text:
    HENRY L. PIERSON and Others, Appellants and Respondents, v. ROBERT CROOKS, and Others, Appellants and Respondents.

      Contract for a sale of iron — right of the purchaser to reject such as is not of the quality specified — when the examination is not required to be made at the place of shipment — when the purchaser may accept part and rejeet the remainder of the iron delivered — when he may reject iron not loaded on the vessel at the port specified in the contract.

    This action was brought by the plaintiffs to recover back moneys paid by them for freight,' duties and other charges on iron which the defendants, merchants in the city of Liverpool, had by a written agreement, signed by their brokers in the city of New York, agreed to sell and deliver to the plaintiffs. The agreement, which was dated in New York, stated that the defendants had sold to the plaintiffs 100 tons W. I. W., or equal hoop iron, at £10 per ton; 100 tons W. I. W., or equal sheet iron, at £11.15.0; fifty tons R. G., or equal sheet iron, at £16.5.0, “all free on board Liverpool, payment by 60d St. Bl. Exchange, against shipping documents here, less two and one-half per cent.” It was understood that the defendants, who were not manufacturers of iron, should obtain it from other persons and ship it to the plaintiffs. The plaintiffs accepted all the iron agreed to be sold except the hoop iron and the final shipment of the R. G. sheet iron, which they refused to accept, upon the ground that the iron was very much inferior in quality to that which they were, by the terms of the agreement, entitled to receive. After the hoop iron upon one vessel had been unloaded and weighed by the officers of the custom house, and removed to the plaintiffs’ place of business, it was rejected by them, of which notice was given to the defendants.
    Held, that the plaintiffs were justified in rejecting it at that time, and were entitled to recover from the defendants what they had paid for freight, duties and other charges or advances upon the iron.
    That a claim made by the defendants that the right to examine and reject, or accept, must be exercised before the iron was received and shipped at the city of Liverpool, and could not be exercised after its arrival in the city of New York, was not well founded.

      Allard v. Oreasert (61 N. Y., 1); Mee v. McNider (39 Hun, 345), and Pope v. Allis (15 U. 8., 363) followed; Neaffie v. Han't (4 Lans., 4); Pease v. Copp (67 Barb., 132); Stafford v. Pooler (Id., 143) distinguished.
    After the arrival in the city of New York of one of the vessels upon which the hoop iron was loaded, and before the other vessel had left the city of Liverpool, and before it had been loaded with all the iron to be shipped upon it, the plaintiffs notified the defendants that they would not receive any more iron of the quality shipped on the first vessel.
    Held, that as it was shown'that the iron loaded on the second vessel was of the same quality as that loaded on the first, the plaintiffs were entitled to reject it without inspecting or examining it.

      Pope v. Porter (102 N. Y. 366) followed.
    Some of the hoop iron was shipped upon vessels upon which were also shipped portions of the sheet iron. The sheet iron was accepted and received by the plaintiffs, while the hoop iron was rejected.

      Held, that the contract being for the sale of different qualities of iron at different prices it was not to he considered as an entire contract, hut as a severable one, and that the plaintiffs were entitled to receive that distinct part of the property which complied with the terms of the agreement, and to reject that portion thereof which failed to comply therewith.

      Young v. WaJcefield (121 Mass., 91); Merrill v. Agricultural Insurance Company (73 N. Y., 452); Swift v. OpdyJce (43 Barb., 274) followed.
    That payments made by the plaintiffs towards the purchase-price of the iron did not operate as a waiver of their right to object to the quality of the iron, as such payments were made, as required by the agreement, upon the production of the shipping documents, and upon the supposition that the contract had been, or would be, so performed as to entitle the defendants to the money.
    A portion of the R. Gt. sheet iron was not laden on the vessel by which it was shipped at Liverpool, but was laden at Cardiff, a port in Wales on the British channel.

      Held, that the plaintiffs were entitled to refuse to accept it as the defendants liad, by the agreement, agreed to ship the iron at Liverpool.

      Pilley v. Pope (115 U. S., 213) followed.
    That the performance of this condition of the agreement was not waived by the plaintiffs, by receiving and paying for other iron so shipped, as the payment was made without information on the part of the plaintiffs that such other iron had not been shipped at Liverpool.
    Appeal from a judgment entered on the report of a referee.

      George A. Blaek and James C. Cc/rier, for the plaintiffs.

      John Ij. Rill, for the defendants.
   Daniels, J.:

The ac'tion was brought by the plaintiffs to recover back moneys paid by them for freight, duties and other charges, on iron which the defendants contracted to sell and deliver to them. The contract was made through the agency of brokers representing the defendants, who were merchants in the city of Liverpool. The contract is as follows:

“New York, February 11, 1880.
“ Sold to Messrs. Pierson & Co., New York, for account of Messrs. Robert Crooks & Co , Liverpool:
“ One hundred (100) tons W. I. W., or equal hoop iron, at £10 per ton.
“ One hundred (100) tons W. I. W., or equal sheet iron, at £11,15,0.
“Fifty (50) tons R. G., or equal sheet iron, at £16,5,0, all free on board Liverpool, payment by 60d st. 131. exchange against shipping documents here, less two and one-half per cent. Immediate specification.
“ WHITE & DRUMMOND, uBro7cers.
Accepted.
“ Pierson & Go.”

And the 100 tons of hoop iron mentioned in it were after-wards increased to 150 tons. Specifications were supplied by the plaintiffs for the shipments and delivery of the iron in three or four different parcels. The defendants were not manufacturers of the iron, but it was designed that they should, as they afterwards did, obtain that from the manufacturers which they afterwards shipped to the plaintiffs, The 100 tons of sheet iron proved to be satisfactory and acceptable and was received and paid for by the plaintiffs. And so was a certain portion of what is called the R. G. sheet-iron, subject to certain allowances and deductions which were made. The controversy in the action has, in this manner, been limited to the hoop iron and the final shipment of the R. G. sheet iron amounting to nearly forty-one tons. As to all the hoop iron, and this residue of the R. G. sheet iron, the plaintiffs objected to receiving it upon its arrival in New York where the hoop iron was-unladen, and in Brooklyn where the R. G. sheet iron was unladen. The objection taken to the acceptance of the hoop iron was that it was very much inferior in quality to that which the plaintiffs were, by the terms of the agreement, entitled to receive. Two of the shipments which were made of the hoop iron were also accompanied with shipments of sheet iron. These were made upon the steamers Germanic and Arizona. Other shipments of hoop iron were made by the steamers City of Chester and Abyssinia. Upon these two steamers were laden no portion of either quality of sheet iron, and upon the arrival of the City of Chester and the unlading of the iron, the plaintiffs, upon an examination of its quality and condition, rejected it as not in compliance with the agreement they had made with the defendants. And the referee, by his decision, concluded that the plaintiffs were justified in the objections made to this iron, and also that laden on the Abyssinia, leading them to reject it. And for that reason they have been permitted by the judgment to recover against the defendants what they paid for freight duties and other charges, or advances, upon this iron. It appeared, by the evidence, that they were not permitted to handle or remove the iron until it had been weighed by the officers of the custom house, and that after delaying until that was done the portion of the iron coming by the Germanic was taken to the plaintiff’s place of business where an examination was made of it resulting in their determination to reject it, of which notice was given to the defendants. The other was examined upon the wharf, and, being found of the same quality, that also was rejected. That the evidence justified the referee in concluding this iron to be of an inferior quality to that mentioned in the contract of sale, is conceded by the case, and that relieves it from the necessity of any examination of this fact which was'disputed before the referee upon the trial.

’ There appears to be nothing unreasonable in the delay which took place at the city of New York in the examination of the iron after its arrival. It was not done as speedily as that might be done, but, as the circumstances were made to appear, there was no unreasonable delay on the part of the plaintiffs in subjecting* the iron to these examinations. And as the law has required no more than reasonable diligence in the examination of property shipped, or offered, to the purchaser after its arrival, its requirement was observed by the plaintiffs in this instance. They were not required to dispense with the other demands of their business and devote immediate attention to this iron, but it was their duty to proceed reasonably as they would be expected to do with other urgent matters of business. And that duty does not seem to have been neglected as the facts of this case have been disclosed.

It is insisted, however, on behalf of the defendants, that this right to examine the iron and reject, or accept it, as it was found not to conform with the contract, could not be made after it was received and shipped at the city of Liverpool; that the agreement designated that to be the place for its delivery, and imposed the duty upon the plaintiffs of making their examination of it at that port. But that is not the construction which should be given to the agreement. It neither provided for nor contemplated an inspection, or examination of the iron at that port, but what was to be there done was for the defendants to deliver the quality of iron mentioned and described in the agreement free on board at that place. This was the- obligation they undertook by the contract that was entered into. It was to deliver on board the ships at Liverpool this and no other quality of iron. And no intimation was given, or expectation indicated that the plaintiffs, who were merchants, doing business in the city of New York, should present themselves at Liverpool, either personally or by an agent, to discover whether the defendants performed this obligation or not. No intervention on their part was provided for, but the part of the contract to be there performed was wholly cast upon the defendants themselves, and if they failed to perform it the plaintiffs had the right, upon the discovery of that fact, to reject so much of the iron as failed to comply with the terms of the contract. A point similar to this was considered in Allard v. Greasert (61 N. Y. 1), where the controversy arose under the statute of frauds. And while this statute is not brought in question in this case, what was there said concerning the obligation of the vendee to examine the property at the place of shipment for the purpose of ascertaining whether it complied with the requirements of the contract is applicable to this controversy. But if not, because of this distinguishable circumstance, still, as it was manifestly the intention of the parties from the agreement that what was to be done at Liverpool was' to consist wholly of the acts of the defendants, the vendees were not obliged to present themselves there either in person, or by agent, to see whether they performed, as tljey agreed to do, that, or not. This point, under a somewhat similar contract, was considered in Mee v. McNider (39 Hun, 345), where it was held that the contract of sale obligated the vendor to deliver the property agreed to be sold in the condition required by the agreement, on shipboard at the place of shipment. And if he did that, his agreement was performed, and he thereby placed the property at the risk of the vendee, while if he failed to do so he failed to perform his contract. This point was also considered, and a- like conclusion reached in Pope v. Allis (115 U. S., 363). And the authorities very clearly distinguish this case from those relied upon in support of this position by the defendants. For in Neaffie v. Hart (4 Lansing, 4), the defective boiler was not only received, but knowing its defects, it was retained and used as a boiler by the vendee. And so was the cheese which was the property sold in Pease v. Copp (67 Barb., 132). While in Stafford v. Pooler (Id., 143), the contract made the delivery of the hoops pergonal to the defendant. These cases are, consequently, inapplicable to the controversy and do not conflict in' the principle they follow with that maintained by the other authorities. Those authorities proceed upon the obligation of the vendor in an agreement of this character to ship the property of the quality and in the condition described in the agreement, reserving, upon its arrival at the port of destination, to the vendee the right to examine and reject it if that obligation appears not to have been performed.

This right of inspection and examination preceding the obligation to accept the property is maintained by all the authorities where the sale is executory, and the property itself is unascertained or separated, as were the facts in this case. This was the conclusion of the court in Sprague v. Blake (20 Wend., 61), where it was said that “ when the party comes under such a contract, to deliver an inferior unmerchantable commodity, which lies open to inspection, then is the time for the vendee to take his ground. He must then refuse acceptance, or at least so soon as he discovers what the quality of the article is, and offer to return it.” (Id., 64.) And as much as this was held in Reed v. Randall (29 N. Y., 358), for there it was stated in the prevailing opinion that the vendee “is not bound to receive and pay for a thing that he has not agreed to purchase; but if the thing purchased is found, on examination, to be unsound, or not to answer the order given for it, he must immediately return it to the vendor, or give him notice to take it back and thereby rescind the contract, or he will be presumed to have acquiesced in its quality. He cannot accept the delivery of the property under the contract, retain it after an ojiportunity of ascertaining its quality, and recover damages if it be not of the quality or description called for by such contract.” (Id., 363.) And Gurney v. Atlantic, etc., Railway Company (58 N. Y., 358) proceeds upon the same principle. There it was stated that “ the general rule is when articles are sold upon an executory contract * * * that the delivery and acceptance of the articles, after examination, or an opportunity to examine them, is a consent or agreement that the articles correspond wi'th the contract and precludes a recovery for any defects' which may exist.” (Id., 364.) And the plaintiffs fully complied with this rule in their examination of the iron, their refusal to receive it, and their notice of that refusal to the defendants. This examination was made when the opportunity first presented itself for observing and testing the make and quality of the iron. It was not required that this should be done before the arrival of the iron at its port of destination by anything contained in, or to be implied from, the agreement, and the right to subject it to the examination which was made was, under the authorities referred to, for the first time legally presented upon the arrival of the iron in the city of N ew York.

In the'ease of Pope v. Allis the examination and inspection of the property was deferred to a much longer and more remote point of time, and still it was sustained by the court and the vendee was relieved from the obligation to receive and' accept the 'property under the agreement. As to these two shipments, by the City of Chester and Abyssinia, therefore, the plaintiffs clearly maintained their right to recover the amounts awarded to them by the referee in his report, for, while the iron on the Abyssinia was not actually inspected or examined by the defendants, the evidence in the case justifies the conclusion that it was of the same quality as that delivered from the City of Chester. It was not contended to be otherwise by the defendants, and the plaintiffs, assuming from the three preceding shipments that the hoop iron was all of the same quality, notified the defendants of their refusal to receive any more of that quality of iron; and this was communicated to the defendants before the iron by the Abyssinia was entirely laden or the ship had left the city of Liverpool. In this refusal they certainly seem to have been justified by the principle proceeded upon in Pope v. Porter (102 N. Y., 366), for, as the defendants had shipped to them only this inferior quality of iron, the facts supported them in the conclusion that no better quality could be expected to be received under the agreement.

As to the hoops shipped by the steamers Germanic and Arizona, a further objection to the right of the plaintiffs to recover arises out of the fact that upon these steamers there were also shipped certain qualities of the sheet iron, the Gei’manic having on board upwards of fifteen'tons, and the Arizona upwards of forty seven tons of the sheet iron. This iron was accepted and received by the plaintiffs, but the hoop iron arriving with it was rejected, and the objection has been taken that the plaintiffs could not accept oné portion of these shipments and reject the other. But by the agreement these were two distinct and separate qualities of iron which the defendants agreed to sell, and deliver for different prices. For the hoop iron they wei’e to be paid ten pounds, per ton, and for the sheet iron they were to be paid eleven pounds, fifteen shillings per ton. These sales wei’e accordingly of two separate and distinct subjects, for distinct prices pertaining and applicable to each of them. And when that is the case the contract of sale has not been considered to be entire but severable in its nature, allowing the purchaser to receive that distinct part of the property complying with the terms of the agreement, and to reject the other distinct part which fails to be of the description of the pi’operty agreed to be sold. This point was considered in Young, etc. v. Wakefield (121 Mass., 91), where it was held that different articles, bought' at the same time, for distinct prices, might be accepted so far as they conformed to the agreement of sale, and rejected where that proved not to be the fact. (Id. 93.) This was also held to be the law in Merrill v. Agricultural Insurance Company (73 N. Y., 452), and the same principal is applied in Swift v. Opdyke (43 Barb., 274), and it is in no degree inconsistent with the case of Secor v. Sturges (16 N. Y., 548).

This principle, applied in this manner, is entirely in accordance with the general legal rule that where an agreement is to be rescinded it must be rescinded wholly, or not at all, for the plaintiffs did not undertake to rescind the agreement relating to the shipments of hoop iron, except in the single instance of that which finally came by the Abyssinia. What they did was to refuse to receive the infei’ior quality of hoop iron shipped to them by the defendants for the purpose of performing their agreement. That did not rescind the contract or any part of it. It was still left, as a subsisting agreement between these parties, which the defendants might have fulfilled-by supplying the- plaintiffs with the proper qnality of hoop iron. If they had done that then the plaintiffs would have been liable for whatever damages might have been sustained by refusing to receive the iron. And as they failed to do that the plaintiffs were at liberty to claim indemnity under the contract for what they had paid upon the iron, or for any loss they might have sustained in consequence of a favorable change in its market price. These rights legallv grew out of the contract itself and entirely distinguish the ease from those where a rescission of an agreement has been attempted. There the law requires that it shall be wholly rescinded to make the act of the party effectual for the purpose of recovering back that which he may have parted with under the agreement. This is not that case, but it is a case where the defendants agreed to deliver a special quality of hoop iron and failed to do so. By that failure they omitted to perform their agreement, and all that the plaintiffs did was to refuse to receive the inferior iron when they discovered this failure on the part of the defendants. It was not a rescission of the agreement in any respect whatever, but no more than a refusal to receive what they were not bound to accept as a part performance of it. And they were accordingly entitled to recover upon the view which the referee was supported in adopting concerning the facts of this part of the controversy.

The payments which were made by the plaintiffs towards the purchase-price of the iron did not have the effect of waiving their right to insist upoft it that the quality should be the same as that mentioned in the agreement, for the first payment does not seem to have included any part of the hoop iron on the Germanic, which had then been discovered to be defective in quality, and it was made, as the agreement declared it should be, by a bill of exchange against the shipping documents produced and delivered to the plaintiffs, which it was essential they should possess in order to be able to obtain any control of the iron. This payment, including the invoice by the Arizona, as well as the succeeding payment, were made on account, and on the supposition that the contract had been, or would be, so performed as to entitle the defendants to the money. It was not a voluntary payment, in the sense excluding their right to recover so much of it back, as would protect the defendants against the obligation to restore so much of the money, as the plaintiffs’ indemnity required to be restored, by the failure to perform the agreement which they entered into. Neither these payments nor any other facts appearing in the case deprive the plaintiffs of their right to recover, so far as it has been sustained by the conclusions of the referee.

It has, however, by the judgment been determined that the-plaintiffs were not justified in refusing to accept so much of the R. G-. sheet iron as arrived by the steamer Rhubina. This iron was not laden on the steamer at Liverpool, but it was put on board of her at Cardiff, a port in Wales, on the Bristol channel. And because of its shipment in this manner, as well as objections taken to a slight excess in quantity, the plaintiffs refused to receive it. And the first of these objections certainly appears to have been warranted by the agreement, for the defendants agreed to ship the iron at Liverpool. They were not to insure it, but that was to be done, according to the specifications, by the plaintiffs, and, as they were not aware of this change in this port of shipment, the insurance effected by them upon it, if they did insure it, would have been worthless, if the iron had been injured or lost by a peril of the sea. This variation from the port of shipment would render the insurance invalid, and it did not create even a qualified delivery of the iron to the defendants, subject to their right of examination, under the rule sustained in Wilcox Silver Plate Company v. Green (72 N. Y., 17). For, to constitute even a qualified delivery of this description, the defendants were bound to ship the property as that had been provided for in their agreement, and having failed to do that, and no acceptance of the iron being made by the plaintiffs after its arrival, there was not even a qualified delivery of the iron shipped in this manner.

As to this iron the defendants failed to perform what the parties had agreed upon as one of the precedent attributes of their contract. And the performance of that condition was not waived by receiving and paying for the iron shipped at the same port on the Rhiwinda, as that payment was made without information on the part of the plaintiffs that the iron had not been shipped at Liverpool, and the defendants accordingly had no legal right to claim that this iron should be received by the plaintiffs. A point of this description was considered in Filley v. Pope (115 U. S., 213), where it was held that such a departure iu the port of shipment relieved the vendee from accepting or receiving the property so shipped. The referee accordingly erred in the conclusion arrived at by him, that the plaintiffs were legally liable to accept this iron, and not having done so, were chargeable with the difference between the price they agreed to pay for it and the net proceeds of the sale which was afterwards made of it. This part of the judgment, therefore, requires to be reversed, and the amount deducted on account of it from the demands sustained by the proof in the plaintiffs’ favor should be restored. And as there is not the slightest ground for supposing or suggesting that the defendants will be able to make any case upon which the plaintiffs would be legally chargeable for this difference, a further trial of this part of the action will not be necessary.

This part of the' judgment should, accordingly, be reversed, and the counter-claim of the defendants, including it, dismissed, unless a further trial of this part of the action shall be made to appear to be desirable on the settlement of the terms of the decision, and the plaintiffs should have judgment for the amount found to be otherwise due and owing to them by the referee and included in the judgment, and as so modified the judgment should be affirmed.

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

Judgment modified as directed in opinion, and as modified affirmed.


source: Caselaw Access Project

author: Daniels, J".:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. SIGMUND NEUSTADT, as Executor and Trustee, etc., of ADOLPH HALLGARTEN, Deceased, v. MICHAEL COLEMAN and Others, Commissioners of Taxes etc., of the City of New York.

      Assessment for personal property — when all the estate may he assessed against one of several executors —power of the commissioners of taxes in New York city to carrea erroneous assessments —1883, chap. 410, sec. 830 — power of the court to do so on the hearing of a certiorari to review them — Code of Civil Procedure, see. 3141.
    Upon the hearing of an application to correct an assessment of $375,000 for personal property, made hy the commissioners of taxes of the city of New York against the relator, John Duer and Julia Hallgarten, as éxecutors of the estate of Adolph Hallgarten. it was shown that the relat * resided in the city of New York; that John Duer resided in the county of Richmond, and that Julia Hallgarten resided in Germany; that part of the property of the estate consisted of railroad bonds, registered in the names of all three executors, and of bonds and mortgages taken in their names, and of bonds registered in the name of the deceased, all of which were deposited in a safe deposit vault, in a box or safe, rented by said deceased during his lifetime and still standing in his name, though the rent had, since his death, been paid by his executors. The commissioners corrected the roll by striking out the names of the two executors not residing in the city of New Tcrk, leaving an assessment for the full amount as against the relator.

      Held, that the property was in the possession of the relator, or under his control as executor or trustee, within the meaning of section 5 of 1 Revised Statutes (6th ed.), 934, and that an assessment for the full value thereof was properly imposed upon him.
    That, under the power conferred upon the commissioners by section 820 of chapter 410 of 1882, to cause an assessment which is, in their judgment, erroneous, to be corrected, and to fix the amount of such assessment as they believe to be just, they were authorized to strike out the names of the non-resident executors upon the hearing of the application.
    That, if the commissioners had not made this correction, this court could have made it, under the power conferred by section 2141 of the Code of Civil Procedure upon the hearing of the certiorari.

    "Writ of certiorari to review tbe legality of an assessment made against the relator for the personal estate of the testator, amounting to the sum of $375,000.

      George A. Strong, for the relator.

      George 8. Coleman, for the commissioners.
   Daniels, J".:

After the assessment was made by the commissioners, assessing the executors for personal property to the amount of $375,000, an application was made in their behalf for the correction of the assessment. This was supported by the affidavit of two of the executors stating that John Duer, one of the three executors, resided in the county of Richmond, in this State, and Julia Hallgarten, another, resided in Hamburg, in Ger. many. It was not denied in either of the affidavits that the property itself, concerning which the assessment was made, was located in the city of New York; but for the reason that two of the executors resided out of the city and county of New York,, it was urged before the commissioners that no assessment on account of this property could be made by them. In support of the application it was stated in the affidavit of the relator that part of said property consists of railroad bonds registered in the names of all three of the executors; another part consists of moneys which have been loaned upon bond and mortgage taken in the names of all three executors as trustees, and the remainder consists of bonds which were registered in the name of Adolph Hallgarten during his lifetime, and have never been changed. ■ All of the above mentioned securities are kept in a safe deposit vault, in a box or safe, rented by said Adolph Hallgarten during his life time and still standing in his name, but the rent of which, since his death, has been paid by his executory.” And because he was the only executor residing in the city of New York, the objection was taken that no assessment whatever could be made on account of this property, or, if it could be, that his one-third interest in it, as executor, amounting to the sum of $125,000, should be the extreme limit of the assessment. The commissioners held adversely to these objections, and that the assessment could not be reduced in amount but that it should be corrected by striking out the names of the two executors not residing in the county of New York, and remain as an assessment for the full amount against the relator.

Authorities have been relied upon in support of the position that the commissioners could not change the assessment by striking out the names of the two non-resident executors and allowing it to stand against the relator alone, but these authorities are not controlling over the controversy. For, in the ease of Clark v. Norton (49 N. Y., 243), the assessment was held to be illegal because of the addition of the name of a person as owner of the real estate, after the period for inserting that in the roll had expired. And upon a like want of authority the case of Westfall v. Preston (49 N. Y., 349) was decided; a similar want of authority was presented in Overing v. Foote (65 N. Y., 263.) And in Stewart v. Crysler (100 N. Y., 378), the assessment itself was not made to the person against whom the law provided that should be. While in People ex rel. Chamberlain v. Forrest (96 N. Y., 544) the assessment was increased from $4,000 to $40,000, after the time in which the power to make the increase could by law be exercised. In the present case the commissioners acted within the time allowed for that purpose by the statute, and their decision should be sustained if their action is not to be held to have been illegal in some other respect. The case of Stinson v. Boston (125 Mass., 348) is also inapplicable to this case for it was decided upon the effect of a statute of the State of Massachusetts excluding the power to assess the owners of shares of ships and vessels in the place where the other business of the partners was carried on, when they themselves resided elsewhere. And in Mayor, etc., of Baltimore v. Stirling (29 Md., 48), the law failed to indicate or direct how the two trustees, not residing in the place where the assessment was made, should be respectively assessed... In Hardy v. Yarmouth (6 Allen, 277) the decision also proceeded upon a statute of the State of Massachusetts providing for the assessment of the estate of the testator only in the town where he resided, until notice should be given of the names of the persons to whom it had been distributed, as parties in interest. While the case of State v. Matthews, cited as reported in 10 Ohio State, 436, has not been found because of the inaccurncy of the reference. Neither one of these authorities from the reports of other States arose under any such provision of law as the legislature of this State has prescribed for the assessment of personal property.

The law, as it has been here enacted, and was in force at the time when the assessment in controversy was made, has provided that “Every person shall be assessed in the town or ward where he resides when the assessment is made, for all personal estate owned by him, including all personal estate in his possession, or under his control, as agent, trustee, guardian, executor, or administrator, and in no case shall property so held under either of these trusts be assessed against any other person.” (1 R. S., 6th Ed., 934, Sec. 5.)

What this statute has directed is that the executor to be assessed, shall reside in the town or ward where the assessment is made, and shall be possessed of the personal estate forming the subject of the assessment. The relator has not denied that his residence subjected him to assessment under the direction contained in this statute, and the laws specially applicable to the city of New York. Neither does it appear that any part of the property for which he has been assessed was not in his possession. What he has denied is, that it ivas not in liis possession or under his control “ any more than it is in the possession and under the control of- my co-executors, as will appear by the following facts,'5 being those already extracted. It is to be assumed, therefore, as that seems to have been done on the hearing before the commissioners, that the personal estate was at the time in the city of New York, where this executor resided, and that the assessment could lawfully be made by them, provided the relator can be held to be a person having the control or possession, of this personal estate. And that he can be held to have had the possession or control within the significance of these terms, appears to follow from the title invested in him as an executor. For, if a man appoints several executors, they are deemed in law but as one person representing the testator, and, therefore, the acts done by one of them which relate either to the delivery, gift, sale, payment, possession or release of the testator’s goods, are deemed the acts of a’l for they have a joint and entire authority. (Murray v. Blackford, 1 Wend., 583, 617; 4 Bacon Abr. [3d ed.], 1860, 37, 38.) And w’here there may be two or more executors, and one of them shall die, the survivors become vested with the title to the personal estate. And this is, upon the same principle already mentioned¡ that if there be several executors they are regarded in the law as one person. They have a joint and entire interest in the effects oi the testator, including chattels real, and in case of death such interest vests in the survivor. (1 Williams on Exrs. [6th Am. ed.], 286; 2d Id., 980.) And this has been embodied in a statutory provision of this State. (3 R. S. [6th ed.], 83, § 59.) And for all practical purposes it vests in each of the executors a title similar to that vested in joint tenants. Each may discharge debts due to the estate by receiving payment (People v. Keyser, 28 N. Y., 226), or release real estate from the lien of an incumbrance (Stuyvesant v. Hall, 2 Barb., Ch., 151.)

The title of a joint tenant has been declared to extend to the whole of the property jointly held, and his possession to be that of the entirety, as well of every parcel as of the whole (4. Kent’s Com. [7th ed.], 375), and the relator was vested with this title and possession, over the personal estate of the testator, which the commissioners assessed ; for as to that he was a trustee for the next of kin holding it in trust for their benefit. (1 Perry on Trusts [2d ed.], 94; 2 Story’s Eq. Jur., § 1208.) And he is designated a trustee in the section of the statute declaratory of the power of the commissioners over the assessment. And it is quite well settled that trustees are in equity regarded as joint tenants. (Id., § 343.) These principles, sanctioned as they are by the authorities, vested the relator with the title in trust to this property. And as it was in his possession, or under his control, and he himself was liable to assessment, as a resident of the city of New York, the commissioners were right in making the assessment of it to him, for, under the statute, it could be made to no other person. The executor Duer had not the possession of the personal estate where he resided, neither had the executrix Hallgarten ; and it follows, if the relator could not be assessed, then this property will escape taxation. When the proceedings were before them, as they were upon his application and also on the application of the executor Duer, and it was made to appear to the commissioners that the assessment should be against the relator alone, they were authorized to correct the assessment in that respect by striking out the names of the two other executors. For, by section 820 of chapter 410 of the Laws of 1882, very general authority has been given to the commissioners to correct their assessments. It has not been restricted to a mere reduction of the amount.; but if, in the judgment of the commissioners, “the assessment is erroneous, they shall cause the same to be corrected and fix the amount of such assessment as they believe to be just,” etc. The authority delegated to them was to correct errors appearing to have intervened in the assessment, and as this assessment was shown to be erroneous, by including in it the names of the non-resident executors, .those names were very properly stricken out of it. By making this change, neither the assessment itself nor the liability of the relator was in any manner increased. It was still for the same amount, and whether lie himself shall be required to pay the tax, or it may be paid by him in eonj unction with the other two executors, will make not the slightest difference to the estate. For whoever may pay it, it will either be paid out of the funds of the estate committed to the charge of the executors, or the executor paying it will reimburse himself out of those funds. If that correction had not been made by the assessors themselves, this court could have made the correction under section 2141 of the Code of Civil Procedure upon the hearing of the writ of certiorari, and that would have left the assesment, as the commissioners did leave it, by their final action, and the court certainly could do no more than the commissioners should themselves do to correct an error in their proceeding.

The assessment which was made was accordingly right, and it should be affirmed, with costs.

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

Proceedings affirmed, with costs.


author:
Daniels, J.:
      Davis, JP. J.

text:
    JAMES B. CORBETT, Appellant, v. THE TWENTY-THIRD STREET RAILWAY COMPANY, Respondent.

      Regulation of a horse railroad company as to the return of money deposited in a fare box by mistake — when unreasonable — right of a person depositing it to retain a fare received from another passenger — liability of the company for the act of its driver in causing the a/rrest of a passenger.

    Tile plaintiff, on entering one of tile defendant’s cars, which was operated by a driver without a conductor, put into tlie box, used for that purpose, five fares for himself and three companions. Upon discovering his mistake and applying to the driver for the restoration of the excessive fare placed in the box, the driver refused to restore it, alleging that he had no authority to return the fare or correct the mistake, and directed the plaintiff to repair to the office of the company for his money. During a wordy altercation between the plaintiff and the driver, a lady entered the car and delivered her five cents fare to the plaintiff who placed it in his pocket. The plaintiff having refused to deposit the fare in the box, the driver, after the lady had reached her destination and left the car, removed the plaintiff from the car and delivered him into the custody of a policeman, who confined him in a station-house until the following morning, when he was discharged by the court.
    Upon an appeal from a judgment, entered upon an order dismissing the complaint made upon the trial of this action, brought to recover damages for an assault and false imprisonment:

      Held, that a regulation of the company requiring a passenger, who may be deprived of his money by his own mistake in this manner, to go to the office of the company for its reimbursement, and the correction of the mistake is entirely unreasonable. (Davis, P. J , dissenting.)

      Tliat the plaintiff was clearly entitled to a restitution of the money deposited hy him hy mistake in the box, and that it was entirely reasonable for him to retain the fare received from the other passenger, and thus reimburse himself for the money inadvertently placed in the box. (Davis, P. J., dissenting.)
    That, as the driver removed the plaintiff from the car, and placed him in the custody of the officer, under the authority conferred upon him for the man. agement of the car by the defendant, the latter became leg-ally liable to the plaintiff for the damages to which he, in that manner, had been subjected.
    That this liability included the entire injui-y and indignity to which the plaintiff was subjected, not only by his removal from the car, but by his subsequent imprisonment and detention in the station-house.
    Appeal from a judgment dismissing the plaintiff’s complaint on a trial at the New York circuit.

      Hermon R. Shook, for the appellant.

      O. E. Bright, for the respondent.
   Daniels, J.:

The cause of action set forth in the plaintiff’s complaint was for his assault and false imprisonment, occasioned by his removal from one of tbe defendant’s cars and his delivery by the driver into the custody of a policeman, and his detention in a station-house during the succeeding night. He was a passenger in the car, which was operated by the driver himself without a conductor. On entering the car he put into the box, used for that purpose, five fares, for himself and three companions. Upon the discovery of the mistake he applied to the driver for the restoration of the excessive fare placed in the box. This the driver refused, having no authority himself to return the fare or correct the mistake, and he directed the plaintiff to repair to the company’s office for his money. This resulted in a wordy altercation between the plaintiff and the driver, which continued to the time when a lady entered the car, who delivered her five cents fare to the plaintiff, which he placed in his pocket. The driver afterwards insisted upon the plaintiff depositing this fare in the box. That the latter declined to do, and after the lady had reached her destination and left the car the driver removed the plaintiff from it and delivered him into the custody of a policeman. When the matter'came before the court on the following morning the plaintiff was discharged. .The plaintiff was clearly entitled to a restitution of the money deposited by him by mistake in tlie box placed in the car to receive the fare of the passengers, and, as the driver himself was not authorized to return the fare, and in that manner correct the mistake, it was an entirely reasonable course to adopt for the plaintiff to receive the fare, which he did of the other passenger, and in that manner reimburse himself for the money inadvertently placed in the box. The regulation of the railway company requiring a passenger, who may be deprived of his money by his own mistake in this manner, to go to the office of the company for its reimbursement and the correction of the mistake is entirely unreasonable. As long as the car is placed under the charge and management of the driver, he should be, as a necessary part of that management, invested with authority to reimburse fares inadvertently placed in the box in this manner. The time to correct the mistake is when it may be made and discovered and the facts attending it fully known to the defendant’s agent. To require the passenger to go to the company’s office, which may be miles away from the place where the mistake may occur, and there establish his light to the reimbursement of the money, is so unreasonable in itself as to be exceeded only by a further regulation that when the money may be so deposited the party so depositing it shall forfeit all right to claim its return, for in most cases to go to the company’s office and there satisfy the officials of the right to the return of the money, and defray the expenses attendant upon the journey and submit to the necessary loss of time, would be no less than a serious aggavation of the injury itself. The officers would probably require the statement of the driver before they would feel justified in acting at all, and in that manner render necessary more than one journey and one hearing to recover the amount the passenger would be entitled to receive. The large majority of people would • prefer submitting to the first loss rather than enhance it, as they necessarily would, in endeavoring to obtain redress in this manner, and they should not be subjected, by the regulations or rules of the company, to any such risks and loss. As long as the company does not authorize the driver himself to rectify the mistake, it is no more than reasonable that the passenger should be at liberty to do so by receiving, for that purpose, the fare of any passenger after-wards entering the car. The driver, therefore, had no right, because of the refusal of the plaintiff to place this additional fare in the box, to remove Mm from the car. He was a wrong-doer, and his act in laying his hands upon the plaintiff for that purpose was an assault and battery fot which he might well himself have been indicted and punished.

But as he remove^ the plaintiff from the car and placed him in the custody of the officer, under the authority conferred upon him for the management of the car by the defendant, the latter became legally liable to the plaintiff for the damages to which he in that manner has been subjected, for, as the law has been settled, a railroad company is liable to the same extent as an individual for any injury done to a passenger by a person in the course of his employment who is in the service of the company. (Ramsden v. Railway Co., 104 Mass., 117; Higgins v. Watervliet Turnpike Co., 46 N. Y., 23; Hoffman v. R. R. Co., 87 id., 25; Flynn v. R. R. Co., 49 N. Y. Sup. Ct. [17 J. & S.], 81; Stewart v. Brooklyn and C. R. R. Co., 90 N. Y., 588.) And this liability will include the entire injury and indignity to which the plaintiff was subjected, not only by his removal' from the car, but by his subsequent imprisonment and detention in the station-house. (Rown v. Christopher, etc , R. R. Co., 34 Hun, 471.)

It has been urged, in support of the action taken at the trial, that the dismissal of the complaint was justified under chapter 186 of the Laws of 1880. But while there was evidence in a measure tending to prove disorderly conduct on the part of the plaintiff, it was controverted by his own testimony and that of other witnesses taken at the trial. Hpon that subject a question of fact was created by this state of the evidence which could only be legally solved by submitting the case to the jury. It was likewise in the same condition as to the charge made at the station-house against the plaintiff.

On his part it was affirmed that he had been charged with a larceny, for which, under the circumstances, there was no possible excuse. But on the part of the defendant it was averred that the charge was that of disorderly conduct. So far as it was material to settle the precise character of the charge in the disposition of the case, the evidence was such as required it to be submitted to the jury. In no view was it a case for the dismissal of the complaint.

The judgment should be reversed and a new trial ordered, with costs to abide the event.

Brady, J., concurred.

Davis, JP. J.

(dissenting):

I cannot concur with the views of ray brother Daniels in this case. Assuming that the plaintiff put the wrong amount of fare in the box, it was no fault of the driver that he did so. There was no evidence of it but the plaintiff’s assertion, but if that were true, the driver had no authority to correct the error. He had no access to the box, and could not return the deposited fare, and an attempt to do so by forcing open the box would have been unjustifiable on his part. As he was not permitted to receive fares he had no money of the company which he could use to correct the mistake. To clothe drivers. with power to refund for, alleged mistakes would subject the company to such frauds by collusion with claimants as would overturn all the safeguards adopted by the company to prevent the embezzlement of their fares by the driver or persons in collusion with him. A person who makes the mistake of depositing the wrong fare is responsible for the consequences of his own act, and is subject to all reasonable rales as to the mode of its correction. It is not unreasonable that he shall apply to the company, and not the driver. His carelessness brings this upon himself, and though it may be onerous to seek relief at the office, it is not unreasonable to require him to do so. But to hold that such a person, by reason of his mistake, is authorized to collect and keep the fares of other persons, is going altogether too far. It makes him judge, jury and executioner in his own case, a procedure which the law does not sanction. It would open a wide field for' fraud and larcenies if every person who makes or asserts a mistake on depositing his fare may at once collect from incoming passengers whatever amount he chooses to assert that he has paid. The thieves of the city would do a thriving and profitable business on the cars if such a practice were held lawful. Besides, the taking of another fare by such a person is not payment of the fare by the passenger. He or she is bound to put it in the box, and intrusting it to a stranger is not discharging the obligation of the passenger, and especially is that the case when the passenger knows that the stranger intends to keep it on his claim of overpayment of his own fare. Such a rule as the opinion asserts would lead to the great embarrassment of innocent persons whose fares happened to be captured by one who made a mistake, or claimed he had made a mistake, in depositing his own fare. The plaintiff in this case was guilty of a wrong in his attempting to rectify his mistake, if he had made one, in the manner he did. It led to the alleged arrest for which he was alone, to be blamed.

I think, also, if he were charged by the driver the next morning with larceny the company were not responsible for that act. The plaintiff was in custody for disorderly conduct. The company had nqt authorized the driver to make another charge on the following day, and were not responsible if it were done.

I think the judgment should be affirmed.

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


author: Daniels, J.:

text:
    SUSAN F. PLATT, Respondent, v. ANNIE R. PLATT, Appellant, Impleaded with Others.

      Beference to determine as to the existence of judgments or liens on funds arising from a sale in partition — when a judgment recovered against the executors of the owner will he paid therefrom — interest cannot he charged on an amount advanced from the estate to persons entitled thereto out of the share of such person in the proceeds of sale.

    After an order had been made appointing a referee, to take proof and report the respective amounts which the defendants were entitled to receive of the proceeds arising from sales in three actions of partition, a motion was mads for an order directing the referee to take proof of any liens that might be presented to him.
    It was stated, in the moving affidavit, that there were liens which it was desirable and advantageous to have proved and brought before the court, but no lien was particularized or described, nor were any facts disclosed indicating the existence of any claim whatever of such a description in favor of any person, or which should justly be included in the hearing before the referee in order to enable him to determine the rights of the .parties to the proceeds of the property.

      Held, that the motion was properly denied on account of the defective condition of the moving papers.
    Upon the application of one who had recovered a judgment, against the executors of the deceased owner of the land partitioned, upon a debt due from the deceased, and against a receiver of the estate appointed on the removal of the executors, the referee was empowered to inquire into the existence of such judgment.

      Held, that the court had power to direct this to be done.
    -Upon the hearing it appeared that the judgment had been recovered by one De Grauw, against the executors of Nathan O. Platt, the owner of the real estate partitioned, upon an indebtedness owing by the testator in his lifetime, and “that upon this judgment another judgment was recovered against a receiver of the estate appointed after the removal of the executors.

      Held, that as it appeared that there was no personal estate out of which the judgment could be paid, and that it was recovered upon a debt owing by the testator himself, it was equitably a lien upon his real estate, and upon the fund before the court, and that the creditor had the right to apply for the payment of the judgment out of the proceeds of this property, even though the judgment itself might not, under the statutes of this State, have become a lien upon the testator’s real estate.

      lEyde v. Tanner (1 Barb. 75), and Scott v. Guernsey (48 N. Y. 106) followed.
    In determining the respective shares which each of the parties was entitled to receive, the amounts which certain of the parties in interest had received from the estate, previous to the time of the reference, were added by the referee to the aggregate of the funds arising from the sales of the real estate in the three different actions of partition, and charged against the shares of the persons who received the same, with interest thereon from the time of its receipt down to the time of the date of his report.

      Held, that he erred in charging interest upon the amounts received, as there was no legal grounds upon which it could be computed or charged.
    Appeal by tbc defendant Annie It. Platt from two orders made on the 29th of May, 1886, denying an application for an order directing the referee to take proof of any liens that might be presented to him, and from an order directing the referee to take proof of judgments, and from an order confirming the report of the referee of the distribution of the proceeds of lands sold in three actions of partition.

      A. J. Vanclerpoel, for the appellant.
    Marsh, Wilson & Wallis and Edward 8. Clinch, for the respondent.
   Daniels, J.:

The parties more especially affected by the order, denying the application for an order to direct the referee to take proof of any liens that might be presented to him, are William K. Martin and his assignee, Edwin N. Martin. No such direction as was desired by these persons was contained in the order of reference, made for the purpose of ascertaining and determining the mode in which the moneys should be distributed, -which had arisen from the sale of the property affected by the actions in partition. The application for this order to extend the reference to any liens ■which might bo presented to the referee, was made upon an affidavit of William R. Martin, which failed to authenticate or establish the existence of any lien whatever in his favor, or that of any other person. It was stated in this affidavit that the reference was proceeding to report upon the distributive shares of the parties in the proceeds of the sales of the land, and that there were liens that it was desirable and advantageous should be proved and brought before the Court. No lien was particularized or described, neither were any facts disclosed indicating the existence of any claim whatever of such a description in favor of any person, or which should justly be included in the hearing bef®re the referee to determine the rights of the parties to the proceeds of the property. It was on this defective affidavit that the motion was made, and the court was entirely right in denying the order which was applied for because of this condition of the papers.

The other order of the twenty-ninth of May was made upon an affidavit showing that judgments had been recovered which should be considered by the referee in ascertaining the disposition which should be made of the funds arising out of the sale of the property. And the order of reference, on that affidavit, was so far enlarged as to empower the referee to inquire into the existence of such judgments. This order was sufficiently supported by the affidavit produced on the application for it as to render it regular and proper, and the direction which was made by it entered into the hearing before the referee. This order, like the preceding order, should therefore be affirmed.

The order confirming the report of the referee, and directing the distribution which should be made of the funds in court, presents the more important subjects of inquiry arising in this controversy. The fund to be distributed, with interest upon it, amounted to the gross sum of $237,366.07. It consisted of the proceeds of the sale of real estate in three different actions of partition, and as all the parties entitled to participate in the • funds were the same in each case, they were properly aggregated into one gross amount. The property which had been sold to produce this fund was lands owned in his life-time by Nathan C. Platt, and the persons entitled, as devisees under his will, and under the will of one of his sons, to the proceeds of this property were four in number. These persons, including two others, under whom two of the parties claimed had received amounts of money from the estate previous to the time of the reference and the order made confirming the report of the referee. The amounts which had been so received were added by the referee to the aggregate amount already mentioned, which still remained to be distributed. And in making such additions he seems to have proceeded with accuracy, and as he was directed by the judgment, for what had previously been received was a part of the testator’s estate consisting of so much of the share as each party remained entitled still to receive. . The other three parties do not contend that the referee erred in this respect. Neither has such a contention been presented in behalf of the appellant Annie K. Platt, so far as these amounts were brought into consideration to determine the distribution which should be made. The several amounts which had been distributed were ascertained and settled by a judgment in the Superior Court of the city of New York, wherein Catherine W. Cooke, one of the devisees of Nathan C. Platt was plaintiff and the other parties in interest and claimants were defendants, and to that extent this judgment appears to have settled the rights and obligations of the parties. But after charging against each one of the shares the amount received by the person charged, the referee proceeded to add to it interest down to the time of the date of his report. The aggregate sum so charged for interest against each of the shares very materially differed according to the amounts which had been received by the person charged, and that charged against the appealing defendant was about three times the amount of interest charged against either one of the other persons entitled to share in the division of these proceeds. This charge of interest was made on the sum of $60,830.90, which had been received by her husband William £L. Platt in his life-time, and under whose will she became entitled to his fourth of the proceeds of the property to be divided. The judgment settling the amounts which had been received by each of the claimants did not provide for the addition of interest upon the amounts which had been so received, neither could it have properly contained a direction of that description, for no indebtedness was created against either of these persons as the estate has turned out, and no obligation whatever existed to refund any portion of the moneys which had been received. These moneys represented so much of the property of Nathan C. Platt which these persons were entitled legally to receive, and they were paid to the different individuals as so much of the share which he or she was entitled to in this estate. And being payments made in that manner they presented no legal grounds upon which interest should be computed or charged. The moneys were to no extent to be returned either at that time or at any time in the future by either of these persons. They may have been subject to the contingency that portions might be recalled if they proved to exceed the shares of the persons receiving the moneys, but no such contingency has appeared. On the other hand, the moneys received by each of the individuals were less in amount than their distributive shares of the proceeds of the testator’s property. There was, accordingly, no basis upon which either of these persons should be charged with interest iii this manner. And as the interest charged against the appealing defendant, Annie R. Platt, so largely exceeded the interest charged against either of the other persons, this addition of interest secured to them advantages over her which they were not entitled to enjoy in the distribution of these proceeds. To the extent of about $10,000, the three other persons were benefited by this computation, which led to a charge against the appealing defendant to about that amount, over and above what should have been made against her. This will become more obvious by adding the several amounts which had been received upon the four shares in the estate to the proceeds of the property now to be distributed, and dividing that into four equal parts. These parts will represent the extent of the interest of each of the four parties in this estate, securing to the appealing defendant neai-ly $10,000 over and above the amount awarded as her share. And to this extent the order confirming the referee’s report and directing a distribution upon the basis of his computation, including these several interest charges, is erroneous and it should be modified accordingly. This modification can well be made by adding the several amounts necessary to show the principal of the estate to the sum now to be distributed, and then dividing that sum into four equal parts and from the part devised to William H. Platt, deducting the charges made against his widow, Annie B. Platt, after excluding this interest charge of $15,270.81 contained in the referee’s statement of account, and the order should be so modified.

Under the direction given to the referee to inquire as to judgments against the property it was proved before him that a judgment had been recovered by Aaron J. De Grrauw against the executors of Nathan C. Platt, upon an indebtedness owing by him in his life-time. They were removed from their offices by a judgment or proceeding taken partly for that purpose, and James M. Smith was appointed the receiver of the estate, and upon the judgment recovered against the executors another judgment was recovered against him as receiver. This was for the sum of $24,414.02 from which, by the application of another demand, the sum of $11,858.28 was deducted, leaving unpaid upon the judgment the sum of $15,651.33. One-quarter of this judgment was charged against the share of Annie B. Platt in the proceeds of this property, and that has been complained of as an erroneous direction sanctioned by the referee and approved by the final order. The correctness of this determination has been questioned upon the ground that the -judgment could not be made a charge upon the proceeds of the estate otherwise than by proceeding against the persons receiving such proceeds as devisees. But this objection does not seem to be entitled to be sustained, for it was one of the objects of the court to determine what judgments existed which should be paid out of the fund before it was distributed. And while it has been suggested that the appealing defendant might have legal grounds for contesting the right of the judgment creditor to payment, no such proof was either given or offered upon the hearing before the referee. If there were any legal objections to the payment of the judgment, there was not the slightest obstacle in the way of presenting them upon the hearing before the referee. But no effort was made on that hearing to impeach the judgment or to show that the claimant of the balance remaining unpaid upon it was not entitled to the money.

It was not made to appear that any personal estate of the testator, Nathan C. Platt, remained undistributed, and the facts appearing are such as to justify the conclusion that no such estate did remain, for the fund now in court appears to have been assumed to be all that was left to dispose of in this proceeding. And as there is no personal estate out of which the judgment could be paid, and it has been recovered upon a debt owing by the testator, Nathan C. Platt himself, it was equitably a lien upon his real estate and the fund now before the court representing it. A point of this nature was considered in Hyde v. Tanner (1 Barb., 75), where the fight of a creditor having such a demand to follow the real estate of the testator was maintained by the court. And that case does not seem to have been questioned or impaired in its authority by any determination since made upon this subject. Under the rule which it maintains the creditor had the right to apply for payment of the judgment out of the proceeds of this property, even though the judgment itself might not, under the statutes of this State, have become a lien upon the testator’s real estate. The debt itself was so chargeable without reference to the provisions of the statute cited in support of this part of the appeal, and the court was right, having equitable authority in the action, in providing for its payment as that was done by the order. (Scott v. Guernsey, 48 N. Y., 106.)

It was proposed to be proved upon the hearing before the referee that William It. Martin, as attorney in the action brought for the recovery of the property, had become entitled to one-half of the amount to be distributed. The referee rejected this proof, and in that he seems to have been justified by the refusal of the court in one of the orders now appealed from to direct the referee to inquire into the existence of any such lien. Beyond that the judgment in the case of Cooke v. Platt and others was produced and proved before the referee. In that action this claim of William It. Martin was considered, and it was determined by the court to have no legal existence, and for that reason likewise the referee was right in rejecting the proof offered to maintain the existence of this asserted lien or agreement. Neither in this respect, nor in any other except that which has already been considered, does the referee appear to have erred in the conelusions arrived at by him. The final order should be modified by directing the shares of the appealing defendant to be ascertained by excluding the interest charges made and contained in the referee’s report, against the amounts received by each of the four persons interested in this estate. And her share should be ascertained and declared according to the amount chargeable against herself and her husband, excluding this item of interest. And as so modified, this order should be affirmed without costs, but as to the other two orders from which appeals have been taken, they should be affirmed with the usual costs and disbursements.

Dayis, P. J., and Brady, J., concurred.

Orders denying applications for orders directing the referee to take proof, etc., affirmed with ten dollars costs and disbursements; and order confirming the referee’s report modified as directed in opinion, and as modified affirmed without costs.


author: Daniels, J.: Davis, P. J.:

text:
    WILLIAM M. KINGSLAND, as Surviving Trustee, etc., Plaintiff, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK and Others, Defendants.

      Submission of a case upon agreed facts— Qode of Omil Procedure, sec. 1279 — power of the court to amend the agreement as to the relief to be granted — when the power will not be exercised.

    A case having been agreed upon and submitted to the court, under the authority of section 1279 of’the Code of Civil Procedure, a judgment was ordered in favor of the plaintiff for the recovery of damages because of the unlawful interference of the defendants with the plaintiff’s property, consisting of a bulk-head and wharf fronting upon the Hudson river, pursuant to a provision in the agreement defining the relief to which the plaintiff would be entitled if successful. After this decision had been made, and the judgment had been entered upon it, it was stated that the Court of Appeals had decided that the owners of the wharf were entitled to the structure erected in front of it by the city, thereby extending their water front so much further into the river.

      Held, that a motion, made by the plaintiff to amend the claim for relief in the case submitted, so as to secure to him the benefits of this decision by awarding to him the possession of the additional structure itself, instead of damages for the act of the defendants, should be denied, as it would not be a provident use to make of any power which the court might possess, to grant such amendments, to interfere with and change this part of the agreement, after the case itself had been heard and decided, and the rights and obligations of the parties had been declared and defined by the judgment which has been entered. ^

      It seems, that the court had no authority to change that part of the agreement made by the parties, as to the relief which should be awarded to the plaintiff, in case it should be held that he was entitled to recover. {Per Daniels and Brady, .1J.)

      Motion by the plaintiff to amend the claim for relief in a case submitted upon an agreed state of facts.

      W. W. MaoFarla/nd and Stewart & Boardman, for the plaintiff.

      James O. Carrier and F. Henry lacombe, for the defendants.
   Daniels, J.:

' The case was agreed upon and submitted to the court under the authority of section 1279 of the Code of Civil Procedure. It was argued by counsel and after being considered by the court a judgment was ordered in favor of the plaintiffs under the agreement made a part of the case defining the relief to which the plaintiffs, in the event of their success, would be entitled. And that was for the recovery of damages because of the unlawful interference of the defendants with the plaintiffs’ property, consisting of a bulkhead and wharf fronting upon the Hudson river. Since this decision was made, and the judgment has been entered upon it, the Court of Appeals have decided, in the case of Steers v. City of Brooklyn (101 N. Y., 51), that the owners of the wharf are entitled to the structure erected in front of it by the city, and thereby extending their water front so much farther into the river. And the object of the motion is to secure to the plaintiffs the benefit of this decision by awarding to them, instead of damages for the act of the defendants, the possession of the additional structure itself. The right to this relief was not placed in controversy by the case agreed upon between the parties, but it was expressly limited to that of damages for the interference of the defendants, by which the water front of the plaintiffs’ property was destroyed, by reason of the structure erected in front of it by the defendants. The authority conferred upon the court over the subject-matter of the action was defined and limited by this agreement of the parties. It was to award to the plaintiffs, in case of their success, remuneration by way of damages, and no other or different relief. And it may very well be if the relief, which is now the object of the motion, had been insisted upon, that the defendants would not have submitted the case by agreement to the judgment of the court. But whether they would or not, inasmuch as the parties by their well considered and deliberate agreement, have limited the court in the relief which should be awarded, to that of compensation by way of damages, it probably has no further control or authority over the controversy than that which they have in this manner specified and declared. They have agreed upon the facts of their case, and declared the relief which should be awarded if those facts entitled the plaintiffs to redress. In Fearing v. Irwin (55 N.Y., 486) it was held, in submissions of this description, that the court is confined to the facts agreed upon, and can make no inferences of in any way depart from or go beyond the statement presented. And that would seem to be the just construction required by the acts of the parties in the submission of controversies in this manner.

It is true that by section 1280 upon filing the submission the controversy becomes an action in the court to which the provisions of the law relating to proceedings in actions aré subsequently applicable. But this section was not designed to confer upon the court the power to change the agreement of the parties, but only that of conforming to the provisions applicable to proceedings in actions in the determination and disposition of the controversy. As the facts are- now presented the court has probably no authority to change the part of the agreement made by the parties as to the relief which should be awarded to the plaintiffs in case it should be held they were entitled to recover. But if it had the authority, it would not be a provident use to make .of it to interfere with and change this part of the agreement, after the case itself had been heard and decided, and the rights and obligations of the parties have been declared and defined by the judgment which has been entered.

In the case of Henry K. S. Williams v. The Mayor, etc., of the City of New York a like motion has been made depending upon a similar state of facts, and as it should not be allowed to prevail in the case of Kingsland and others, it follows that it should not in the case of Williams.

The motion should be denied, with the usual costs.

Brady, J., concurred.

Davis, P. J.:

I concur on the ground that it would be an inj adious exercise of discretion to exercise the power of amendment under the circumstances of this case.

Motion denied, with ten dollars costs.


author: Daniels, J. :

text:
    THE CENTRAL TRUST COMPANY OF NEW YORK, Appellant, v. THE NEW YORK CITY AND NORTHERN RAILROAD COMPANY, Respondent, Impleaded with GEORGE S. SCOTT, Appellant, and Others, Respondents.

      Practice — power of the court to order a reference to talce testimony as to facts and to refuse to enter an interlocutory judgment — such an order is a/ppealable— Code of Civil Procedure, see. 1347, sub. 4.
    In this action, brought to foreclose a mortgage given by the defendant railway company to secure an issue of bonds, amounting to the sum of $4,000,000, the right of the plaintiff to this relief was resisted by the railway company and other defendants, who denied the legal validity of the bonds. Upon a trial of the issues raised by the pleadings, the court concluded that the bonds had been unlawfully issued, and that they were voidable at the election of the railway company, with the exception of those which had passed into the hands of holders for value, without notice, and made an order of reference directing the referee to inquire who were the holders of the bonds in controversy, and for what they had been acquired and what consideration had been paid for the bonds by their present or preceding holders.

      Held, that an objection to the order, founded upon the claim that the court, having reached the decision that it did, should have directed that an interlocutory judgment be entered embodying findings of fact and law which might be reviewed by the parties by way of an appeal or a motion for a new trial, should not be sustained, as the system of practice now existing did not require that an interlocutory judgment should be entered as the result of such a decision, but permitted the court to hear the case fully and completely and determine the same by a final decree..
    That the order affected a substantial right, and was reviewable upon the merits upon an appeal taken under subdivision 4 of section 1347 of the Code of Civil Procedure.
    Appeal from an order directing a reference and denying an application for a settlement of a case and exceptions, and the making of findings of fact and law, and also a motion by the respondent to dismiss the appeals.

      William Allen Butler, Julien T. Davies and Edward Lyman Short, for the appellants.

      Jamies G. Garter and Lewis Gass Ledyard, for the respondents.
   Daniels, J. :

The action was brought to foreclose a mortgage given by the railway company, upon its property, to secure an issue of bonds amounting to the sum of $4,000,000. The right of the plaintiff to this relief was resisted by the railway company and others contesting the legal validity of the bonds. The result of the trial of the issues, including these subjects, was the conclusion of the court that the bonds had been unlawfully issued, and that they were voidable at the election of the railway company, with the exception of those which had passed into the hands of holders for value, without notice. After reaching this conclusion, the order of reference was made directing the referee to inquire who were the holders of the bonds in controversy and for what they had been acquired, and what consideration had been paid for the bonds by their present or preceding holders. Other subordinate directions were given, but it was for the object of more especially and fully obtaining information upon these subjects that the reference was ordered. This order of reference has been resisted on the ground that when the court reached the decision that it did, an interlocutory judgment should have been entered, embodying findings of fact and law which might be reviewed by the parties, by way of an appeal or a motion for a new trial. But the system of practice now existing has not required that an interlocutory judgment shall be entered as the result of such a decision. Neither was the practice mandatory in this respect, as it previously existed in courts of equity in this State, for they were at liberty to hear the case fully and completely and determine it by a final decree; or, which was the more ordinary system followed, to direct an interlocutory decree, when that should be proper, providing for further proceedings to ascertain details for the relief before a master. The jurisdiction of the court sanctioned either one of these two proceedings, as they might be deemed the most practical or advisable. And the present system of practice has made no change in this respect in trials of issues of fact in equity actions, for it contains no direction that an interlocutory judgment shall be entered upon the determination of the court as to the controlling rights of the parties in the litigation. The Code has been framed in such language as to permit, without requiring, an interlocutory judgment, and to provide for exceptions to be presented and filed and a review to be had, either by way of appeal or a motion for a new triai; and these provisions will be found to this effect in sections 1200, 1349, 1001 and 1231. But even such an appeal or motion is not indispensable for the review of the judgment, for that may be had upon an appeal from the final judgment, when the intention to review, on such appeal, the interlocutory judgment, shall be expressed in the notice. (Code, §§ 1230, 1301, 1316 and 1350.)' But neither of these sections has been so framed as to require an interlocutory judgment to be entered in the action in which a trial may be had before the court or a referee; but they, at most, regulate the practice authorized to be pursued when such a judgment shall have been entered in the action. The mandatory provisions, directing that a report shall be made and filed, relate only to the determination of the whole issue, and they are contained in section,1012 and subdivision 3 of section 1221. Such a report or decision, then, becomes indispensible for the determination of the controversy in the action.

That it was not intended to be obligatory upon the court to make and fiie this decision before the final determination of the action, is further evident from the latter portion of section 1013 of the Code, which permits the court, of its own motion, in an action triable without a jury, to direct a reference to a referee to report his finding upon one or more specific questions of fact involved in the issue. That must necessarily be done before the complete decision of the action, and it is after that, and when the remaining issues in the case have been tried, that it has provided by section 1226 for the entry of the judgment. And the reference ordered in this case seems to be within the language of this section.

By section 1015, also, the court has been authorized, of its own motion, to direct a reference to take an account, either after an interlocutory or final judgment, or when it is necessary to do so for the information of the court. And under this authority this reference seems to have been directed, and that was suggested as correct practice in Camp v. Ingersoll (86 N. Y., 4:33) This authority, it is true, is restricted to the taking of an account, but this language includes more than the mere adjustment of items, charges, credits and figures. It permits inquiries to be made in this manner where details are to be obtained and settled, and such was the practice which has been followed in courts of equity-story’s Eq. Jur. [5th ed.], §§ 441, 453.) In the last of these sections it is stated that “In virtue of this general jurisdiction in matters of account, courts of equity exercise a very ample authority over matters apparently not very closely connected with it, but which, naturally, if not necessarily, attach to such jurisdiction.” What the court required in this case was a statement of the bpnds which the railway company had attempted to issue under the mortgage, and that was, strictly speaking, a matter of accounting, as inquiries of this nature have been set on foot and followed in courts of equity. And, as incidents of that accounting, it was within the authority of the court to direct proof to be taken as to the manner in which the bonds had passed into the hands of the parties holding them, and the consideration for which they had been taken. The inquiry as to all these subjects was, within this broad authority, allowing a court to direct a reference to take the account. The plain object was to furnish the data upon which the details of the action might be determined, and when the report of the referee shall be made and heard; that, as well as his conclusions, are subject to be reviewed, corrected or set aside, as the case may require, under the authority of section 1232 of the Code.

To enable the referee intelligently to take proof upon, and hear and report concerning the subject of the reference, no other statement of that subject was required than that which was contained in the order. An interlocutory judgment was not necessary for this purpose. The action still remained before the same court, although the proof .upon the essential issues, as the pleadings presented them, had been concluded, and the court on that part of the case had reached what was considered a final decision. Rut it was not in a condition finally to determine, or declare, the particular rights of the parties. This further information to be sought through the intervention of a reference, was to complete the trial, and when it shall have been obtained, the court will be in a condition to proceed and determine the case by a final judgment. And before that can be entered conclusions of fact and law will be required to be settled and filed, presenting what shall be deemed to, be the results of the evidence and the rights and obligations of the parties. And it will facilitate this determination to obtain the proof and report contemplated by tbe order, and place the action in a condition in which upon an appeal all the questions arising in it, may be finally decided, and the rights of the parties fixed and determined.

If an interlocutory judgment had been provided for, no more than this would have been accomplished through its intervention, for the ultimate and final decision of the action would, if the views of the trial coui’t should be sustained, still await the hearing and accounting directed by this order.

The order does affect substantial rights in the action. And it is the subject of an appeal under subdivision 4 of section 1347 of the Code of Civil Procedure. And while it was regular for the court to make the order within the authority of the sections of the Code already mentioned, it is still reviewable under this subdivision and subject to correction if the inquiries directed by it should be held to be broader than the court had the power to give. Whether the decision made by the court upon the effect of the evidence produced before it is erroneous, or not, is not now to be considered. That subject has not been discussed by the counsel, but the suggestion has been made on behalf of the plaintiff that a day should be assigned for an argument of the merits of the controversy; and if that is still to be insisted upon by the counsel, the case may yet, as the order is appealable, be brought before the consideration of the court for the determination of the questions arising upon the evidence. But probably the more judicious course of proceeding will be to complete the hearing before the referee and then bring up these questions for review after final decision and judgment shall have been entered. For the present, however, it will be sufficient to hold that the reference was authorized, if the court was warranted in the conclusions upon which the order proceeded. The parties affected by the order were entitled by their appeal to bring it before the court for its consideration and decision; but to avoid any conclusive effect from it hereafter, the order should be modified, declaring that the reference is without prejudice to the consideration of any questions arising upon the trial whenever any legal action shall be taken for their review in the subsequent progress of the litigation. With this modification the order of reference, as well as that denying the application for findings of fact and law, should now, subject to the plaintiff’s right to bring on the merits of the appeal, be f affirmed, and the motion made to dismiss the appeals should be denied, without costs to either party.

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

Order modified as directed in opinion and affirmed as modified without costs, and motion to dismiss appeal denied without costs.


text:
    In the Matter of the Guardianship of ANNIE C. KING and Others.

      Proceedings for the removal of a guardian — may be commenced by a petition — the Supreme Court has power to remove a testamentary guardian.

    This proceeding was instituted by a petition presented by an executor of the will of E. E. B. King, deceased, to have the testamentary guardian of the infant children of the deceased removed, upon the ground that the guardian was not a competent and proper person to have the care and custody of the children.

      Held, that an objection that the proceedings could not be lawfully commenced by petition, but that they should have been commenced by the service of a summons, was not maintainable.
    That the further objection, that the Supreme Court had no authority to remove a testamentary guardian, was equally incapable of being maintained.
    That as the court had the authority to deprive a parent himself of the custody of his children, where that was proven to be necessary for their benefit, it must certainly be equally authorized to remove a guardian who derives his or her authority wholly from the parent.
    Appeal by Phoebe F. Fullerton, testamentary guardian, from an order confirming the report of. a referee and removing her from her guardianship of Annie C. King and others.

      Christopher Fine, for the testamentary guardian, appellant.

      Joshua M. Van Cott, for the petitioner, Donald Mackay, Executor of Elizabeth R. B. King.
   Daniels, J.:

The proceedings were instituted by a petition presented by Donald Mackay, an executor of the will of Elizabeth R. B. King, the mother of the infants, who by her will appointed Phoebe Fullerton, the appellant, for their testamentary guardian. The objeetion has been taken in the outset that the proceeding could not be lawfully commenced by petition, but that it should have been done by a summons, the process provided for commencing an action at law, or in equity. But the practice in this class of cases has been to proceed in a summary manner by petition, and it does not appear to have been intended to be dependent upon or restricted to the ordinary proceedings in an action. It has been urged that the case of Livingston (34 N. Y., 555), proceeded upon a principle adverse to this practice, but while the subject of the right to proceed by petition was there considered, it was not held or decided that this course of practice was improper. The general principle relating to it was on the other hand mentioned with approval, and that allows a petition to be presented in any matter “ over which the court has jurisdiction by some act of the legislature or other special authority.” (Id., 569.) And to the same effect is 2 Barb. Ch. [2d ed.] 579, note 2; and as the proceeding has been described in Wilcox v. Wilcox (4 Kernan, 575), a petition would be the proper mode for commencing it. The proceeding has been commenced by a petition under the latter branch of the rule just mentioned, as that has been provided for and sanctioned by the special authority of the court. It is not an action as that has been defined, for the reason that it is not necessarily brought to maintain or enforce a right of the petitioner, or to redress a wrong suffered by him, which are the objects of actions prosecuted in courts of justice. Strictly what an action may be now. designated to be has not been defined in the present Code of Civil Procedure. What it contains on this subject is the statement made in subdivision 20 of section 3343, and that is, that the word action refers to a civil action, which is no more intelligible than many other portions of this code. The preceding Code by subdivision 2 of section I was more clear and explicit in its definition, and that defined an action to be a regular judicial proceeding in whicli a party prosecutes another for the enforcement or protection of a right or the redress or prevention of a wrong, and declared every other civil remedy to be a. special proceeding. .This definition was clear and apt and entirely consistent with the preceding as well as subsequent understanding of the distinction between an action and a special proceeding.

This proceeding lias not been brought for the protection or enforcement of any right of the petitioner, or to redress any wrong sustained by him, but to inform the court of the existence of certain facts upon which the exercise of its paternal authority has been invoked in behalf of these infants. That authority is well established as a fundamental element of the law, and it requires the court, whenever a proper case may appear for that purpose, to interfere for the protection and welfare of infant children. It does not require, to be set in motion, that the party supplying the information shall disclose an injury to himself, or that any right he may be entitled to enjoy is in danger of being put in jeopardy. What he is required to do is to inform the court of such a state of facts as will render it evident that it should interpose for the protection of persons dependent upon it, as infants are, and when that information is supplied it is the court which acts and directs the proceedings found to be necessary to fully inform itself and indicate what action in the premises may appear to be proper. And this is one of the peculiar proceedings not originating in any legislative act, but prescribed and followed by the court as the best adapted to the necessities of such cases. The case is of such a description as ordinarily to require summary action, free from the intricacies and delays of an ordinary suit, and that it is the appropriate mode through which this action of the court is to be obtained is evident from this being the course of proceeding ordinarily taken for this purpose. The fact that actions are not resorted to for the purpose of inquiring into the conduct, competency or character of guardians is a strong argument against the correctness of the objection which has been urged upon this subject by the counsel for the appellant. Both principle and practice sanction this course of proceeding, and this objection must be still held, as it already has been, to be untenable.

The further objection that the court has no authority to remove a testamentary guardian is equally incapable of being maintained, for in the exercise of its authority it has often interposed to divest the parent himself of the custody of his child or children, where that may be proven to be necessary for their benefit. (Matter of Watson, 10 Abb. N. C., 215; Matter of Waldron, 13 Johns., 418; People ex rel. Brush v. Brown, 35 Hun, 324.) And as long as the court has the authority of depriving the natural guardians of the custody of their children, it certainly must be equally authorized to remove a guardian deriving his or her authority wholly from the parent. For it follows that the parent must be incapable of delegating any more complete or irrevocable authority than he or she can be held to possess. The rule upon this subject has been broadly stated in 2 Story’s Equity Jurisprudence ([5th ed.], § 1339), to include all guardians, testamentary, as well as those otherwise appointed. And while the cases referred to, in support of the proposition, do not nominally include a testamentary guardian, the principle maintained by them is so broad as not to justify an exception to its operation in his or her favor. The object and purpose of the interference of the court is to secure the safety and promote the welfare of the children themselves, and wherever it becomes necessary for these objects to interpose, the custody and care of infants will, in all cases, be provided for as that can best be secured. For these purposes it has been rightly said “ that the court interferes with the ordinary rights of parents as guardians by nature, or by nurture, in regard to the custody and care of their children. For though, in general, parents are intrusted with the custody of the persons and the education of their children; yet this is done upon the natural presumption that the children will be properly taken care of and will be brought up with due education in literature and morals and religion; and that they will be treated with kindness and affection. But wherever this presumption is removed: whenever, for example, it is found that a father (for example) is guilty of gross ill-treatment or cruelty towards his infant children, or that he is in constant habits of drunkenness and blasphemy, or low and gross debauchery, * * * or that his domestic associations are such as tend to the corruption and contamination of his children, or that he otherwise acts in a manner injurious to their morals or interests; in every such case the Court of Chancery will interfere and deprive him of the custody of his children, and appoint a suitable person to act as guardian and take care of them and superintend their education.” (2 Story’s Eq. Jur. [5th ed.], § 1341.) And in its general bearing and extent the same principle is recognized and approved in Matter of Welch (74 N. Y., 299); and it follows from this ample authority of the court to deprive the parent of the custody of his children, where that may be found to be necessary for their protection, education and maintenance, that it may also deprive a testamentary guardian of such custody. * * *

[The judge then reviews at length the evidence and facts established thereby, and reaches the conclusion that the order of the court below, removing the guardian, should be affirmed.] Rep.

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

Order affirmed, without costs.