them stated that, notwithstanding the opinion thus formed, they thought they could render an impartial verdict in the case according to the evidence. The learned trial judge ruled that they were competent jurors, and they were permitted to sit in the case without peremptory challenge, which the defendant was entitled to interpose if he desired, and no exception was taken to the ruling. It is now urged that as before the present statute they would have been incompetent as jurors, they were still incompetent, as under it they were required to swear to their belief that, notwithstanding the opinion formed, they could render an impartial verdict in accordance with the testimony. This position is based upon a criticism of the words' of the statute and the words of the jurors in reply to the inquiry of the court. It is said that the expression, “I think,"’ is not equivalent to “I believe.” That the former implies conjecture or mere guess, while the latter denotes belief in the ability to properly discharge the duty of a juror, and is a stronger and more definite expression. We think the contention is untenable. It is not necessary that the juror, in his examination, should swear in the very words of the statute. The two expressions are substantially equivalent in common language, and there can be no reasonable doubt that the oath of the jurors in each case disclosed that condition of mind which the statute requires, and that the court could properly decide that they were competent.

There was but one exception taken during the trial, after the juiy was empanelled, which requires notice. Florence Stoddard was permitted, under objection of the defendant, to testify to a statement made by Ida Walker, in the absence of the defendant, that “ there will be a fight, because Jimmy is jealous of John Parello and her.” The admission of this evidence was undoubtedly erroneous, as being the declaration of a third person in the absence of the party. Immediately following this evidence is a statement in the record as follows: “At the close of the People’s case, this evidence was stricken out.”

It is claimed that this entry was incorrect, and that the evidence stricken out was some other evidence, and this is said to be shown by other parts of the record. But the statement of Ida Walker, at most, was a confirmation of the fact, established beyond dispute, that jealousy was the motive which impelled the defendant to commit this murder. Moreover, jealousy was the only fact which explained the defendant’s conduct, and although not a legal defense, if the other facts admitted of a construction by the jury which would reduce the grade of the homicide, the fact that the defendant was impelled by one of the fiercest and most implacable of human passions would very likely have been taken by the jury as an extenuation and mitigation of the crime. The error was not only harmless, but if any weight was accorded to the statement of the woman, the evidence was of advantage to the defendant.

We are satisfied with the verdict, and no material error being disclosed by the record, the judgment should be affirmed.

All concur, except Ó’Brien, J., not voting.