author: Haight, J.

text:
    In the Matter of the Estate of Samuel C. Harriot, Deceased.

      (Court of Appeals,

      Filed April 9, 1895.)

    2. Appeal—Appealable order.
    An order of a surrogate’s court, fixing the fees of appraisers of the estate of a decedent, is appealable.
    2. Tax—Transfer—Fees of appraisers.
    Under chap. 325 of 1873, as well as under § 2711 of the Code, as amended in 1893, the fees of the appraisers must be adjusted by the surrogate before the executor or administrator is required to pay them.
    8, Same.
    In such case, the discretion of the surrogate is limited to five dollars for each day actually and necessarily occupied by the appraisers.
    4. Same.
    Appraisers have no right to demand or receive more than the statute allows, however large the estate may be, unless the parties interested consent.
    5. Appeal—Court of appeals—Facts.
    Where the evidence, which appears to be in conflict, is nothing more than a mere scintilla, or where it is met by well-known and recognized scientific facts about which there is no conflict, the court of appeals will still exercise jurisdiction to review and reverse, if justice requires.
    Appeal from order of the general term of the supreme court in the first judicial department, which affirmed an order of the surrogate’s court of the county of New York denying a motion to vacate and set aside an ex parte "order of said surrogate fixing the compensation of two appraisers of the estate of Samuel 0. Harriot, deceased.
    A. C. Brown, for app'lts; R. E. Robinson, for resp’t.

      Reversing 63 St. Rep. 871.

   Haight, J.

It appears that the New York Life Insurance and Trust Company had been appointed the executor under the last will and testament of Samuel 0. Harriot, deceased, and as such had commenced an action in the supreme court to have its accounts as such executor adjusted and settled; that objections had been taken by the appellants to certain items of the account presented by the executor, among which was an objection to the items paid to the appraisers for their services; that thereupon a reference was ordered to hear and determine the matters in controversy, and pending the hearing before the referee the attorneys for the executor appeared before the surrogate, and upon the affidavits of the appraisers and their own stipulation as the attorneys for the executor procured an order taxing the fees of the appraisers at the sum of $250 each. The order so procured from the surrogate was then introduced in evidence before the referee. Thereupon the appellants, upon notice to the executor and the appraisers, moved in the surrogate’s court for an order vacating the order taxing the fees of the appraisers, which motion was denied. This order having been affirmed in the general term is now brought to this court for review.

It is contended on behalf of the executor that the appellants had no standing in the surrogate’s court; that they were not entitled to notice of the application to tax the appraisers’ fees, and that conseqently they had no right of appeal to review the order there made. We are unwilling to adopt this view. The appellants are the parties interested and finally have to bear the burden of the expenses incurred by the executor. The order was a final order and affects a substantial right. An appeal from such an order is authorized by sections 2570 and 190 of the Code of Civil Procedure. Ordinarily it may not be necessary for the next of kin or legatees to have notice of the taxation of the fees of the appraiser by the surrogate. For, under the provisions of the statutes and the Code, it was contemplated that such fees should be adjusted by the surrogate before payment by the administrator or executor. When so adjusted the executor or administrator, whichever it may be, is deemed to represent the interests of the estate, of the next of kin and of the legatees.

Under the Laws of 1873, chapter 225, it is provided that, “upon the application of any executor or administrator, the surrogate who granted letters testamentary or of administration shall, by writing, appoint two disinterested appraisers as often as occasion may require, to estimate and appraise the personal property of a deceased person, and such appraisers shall be entitled to receive a reasonable compensation for their services, to be allowed by the surrogate, but not exceeding for each appraiser the sum of five dollars for each day actually employed in making an appraisement or inventory, in addition to his actual expenses necessarily incurred, the number of day’s services so rendered and the amount of such expenses to be verified by the affidavit of the appraiser performing such services, to be made and delivered to the executor or administrator before payment of such fees, and to be adjusted by the surrogate.” In 1893 section 2711 of the Cods of Civil Procedure was amended so as to provide that the number of days of services rendered, and the amount of expenses incurred by the appraisers “must be verified by the affidavit of the appraisers, delivered to the executor or administrator, and adjusted by the surrogate before payment of Ms fees,"

With respect to the question under consideration the provisions appear to be substantially the same. Under the Code the fees must be adjusted by the surrogate before payment. In the statute the phrase “to be adjusted by the surrogate,” appears after the words “before payment of such fees.” But the phrase clearly relates back to that which precedes the words quoted, and contemplates the adjustment of the fees by the surrogate, before the administrator or executor is required to pay. But in this case the appraisers never procured their fees to be taxed. They were paid by the executor at or about the time that they completed and de-* livered over the inventory. The executor waited until after the estate had been settled, an action to have its accounts adjusted brought, and the trial of that action commenced before it took any steps to have the fees of the appraisers adjusted. At that timé it was acting in its own interest to secure the audit and allowance of its own claim, and without stopping to consider whether the trust company could, at that time, upon its own motion and its own stipulation, properly procure an order taxing the fees of the appraisers, we are clearly of the opinion that the legatees had the right to be heard, either upon the original application or by an affirmative motion to vacate.

We are thus brought to a'consideration of the motion upon the merits. It appears from the moving papers that the inventory contains a list of the furniture in the residence of the deceased, and that the same was appraised in a lump sum at $2,940.40; that this list was made out by one Be Waltearss, who put the value upon the articles and was paid the sum of $86.22 for his services ; that the counsel for the appellants filled out the inventory with the exception of the securities and cash which was prepared by the executor, the trust company, or its attorneys, or that the appraisers had nothing whatever to do except to see that the furniture was in the house and compare the list of securities with the securities themselves and ascertain their market value. Aside from the furniture and the items of cash on hand, the estate consisted of twenty-seven different kinds of securities, chiefly railroad and corporate stocks. The motion papers further show that the market value of the securities could have been ascertained by a visit to the New York Stock Exchange or to the office of any stock broker, in a single day’s time, and that the charges for appraisers’ fees were grossly exorbitant. No affidavits appear to have been read in opposition to the motion, controverting these facts. The surrogate, however, appears to have considered the affidavits of the appraisers presented upon the original motion for taxation as before him and upon them to have held that it appeared that they each had been employed more than fifty days upon the appraisal, and that he could not state, from an inspection of the inventory, that their statements were improbable. We are unable to agree with him. Section 2565 of the Code of Civil Procedure provides that “an appraiser is entitled, in addition to his actual expenses, to a sum to lie fixed by the surrogate not exceeding $5 for each day actually and necessarily occupied by him in making the appraisal or inventory, the number of days’ services and the expenses, if any, must be proved by the affidavit of the appraisers and the sums payable therefor taxed by the surrogate and paid by the executor or administrator.”

It will be observed that the discretion of the surrogate is limited to $5 for each day actually and necessarily occupied by the appraisers. Beyond that amount he has no discretion. He is required to ascertain the number of days actually and necessarily occupied by them. This fact is to be found by him and should be determined from the evidence presented. He has found that the appraisers were each actually and necessarily occupied fifty days. Is this finding correct ? Ordinarily, questions of fact and questions as to the weight of evidence are final in the general term and this court has no power to review the determination of that court with reference thereto. But we have recently held that “where the evidence which appears to be in conflict is nothing more than a mere scintilla, or where it is met by well-known and recognized scientific facts about which there is no conflict, this court will still exercise jurisdiction to review and reverse if justice requires. Hudson v. R., W. & O. R. R. Co., 145 N. Y. 408; 64 St. Rep. 843; see, also, People ex rel. Coyle v. Martin, 142 N. Y. 352; 59 St. Rep. 24; Hemmens v. Nelson, 138 N. Y. 517-529; 53 St. Rep. 94; Linkauf v. Lombard, 137 id. 417 ; 51 St. Rep. 63.

Should a person affirm that black was white or white was black, or being in the full possession of his faculties, and having the unrestricted use of his limbs, should testify that he actually and necessarily occupied a year in walking a mile, his statements would be so in conflict with recognized possibilities as to be entitled to no credit or character as evidence.

As we have seen, the inventory was prepared by others. The only thing left for the appraisers to do was to examine the furniture, compare it with the list made, examine the securities entered in the inventory and attach thereto the values which could have been ascertained in a day's time in any stockbroker’s office in the city of New York. Upon these undisputed facts we cannot sustain the finding that the appraisers each actually and necessarily occupied fifty days in making their inventory.

It appears that this estate was valued at nearly $300,000. It was considered large and a custom may have prevailed to some extent to make liberal allowance for services performed with reference to such estates; but appraisers are officers of the court, appointed by it and their fees are regulated by statute. It makes no difference whether the estate is large or small. They have no right to demand or receive more than the statute allows, unless the parties interested consent, and if a different custom has prevailed it should be discontinued.

Whether the surrogate should entertain jurisdiction to tax the appraisers’ fees pending a trial of the action in the supreme court we do not now determine.

The order appealed from should be reversed and the motion granted, with costs in all courts.

All concur.

Ordered accordingly.


source: Caselaw Access Project

author: Brown, P. J.

license: Public Domain

text:
    Charles H. Slocum, App’lt, v. Walter D. Gilman, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    Pbtncifal and agent—Ratification.
    An agreement, made without authority by a person purporting to act as an agent, is not ratified by a subsequent statement of the alleged principal that the agreement was all right.
    Appeal from a judgment, entered on a verdict by the court in favor of defendant, and from an order denying a motion for a new trial, made on the minutes.

      John Elton Wayland, for app’lt; William M. Benedict, for resp’t.
   Brown, P. J.

The complaint in this action alleged that the plaintiff and defendant entered into a contract whereby defendant sold to plaintiff the unexpired term of a lease of a saloon and eating house in the city of Brooklyn, and the fixtures, stock and good will of said business, for the sum of $5,500; that $300 was to be paid in cash to defendant, $200 to an agent named Lloyd for negotiating the sale, and the balance by the conveyance of a farm owned by plaintiff, and situated in Dutchess county, and that possession of said lease and property so sold was to have been given on February 13, 1893; that plaintiff, on the 9th of February, had conveyed his said farm to the defendant and paid the $500 as required by the contract, but that defendant refused to give plaintiff possession of his said saloon, or transfer the lease and stock; and judgment was asked fcr the sum of $5,500 damages.

It was essential to the proof of the cause of action alleged in the complaint that there should have been a contract in writing between the parties, or proof of delivery of the deed of the farm and payment of the money to the defendant. And there was produced by the plaintiff, and put in evidence upon the trial, a paper, of which the following is a copy:

“Brooklyn, 9th February, 1893.
“Received from Ohas. H. Slocum the sum of three hundred dollars ($300), the difference agreed upon in exchange of my Myrtle Avenue Cafe & Chop House (369 Myrtle avenue), for the store & residence property of said Slocum described in a deed delivered to me this day, properly executed; and I agree to give said Slocum possession of said Myrtle Avenue Cafe & Chop House, together with all fixtures & chattels pertaining thereto, on 10th Febry., 1893, at 2 p. m., at which time the said Slocum, upon his payment of one month’s rent in advance & the broker’s fees of two hundred dollars, the above transfer to include license and existing lease on premises.
“For W. D. Gilman,
A. Lloyd, Agent.
“Time of transfer postponed until 4.30 p. m.
“A. Lloyd, Agt.
“Chas. H. Slocum.”

Lloyd, who signed this instrument as defendant’s agent, had no authority to execute it. He was not authorized to make or sign a contract for the defendant, nor had he authority to accept for him payment of any money or a delivery of a deed of the farm. He had been employed by the defendant to find a purchaser of the saloon, but had never been authorized to make or execute any contract for the sale thereof. It was claimed on the trial, however, that the execution of this instrument by Lloyd had been ratified by the defendant, and the trial court appears to have taken that view of the evidence. A verdict for damages for any amount, even nominal, is predicated upon the existence of a contract, and there was concededly no contract unless the defendant had ratified the execution of the written receipt by Lloyd. If there was any ratification, it must have been of the whole instrument; and I am unable to perceive how defendant could be held to have made a contract to assign his lease of the saloon, and escape the conclusion that he had accepted a delivery of the deed and payment of the money with a consequent liability for the value of the farm and the amount of money received. This view of the case is now presented by the appellant, and if the evidence would permit the conclusion of a ratification of Lloyd’s act, the ruling of the trial court was wrong, and the case should have been submitted to the jury. We are of the opinion, however, that a finding of ratification by the defendant could not be sustained on the evidence.

The agreement upon defendant’s part contained in the receipt was to transfer his lease and give possession of the saloon to the plaintiff at 2 p. m. on February 10th. The defendant did not see this paper until after that date. The plaintiff testified that it was shown to him at an interview on the 13th, and he then said it was “all right.” Lloyd testified that, on the evening of the 9th, he notified defendant that he had made the sale in his behalf, and asked him to call at his office on the morning of the 1.0th, but that he did not come; that at a later interview, the date of which he was uncertain about, but which he finally fixed as on the 11th, he told defendant all the particulars, and showed him the papers, and that he was satisfied. The time for the transfer of the lease had then passed, and nothing that defendant then said could bind him to the terms of the paper. There is nothing in the evidence as to the subsequent interviews (and there were many of them) which would permit the inference that either of the parties regarded the written receipt as the embodiment of a contract between them. Plaintiff evidently did not consider that he had made an irrevocable delivery of the deed, as he repossessed himself of both deed and money, and had them in his possession for two days, and produced and tendered them to defendant at the interview on the 13th; while the defendant repeatedly refused to transfer the lease, unless he could obtain from his landlord a release from liability for rent that would accrue subsequent to the assignment. It is impossible for me to regard the claim of ratification of the receipt by the defendant as ah honest one on the part of the plaintiff. The delivery of the deed aud payment of the money to Lloyd was a perfectly useless act, so far as it could have any binding force on the defendant. The plaintiff knew that. He had had repeated interviews with the defendant, and the terms of the contract between them had been agreed upon tentatively, but defendant had refused to execute the agreement. Plaintiff knew that Lloyd had no authority to make any agreement for the defendant, and a ratification of the execution of the receipt would be absolutely inconsistent with the defendant’s conduct both before and after its date. The claim, in my judgment, is a mere pretense, without foundation in the facts of the case, and the judgment should be affirmed, with costs.

All concur.


author: Dykman, J.

text:
    Samuel Phillips, Resp’t, v. New York Central and Hudson River Railroad Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    1. Negligence—Crossings.
    There is no rule of law, requiring engineers or others in charge of railroad trains, to give signals or warnings for other than grade crossings.

      %. Same.
    The company is not liable for injuries caused by frightening plaintiff’s horses, where, in complying with the provisions of § 421 of the Penal Code, the whistle was blown when the train was near or under a bridge over which plaintiff was at the time driving.
    8. Appeal—Evidence.
    A finding that plaintiff’s injury at a crossing was caused by defendant’s train was held, in this case, to be against thejpreponderanceof evidence.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Ashbel Green and Herbert E. Kinney, for app’lt; Abram A. Demarest, for resp’t.
   Dykman, J.

This is an action for the recovery of damages resulting from personal injuries of the plaintiff, received at a highway crossing in Rockland county over the West Shore Railroad, which is operated by the defendant. The highway at the place of the accident is carried across the railroad by a bridge above the grade of that road. The accident happened between half past 6 and 7 o’clock in the .morning of March 27, 1894. During the half hour between half past 6 and 7 o’clock in the morning of that day, two trains passed south on the West Shore Railroad under the bridge mentioned. The first of those trains was a train of the New York, Ontario & Westerr Railway Company, and the second was a train of the West Shore Railroad Company. The Ontario & Western train passed down about six minutes in advance of the West Shore train. The plaintiff was driving two horses, attached to a wagon loaded with furniture. He was sitting on the right-hand side of the seat, and there were two other persons on the same seat. As the plaintiff turned to the east to cross the overhead bridge the horses were walking, and their feet were oil the bridge, when the persons in the wagon saw a railroad train coming from the north, about 825 feet from the bridge which the plaintiff was then about to cross. The plaintiff drove on, and when the train was about twice its own length north of the bridge the locomotive whistle was sounded, and the horses started upon a run. When the locomotive was under the highway bridge the whistle was again sounded, and the horses continued to run. The wagon was upset, the plaintiff and the other persons were thrown, and he received the injuries from which he complains. The cause was tried at the circuit before a jury, and the plaintiff obtained a 'verdict for $2,500. The defendant has appealed from the judgment and order denying a motion for anew trial on the minutes of the court.

There is no claim that the blast of the whistle was given wantonly or maliciously, and the proof is that neither of the engineers saw the plaintiff’s wagon. It was of primary importance upon the trial to determine which of the two trains passing -under the bridge at the time of the accident frightened the hceses and caused the injury ; and, although the question was decided by the jury, we can review the testimony under the appeal from the order denying the motion for a new trial upon the minutes of the. court One of the witnesses for the plaintiff, who was riding in the wagon at the time, said on his direct examination that the train was a Haverstraw train,—No. 62; but on his cross-examination he said he saw the tops of the cars, and did not see the sides at all, and did not know what name was on the side of the cars, but that he judged from the time the train went through there that it was that train; that there was no other train that went down at that time. The testimony was plainly inferential, and amounted only to the judgment or opinion of the witness. Moreover, it is antagonistic to the following facts, which are undisputed: Blauvelt is nine-tenths of a mile north of Orangeburgh, and the bridge in question crosses the railroad between the two stations about a quarter of a mile north of Orangeburgh. The ruuning time between them is two minutes. The Ontario & Western train passed Blauvelt on the morning in question at 6:35 o’clock, and the West Shore train passed Blauvelt at 6.41, six minutes behind the other train. The two witnesses on behalf of the defendant, and the only persons outside of the plaintiff and his party who witnessed the accident, testified that, after they reached the place where the wagon was upset, and the horses had been released, and were being led from the wagon, the second train passed by, and they fix the time between the two trains at from five to seven minutes. These facts so far outweigh the testimony of the plaintiff’s witness as to constitute a decided preponderance of proof, and lead to the natural, if not irresistible, inference that the accident was caused by the blast from the whistle of the locomotive attached to the Ontario & Western train, which was not operated by the servants of the defendant. The verdict is so much against the decided weight of evidence on this point that it ought not to stand.

Proceeding with the examination of the case, in respect to the negligence of the defendant, upon the theory of the plaintiff that the West Shore train caused the accident, it may be remarked preliminarily that the success of the plaintiff in this action requires, the condemnation of all the agencies and precautions which have been so long and so universally employed for the prevention of disasters, and for the omission of which the railroad corporations have so often been found guilty of negligence. Formerly a statute of this state imposed upon railroad companies the duty to sound the locomotive bell or whistle on approaching a public crossing, and rendered the corporation liable for damages for a neglect of that duty. That statute is nullified now, but the Penal Code provides that:

“ A person acting as engineer driving a locomotive on any railway in this state who fails to ring the bell or sound the whistle upon such locomotive or cause the same to be rung or sounded at least eighty rods from any place where such railway crosses a traveled road or street on the same level (except in cities), or to continue the ringing of such bell or bells or sounding such whistle until such1locomotive and the train to which the locomotive is attached shall have completely crossed such road or street * * * is guilty of a misdemeanor.” Pen. Code, § 421.

The negligence of which the plaintiff complains, and which constitutes the foundation of this action, is the sounding of the locomotive whistle above the bridge, and again under the bridge, while the plaintiff was passing over it. The bridge is twenty feet above the railroad track, and neither of the engineers saw the plaintiff or his wagon upon the bridge. It appears from the evidence that there are two highway grade crossings over the West Shore Railroad south of the bridge where the plaintiff was injured. One of those crossings is 1,107 feet and the other 1,343|-feet south. The first whistle which frightened the horses of the plaintiff was sounded two train lengths north of the bridge, and the second was blown under the bridge, and each was blown about eighty rods north of the grade crossings respectively; being a proper distance from each. The plaintiff sustained no relation to the defendant which imposed any duty upon it in respect to him. The engineer was not required to signalize his approach to the overhead bridge. The statute requires him to give warning of his approach to public crossings on the same grade with the railroad. It so happened in this case that the eighty rod limit from the two grade crossings was near this overhead bridge, and it would seem to be an exceedingly unjust rule which would impose liability upon the defendant for sounding the whistle of the locomotive at that point, when the engineer would be guilty of a crime if he failed to do so. There is no rule of law requiring engineers or others in charge of railroad trains to give signals or warnings for other than grade crossings. With wantonness and malice eliminated from the case, and with the obligation imposed by law to give alarms at public-grade crossings, there is no principle upon which an accusation of negligence or wrong can be based upon the conduct of the engineer who sounded the alarm in this case. There are many highways in this state so near to points where the engineers are required to sound the whistle that horses are frightened by the blast, and damage ensues; but the railroad corporations incur no liability in such cases. They are simply using their own property in accordance with their legal rights. The public have no easement in common with the companies, except at grade crossings. In other places, travelers upon highways must avoid exposure and danger which may result from the sound of moving trains. If railroad companies were bound to operate their roads with reference to-persons having no rights in the locality, and to whom they owe no duty, then they can be accused of negligence for every accident resulting from the noise of their trains. In short, the recovery in this action amounts to a condemnation of the precautions, which have been devised, required and practiced for the safety of the traveling public since the commencement of railroad operations. Railroad companies have been frequently condemned for the omission of such precautions, but never for their proper observance. The judgment and order should be reversed, and a new trial granted, with costs to abide the event.


text:
    Margaret E. Purcell, App’lt, v. Long Island City, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    Malicious prosecution—Proof.
    Proof that a school trustee of the defendant preferred a charge against, the plaintiff for stealing school property, and that the corporation counsel conducted the prosecution, is alone insufficient to connect the defendant, with the prosecution.
    Appeal from a judgment dismissing the complaint.

      I Newton Williams, for app’lt; Wm. M Stewart, for appellee.
   Dykman, J.

This is an action for the recovery of damages for' malicious prosecution. The cause came on for trial at the circuit, and, after the jury had been impaneled and sworn, the counsel for the defendant moved to dismiss the complaint, because it was apparent that the plaintiff had no cause of action. Thereupon the trial judge said to the counsel for the plaintiff:

“We will take your statements of the facts connecting the city wish the prosecution. Plaintiff’s counsel states that he would offer proof to sustain the allegation connecting defendant with the acts of the trustees, and he will show as follows: That the complainant in the criminal prosecution mentioned in the complaint was one of the school trustees of the fifth ward of Long Island City; that he was duly elected as such under the charter of the city, and served in such capacity, and that he charged the plaintiff here as such trustee with feloniously stealing the property men■tioned in the complaint, and, farther, that the said property belonged to the defendant under the charter of Long Island City; that the corporation counsel of defendant appeared on the trial, and the prosecution of the action was conducted by the corporation counsel, and plaintiff offers proof of the other allegations of the complaint. The Court,: The court holds that evidence, if proved, insufficient to connect the defendant, a municipal corporation, so as to render it liable. Plaintiff’s Counsel: We offer to prove that the plaintiff’s arrest and court proceedings of the trial referred to were published in the daily papers of Long Island City and New York City ; that the trial was adjourned from time to to time before the police justice before whom the trial was held, and the corporation counsel appeared on each of the adjourned ■hearings, and prosecuted the criminal charge against plaintiff, which charge was dismissed, and the plaintiff discharged from ar„rest, and that ended the proceedings. The Court: I hold that it is insufficient to connect the municipality, assuming, for the argument, that every part of your cause of action would be established. -(Plaintiff’s counsel excepts. Complaint dismissed. Exception by plaintiff.) ”

It is not necessary upon this appeal to decide whether an action •for malicious prosecution can be maintained against a municipal ■corporation, because the facts fail to connect the defendant with the prosecution in this case. It is a case of failure of proof to sustain an alleged cause of action. The judgment should be affirmed, with costs.

All concur.


text:
    Wheeler and Wilson Manufacturing Company, App’lt, v. Joseph W. Elberson, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

      1. Principal and agent—Authority.
    A party cannot, after accepting the benefits of a contract, be permitted to question the authority of the person who made it for him.
    2. Appeal—First instance.
    The point that the agent had no authority, not taken at the trial, is not available on appeal.
    Appeal from a judgment entered on a verdict in favor of deiend ant.

      Holden & Allen, for app’lt; Thomas J. Ritch, Jr., for resp’t.
   Brown, P. J.

This action was brought to recover against the ■defendant as the maker of two promissory notes ; also upon an account for merchandise sold.. The cause of action u]ion the account is admitted to be barred by the statute of limitations. The notes were given to secure the payment of the purchase price of sewing machines, and one of them contained a provision that the title to the machine for the payment of which it was given should remain in the plaintiff (the vendor) until the note was paid. The defense was that, prior to the maturity of the notes, the defendant, being insolvent, entered into an agreement with the plaintiff whereby all the machines, together with certain shafting, transmitters, and other property, was surrendered to the plaintiff in consideration oí the cancellation of the notes; that the plaintiff took possession of the property, and refused to surrender the notes. Instead of so doing, it credited upon them the value of the property received, and brought this action to recover the balance. Upon the issue thus raised the jury found for the defendant. The point is now made that the agent who negotiated the agreement with the defendant was without authority to bind the plaintiff to surrender the notes or cancel the debt. This point was not taken at the trial, and there was no request made to take the case from the jury, or to instruct them upon the question of the agent’s authority. The question cannot be raised for the first time on appeal, and is not now available to the appellant. The agreement, however, was supported by ample consideration in the surrender of the machine before the maturity of the notes, and in the transfer of shafting and other property, of which the defendant had the absolute title. And the plaintiff, having accepted the benefits of the contract, cannot now be permitted to question the authority of the agent who made it. The judgment must.be affirmed, with costs.

All concur.


author: Pratt, J.

text:
    John Jager, App’lt, v. Coney Island and Brooklyn Railroad Company, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    Negligence—Contributory.
    A person, who sees a street car approaching but fails to get out of the the way, though he had ample time to do so, is guilty of contributory negligence.
    Appeal from a judgment dismissing the complaint.

      Jacobs & Butcher, for app’lt; H. W. Slocum, for resp’t.
   Pratt, J.

This is an appeal from a judgment entered at circuit in a negligence case. The plaintiff was injured on defendant’s railroad track, about 150 feet south of what is called “Manhattan Crossing,” by a car going from Brooklyn to Coney Island. The negligence, it was claimed, which caused the injury, consisted (1) in a high rate of speed on a public highway ; (2) the absence of signals ; and (3) the absence of the motorman from his post of duty. There was no difficulty in seeing both ways upon the track, a long distance. In fact, the plaintiff did see the car approaching, for a long distance, and in ample time to get out of the way of it; and, if he had stood still where he was when he saw the car coming, he would not have been injured, but he says when the car got near him he jumped in front of the car. This testimony precluded any inference of negligence in not stopping the car, or in the motorman not being at his post. In fact, the proof was that the motorman was at his post all the time, and a second or two before the accident he had turned on the power, to increase the speed. The plaintiff was traveling in a direction to meet the car, and had seen it in plain view, corning towards him, for a long-distance. Indeed, he saw it so far ahead of him that he took it for a man with a lantern, which does away with all necessity for signals, were the same required. The criticism that the motorman was seen, before the accident, leaning with his back against: the door, is not only puerile, but it is false, if it refers to the moment before the accident. It is apparent from the facts in evidence, putting the most favorable construction on them for the plaintiff, that no negligence whatever was shown on the part of the defendant, but that the sole cause of the accident was want of. care on the part of the plaintiff.

Judgment affirmed, with costs.

All concur.


text:
    Eugene Bouscher, Resp’t, v. Charles D. Larkins, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    Broker—Commission.
    _ A broker who abandons the trade or relinquishes his efforts, is not entitled to commission, though the owner subsequently makes a sale to a-person whom the broker has introduced.
    Appeal from an order granting a motion to dismiss the complaint, and from the judgment entered on such order.

      George D. Beatty, for app’lt; Warner & Terry, for resp’t.
   Pratt, J.

This is an appeal from a judgment entered upon a verdict of a jury, and from an order denying a motion for a new trial. The action was brought by an assignee of a real estate-broker to recover commissions for the sole benefit of the assignor, who claimed to have earned the commissions by effecting an exchange of property belonging to the defendant with one Burr Wilson. It appeared in evidence that the assignor, one Swartz, was-employed by the defendant as a broker, and that be attempted to negotiate a trade with one Reynolds of the farm of the defendant, situated in Saratoga, for two houses which did not belong to-Reynolds, and also for some other property in Hew York City ; but said negotiations never resulted in a trade. Indeed, Reynolds refused all offers made by defendant; and Swartz, although requested by the defendant, refused to negotiate further, and abandoned the matter, and it was declared off The defendant after-wards learned from Reynolds that one Burr Wilson had become owner of the Lewis Aven.ue houses, and opened negotiations with him, and effected a trade. Swartz had nothing to do with this-last trade, and, so far as appears, did not know Wilson, or of any negotiations between him and the defendant. The decided weight of evidence upon the question whether the trade was entirely abandoned, and Swartz refused to go further with Reynolds or Haskis, the original parties with whom negotiations had been carried on, is to the effect that it was abandoned and declared off. The said Swartz did, however, attempt to secure some new parties who owned property in the city of Hew York, but no result was obtained therefrom. The well-settled rule is, if a broker abandons the trade or relinquishes his efforts, the principal is not precluded irom negotiating with any person whom the broker has introduced ; the broker is not entitled to commission. Wylie v. Marine Nat. Bank, 61 N. Y. 415; Sibbald v. Bethlehem Iron Co., 83 id. 378; Hay v. Platt, 66 Hun, 488 ; 50 St. Rep. 158. We also think that the evidence was in favor of $250, instead of $500, as the amount of commission Swartz was to receive in case he effected a sale.

If these views are correct, it follows that the judgment must be set aside, and a new trial granted.

All concur.


text:
    Michael Fitzgerald, App’lt, v. John Geils, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    1. Slander—Per se.
    A charge, made maliciously in respect to the professional capacity of a person, which, if true would render him unworthy of employment, is actionable per se.

      % Pleading—Amendment.
    Where an allegation of special damage is necessary in an action for slander, the plaintiff should be permitted to supply such' omission, by inserting in his complaint an allegation of special injury and damage.
    Appeal from an order granting a motion to dismiss the complaint.

      Chas. H. Noxon, for app’lt; Martin J Keogh, for resp’t.
   Pratt, J.

This is an appeal from a judgment rendered upon an order made at circuit dismissing a complaint upon its face in an action of slander. The complaint is as follows :

The plaintiff above named, complaining of the above-named defendant, respectfully shows to the court, and alleges: First,

That, at all times mentioned in this complaint, both he and the defendant have been, and now are, residents of the county of Westchester and state of Rew York. Second. That between the first day of October, 1892, and the first day of May, 1893, at divers times in the village of Rew Eochelle, Westchester county, Hew York, and vicinity, the defendant, in the presence and hearing of a number of persons, maliciously spoke, concerning the plaintiff, the false and defamatory words following: “ The plaintiff is a drunkard,” “and, by reason of plaintiff’s drunkenness, he is no good any more as a mechanic.” Third. That plaintiff’s only means of supporting himself and his family is as a carpenter and builder. Whereby the plaintiff was injured in his reputation, to his damage five thousand dollars. Wherefore plaintiff demands judgment against the defendant for five thousand dollars, with the costs of this action.

The only criticism that can be made upon it is that it does not allege that the words were spoken of and concerning the trade or business of the plaintiff, and that he was therein specially injured, and alleging special damages. But it is evident from the face of the complaint that the words were spoken of and concerning plaintiff’s trade, and, under the Code, the complaint set forth a good cause of action. It has been recently held in this district that a charge made maliciously in respect to the professional capacity of a person which, if true, would render him unworthy of employment, is actionable per se. This renders any allegation of special damage unnecessary. Cruikshank v. Gordon, 48 Hun, 808 ; 15 St. Rep. 897. But, assuming the above case is not good law, we think the plaintiff should have been allowed to amend by inserting in his complaint an allegation of special injury and damage. Lynde v. Johnson, 39 Hun, 12 ; Fowles v. Bowen, 30 N. Y. 20. Judgment set aside, and motion denied, with costs.


author: Pratt, J

text:
    Grant B. Taylor, as Receiver, etc., Resp’t, v. Port Jefferson Milling Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.
    1. Insurance—Mutual—Pbemium note.
    In an action on a premium note given to a. mutual fire insurance company, the judgment rendered may be for the full amount of such note instead of the amount of the assessment, but execution can issue only for the amount due.
    2. Same—Mistake.
    A mistake in including a previous assessment may be corrected upon the trial, in so far as it does not prejudice a party.
    3. Same—Demand.
    The fact that the receiver demanded too much, does not render the demand void.
    Appeal from a judgment in favor of plaintiff.

      Strong & Spear (A. A. Spear, of counsel), for app’lt; Bacon & Merritt, for resp’t.
   Pratt, J

This is an appeal from a judgment entered upon a trial by a judge without a jury. There is no substantial dispute about the facts, and the result of the trial seems to be entirely just and proper. At first blush, it seems strange that a judgment should have been ordered for the full amount of the note, but it is provided by statute (Laws 1858, c. 466, § 13) what shall be the form of the judgment, and no injustice follows, because the execution can issue for no more than is actually due, and such course was carried out in this case. At the settlement of the first suit, the premium note was not given up, and the defendant remained liable upon it for all assessments that had or should accrue prior to the cancellation of the policy, which occurred on the 16th of September, 1890.

The contention of the defendant that the settlement of the first suit was an accord and satisfaction between the plaintiff and defendant, or a release of the defendant from further liability, is not sustained by the evidence. Indeed, if such had been the intention of the parties, it would have been void as against existing creditors of the plaintiff’s corporation. The statute under which the directors of this insurance company acted limited them in giving up the note only after the maker had paid his proportion of. all losses that had accrued during the term of insurance. See statute before referred to; Hyatt v. Wait, 37 Barb. 29. The assessment sued for was made in July, 1890, and the surrender of the policy was in September, 1890, and there seems to have been no provision made for the losses accrued between those dates. From this it is a fair inference that the officers not only did not give up the note, but never intended to release the defendant from liability thereon until he had fully complied with his duty under the statute by paying his proportion of the losses and expenses. A just result was reached by the trial judge, and no error is pointed out sufficient to warrant us in disturbing the judgment.

The defendant insists that an error was committed because in this suit part of an assessment upon which a prior suit was brought was included in this action. The answer to this contention is that part of the assessment was allowed to the defendant and the-judgment as if it had not been included, so that, as against this defendant, no injustice was done, and the judgment is the same as if it had not.been included in the last assessment. A mistake in. including a previous assessment may be corrected upon the trial, as well as any other mistake of figures, in so far as it does not prejudice a party. It is only invalid as against a party prejudiced thereby. Neither does the fact that the receiver demanded too much render the demand void.

The court found in its ninth finding of law that the agreement of 17th of September, 1890, subsequently consummated, was a complete settlement and adjustment of al.l liabilities of the defendant upon its said note.” The use sought to be made of this-finding of law is inconsistent with the facts proved and with the judgment finally rendered.

Notwithstanding all the technical objections raised, the judgment is entirely proper and just, and must be affirmed.


author: Cullen, J.

text:
    George Harley, Resp’t, v. Edward Fitzgerald, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    1. Trial—Affirmative.
    Failure to grant the right to open and close, in a proper case, is a fatal error.

      2 Same.
    The defendant is entitled to this right, where the answer contains no denial, hut sets up a counterclaim.
    Appeal from a judgment of the county court affirming a justice’s judgment in favor of plaintiff.

      A. H. F. Seeger, for app’lt; Wm. D. Dickey, for resp’t.
   Cullen, J.

This is an appeal from a judgment of the county court affirming a judgment recovered in the court of a justice of the peace. There is but one point urged on this appeal,—that on the trial before the justice and jury the defendant was denied the right to open and close the case. That this right is substantial,, and that a failure to grant it in a proper case is fatal error, are set-tied by authority. Murray v. N. Y. Life Insurance Co., 85 N. Y. 236; Millerd v. Thorn, 56 Id. 402. By § 2868 of the Code, the justice must hear, try, and determine actions before him according to law. So the principles cited must apply in such cause. 3 Wait, Law & Prac. 470, 724. The plaintiff made oral complaint for $45, with interest from September 1, 1893, for wages. The defendant filed a written answer, pleading a general denial and a counterclaim. When the case came on for trial he filed an amended answer, denying nothing, but admitting the indebtedness of $45, without any allegation as to the interest. The answer then set forth two counterclaims. On this answer, it is plain that the defendant had the affirmative. True, the answer did not admit interest;, but an admission was not necessary, as' the failure to deny the allegation of the complaint operated as an admission. Nor was it necessary for the plaintiff to prove his case. Section 2891 of the Code provides that if the defendant fails to appear and answer the plaintiff cannot recover without proving his case. But this does not apply where the defendant does appear and answer. Gregory v Trainor, 4 E. D. Smith, 58. Nor is it material whether the second defense pleaded be considered a counterclaim or a set-off. In either case, the burden of proof to establish it was on the defendant. The judgment of the county court and -of the justice should be reversed, with costs.

All concur..


text:
    The People ex rel. John P. Wilson, App’lt, v. Medical Society of the County of Dutchess, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

      1. Certiorari—Member or association.

      Certiorari will not lie to review the action of a corporation in expelling or suspending a member.

      % Associations—Expulsion—Resort to court.
    An expelled member of a county medical society must seek redress by an appeal to the State Medical Society before resorting to the courts.
    Certiorari to review the action of the medical society of the county of Dutchess in suspending the relator from membership.

      Wood & Morschauser, for relator; F. B. Town, for resp’t.
   Cullen, J.

This a certiorari to review the action of the respondent, which suspended the relator from membership for one year. We are met at the threshold of the case by the objection that certiorari will not lie. The action of a corporation in removing or suspending a member is doubtless, in one sense, judicial or quasi judicial. But we know of no authority for the proposition that the act of expulsion is to be treated as a judgment of a legal tribunal, to be reviewed, as such by a certiorari. There are many cases where members have been expelled from corporations, but the remedy taken has always been mandamus or action. Ang. & A. Corp. § 704; People ex rel. Deverell v. Musical M. P. Union, 118 N. Y. 101; 27 St. Rep. 963 ; Loubat v. Le Roy, 40 Hun, 546. This is also true of amotion from medical societies. People ex rel. Gray v. Medical Society of Erie Co., 24 Barb. 570, and People ex rel. Bartlett v. Medical Society of Erie Co., 32 N. Y. 187, were eases of mandamus. I can tina no reported case where certiorari had been issued to review the action of a corporation expelling or suspending a member. The nearest approach to it is an old case (Groenvelt v. Burwell, 1 Ld. Raym. 454), where it was held that certiorari would lie to review the action of medical censors in disciplining the plaintiff. The censors seem to have been granted, some special statutory power, and under it they fined the relator, and committed him to jail. That certainly partook of the nature of a legal judgment. The power of a motion exists in corporations of the character of this respondent. The power must doubtless be exercised according to the by-laws of a corporation and the rules of natural justice, and the grounds for such action must be reasonable and lawful. The member proceeded against must have a fair hearing But there is no power in the corporation to take legal testimony, nor are any particular formalities to be observed other than those required by the by-laws of a corporation. Such proceedings can hardly have sufficient semblance of judicial form, or present a sufficient record, for the courts to review'on certiorari. A further objection to the issue of the writ is that the relator is given by statute (chapter 445, Laws 1866) an appeal to the Medical Society of the state of New York. The relator should have invoked such an appeal for redress, before resorting' to the courts. Thomas v. Musical M. P. Union, 121 N. Y. 45; 30 St. Rep. 563. The writ should be quashed, with $10 costs and disbursements.

All concur.


text:
    William Finlayson, et al., Resp’ts, v. Erastus Wiman, Appl’t.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    1. Contract—Construction.
    When the terms and language of a contract are ascertained, its meaning and intent present questions of law only, which it is the duty of the court to determine and declare.
    3, Judgment—Relief.
    In a litigated case, where an answer has been served, the plaintiff, if he recovers, is not confined to the relief which he demands in his complaint, but the court is at liberty to award such judgment and such relief as he is entitled to under the testimony,
    Motion for a new trial, on exceptions ordered, to be heard at general term in the first instance.

      Redfield & Redfield, for plaintiffs; Clinton T. Roe, for defendant.
   Dykman, J.

This is an application for judgment upon a verdict of a jury in favor of the plaintiffs under the direction of the judge that the exceptions should be heard in the first instance at the general term. The action was brought for the recovery of the urchase money of 325 shares of stock sold bv the plaintiffs to the defendant. The complaint in the action alleges that in February, 1888, the plaintiffs and defendant made an agreement by which the latter undertook to buy from the former the shares of stock mentioned at the price of their par value, which was $32,500 ; that after the defendant made default in payment under this contract, and after it was rescinded by mutual consent, the parties made another contract, in January, 1890, by which the defendant agreed to take the same stock at fifty per cent, bf its par value, that is, $16,250, with an additional sum, equal to five per cent, thereof, which was to be paid on the delivery of the certificates. The defendant having made default in that payment, the last agreement was also modified in this respept, to wit; That the purchase price instead of being payable in one sum, on delivery of the stock certificates, was to be paid by installments, the plaintiffs in the meantime to bold the certificates as security forth e due payment of the price agreed upon. The complaint then alleges the defendant’s payment of the first installment of £1,000 under the last modification of the agreement, the readiness and willingness of the plaintiffs to deliver the 325 shares of stock, and their tender of the certificates, and the defendant’s refusal to-accept the same. The defendant answered the complaint, and denied specifically the allegations thereof. He also alleged affirmatively, by way of defense and counterclaim, that the offer which was made and accepted was at the price of fifty per cent, of the par value thereof, with interest thereon at the rate of five per cent, per annum from November 15, 1883, payable in installments of ¿1,000, as he thereafter became able to do so, the stock to be delivered by plaintiffs in lots as paid off by the defendant; that the defendant on July 31, 1890, paid to the plaintiffs, on account of the purchase price, ¿1,000 sterling, equivalent to $4,840; and that the plaintiffs failed, neglected and refused to deliver to the defendant the shares which he then became entitled to receive, but since that time he has been unable to make any other purchases or payments; and then demands judgment for the $4,840 paid by him, with interest. The jury, under the direction of the court, found a verdict in favor of the plaintiffs for the sum of $19,660.95, which was the amount of the purchase money of the stock, with interest, the stock to remain where it was, subject to be delivered on the satisfaction of the judgment, and, as we have already said, directed the exceptions to be heard in the first instance at the general term.

The oidy exceptions taken by the defendant were to the refusal cf the court to dismiss the complaint at the close of the plaintiffs’ case, and to the direction of a verdict in favor of the plaintiffs. The ground of both exceptions is the same, to wit, that no contract was shown. No request was made that any question of fact should he submitted to the jury. There was no conflict of evidence on any issue in the case, as the contract was solely evidenced by the letters and cablegrams of the parties. The questions involved were whether the correspondence disqlosed a valid contract, and, if so, whether the terms thereof were those alleged in the complaint, or were, on the other hand, those alleged by the defendant, in his affirmative defense and counterclaim. Upon the only point raised by the question whether any contract was shown, the only preliminary proof was the written correspondence of the parties, which was by mail or cablegram, as the plaintiffs reside in Glasgow, and the defendant in New York City. Only so much of this correspondence is printed in the case as is material on the question of the validity of the exceptions taken by the defendant at the trial.

• The letters contained in the -record, taken in connection with the admissions of counsel made for the purpose of the present hearing, disclosed the fact that the plaintiffs originally acquired the stock in question by purchase from the defendant, paying him therefor on November 5, 1883, the price of £3,250 sterling, or $16,250 in our currency, which was fifty per cent, of the par value. That fact was material in explanation of the context of the correspondence. The mutual assent of the parties to the agreement of purchase and sale was proven by their written correspondence. The express terms and language of the parties were betore the court, over their respective signatures. Their legal effect, and whether they disclosed the legal assent which is essential to the validity of every contract, were questions of law for the court, which it was the province of the trial court, and not the jury, to determine. The rule of law on the subject is this: When the terms and language of a contract are ascertained, its meaning and intent present questions of law only, and it is the duty of the court, and not of the jury, to -determine and declare what it is. Dwight v. Germania Life Insurance Co., 103 N. Y. 352 ; 3 St. Rep. 115. It is only when there is conflicting evidence as to the terms of the agreement, or where extraneous evidence raises some doubt over the subject-matter of the claimants thereunder, that the interpretation of contracts can be submitted to a jury. Independently of this view, however, it is to be stated that the counsel for the defendant made no request for the submission of any question to the jury, and he must, therefore, be considered as agreeing to submit the question of fact to the judge. Dillon v. Cockroft, 90 N. Y. 649.

At the time of the commencement of this action there were three legal remedies which the plaintiffs were at liberty to seek. In the first place, tbéy might have retained the stock for the defendant, and sued him for the entire purchase price thereof; or they could have sold the stock, and recovered the difference between the contract price and the price for which it was sold ; and, third, they could keep the stock as their own, and recover the difference between the contract price and its market value. The complaint in this action was framed with the view of obtaining the relief last above mentioned, but in our view it contains sufficient allegations to entitle the plaintiffs to the relief which they actually obtained. In a litigated case, where an answer has been served, the plaintiff, if he recovers, is not confined to the relief which he demands in his complaint, but the court is at liberty to award such judgment and such relief as he is entitled to under the testimony; and therefore in this case, as the complaint contains sufficient allegations to entitle the plaintiffs to a recovery, it was within the province of the trial judge to afford the relief to 'which ■the plaintiffs were entitled under the testimony ; and as the court directed the verdict in favor of the plaintiffs for the amount which was evidently due under the modification of the contract, the stock to remain where it was, subject to be delivered on satisfaction of the judgment, it is evident justice has been wrought, and there seems to be no necessity for any amendment of the pleadings. Our view therefore is that the exceptions should be overruled, and the judgment should be ordered to be directed in favor of the plaintiffs upon the verdict, with costs.


text:
    William. D. Strong et al., Resp’ts, v. Richard P. Strong et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    1. Equity—Jurisdiction.
    Where the testator has devised all his property to some of his children, an agreement, in consideration that the other children should not contest the will, that all should share equally in the estate, does not convey any title to the children excluded by the will, and they cannot maintain ah action for partition of testator’s real estate.
    3. Same—Pleading—Specific performance.
    A complaint setting up such agreement and asking for partition and division of decedent’s estate, does not state a cause of action for specific performance of the agreement.
    3. Executors—Accounting.
    Wnen complete relief can he obtained in the surrogate’s court, a court of equity will decline to entertain an action for an accounting or other relief against executors.
    4. Same.
    A cause of action, which will remove from the custody of the executors the. whole estate of a testator and distribute it among the beneficiaries, is unknown to the law.
    Appeal from an interlocutory judgment, overruling a demurrer to the complaint.
    The parties to this action are the children of Demas Strong, deceased, and. the wives of the sons of said deceased. The material allegations of the complaint are that Demas Strong died in November, 1893, leaving a will, which 'was admitted to probate in January, 1894,'by which, after the bequest of certain legacies, he left all his property, real and personal, io his five daughters; that some of the children were dissatisfied with the provisions of the will, and that, in consideration that they would not enter into a contest thereof, the said children, with the exception of Jennie McMahan, entered into an agreement to share equally in the division of the estate, both real and personal, with certain provisos, not material on this appeal; that the parties to such agreement, excepting the plaintiffs, refused to abide by it or carry it out. The respective interests of each party in and to said' estate as they would be if said agreement had been executed are set out in the complaint, and attached to it is a schedule alleged to contain a description of all the real estate within this state of which said Demas Strong died seised. The personal property was alleged to be of the value of $200,000, and the real estate of the value of $100,000. The prayer of the complaint was as follows : “ Wherefore the plaintiffs pray, that partition and division of said property and estate may be made by and under the direction of this court, according to the statutes and laws in such cases made, provided, and existing; that commissioners 'may be appointed by the court for the purpose of making such partition, or in case a partition of said premises, or of any part thereof, cannot be made without great prejudice to the owners thereof, then the said premises, or such part thereof as cannot be divided, may be sold, by and under the direction of this court; and that the proceeds of the sale, after paying the costs and expenses of this suit, may be divided among the owners thereof, according to their respective rights and interests therein; and that the plaintiffs may have their costs of this suit, and such other and further relief as may be just.” The demurrers alleged that causes of action were improperly joined, and that the complaint did not state facts sufficient to constitute a cause of action. Jennie McMahan, wdio did not sign the agreement set forth in the complaint, demurred separately. Julia D. Harris and Clarissa B. Goodnow, as executors of the will of Demas Strong, deceased, demurred jointly; and said two defendants, individually, demurred jointly with their sister, Susan Strong.

      Joseph A. Burr, for app’lts; Horace Graves, for resp’ts.
   Brown, P. J.

The complaint in this action does not state a cause of action for partition of real estate. The plaintiffs derive no title to the land under the will of their father, neither have they any under the agreement with the heirs. The later instrument is, in respect at least to the land, a mere executory contract, to the effect that all who execute it shall share equally therein. It conveys no title, and does not constitute the signers joint tenants or tenants in common in the land of which their father died seised. I know of no precedent for an action in equity which seeks no other relief than a distribution of a testator’s personal estate among those entitled thereto. The law gives the custody and possession of the personal estate to the executors, and juz-isdiction to direct and control their conduct and settle their accounts is conferred upon’ the surrogates’ courts; and a court of equity does not interfere in such cases, except when there is some question of the construction or validity of the provisions of a will, or some question of the enforcement of a trust. When complete relief can be obtained in the surrogate’s court, a court of equity will decline to entertain an action for an accounting or other relief against executoz-s. Wager v. Wager, 89 N. Y. 161.

Assuming, for the purposes of this appeal, that the agreement between the heirs, so far as the personal estate was concerned, executed itself, and is to be construed as an assignment to the plaintiffs of an intez-est in the estate, no facts az-e stated in the complaint which create azi equitable cause of action against the executors for an accounting, and no z-eason is apparent why the plaintiffs cannot obtain all the relief to which they are entitled in the surrogate’s court. The complaint contains no allegation against the executors of any kind, nor is any judgment demanded against them. The prayer for relief ignores them entirely, and a judgment is sought by which the estate is to be divided by commisioners appointed by the court, or sold, and the proceeds distributed under its direction. While an action can be maintained for a partition of specific personal property, owned in common by two or more parties, or for the sale of a chattel, and the distribution of the proceeds, a cause of action, such as is set out in the complaint, which would remove from the custody of executors the whole estate of a testator, and distribute it among the beneficiaries, is unknown to the law. The special term, however, decided that the complaint set forth a cause of action for a specific performance of the agreement to divide the estate. With such a cause of action, neither Mrs. McMahan nor the executrices have any concern. They are not parties to the agreement, nor interested in the result of such a suit. The demurrers of these defendants are therefore well taken.

But we are of the opinion that the complaint does not state such a cause of action. No relief of that kind is asked, and the test to be applied to the pleading is whether, if there was no answer, the plaintiffs would be entitled to a judgment directing a conveyance to them of their respective shares of the real and personal estate.- By section 1207 of the Code of Civil Procedure, it is provided that “when there is no answer the judgment shall not be more favorable to the plaintiff than that demanded in the complaint.” The plaintiffs would not therefore be entitled to a judg: ment decreeing specific performance of the contract, not having demanded that relief.

But the complaint is defective in another respect. The consideration of the agreement between the heirs was alleged to be an agreement on the part of the plaintiffs and their brothers not to contest the will, and there is no allegation that that agreement was performed. The testator died on November 9, 1893, and the will was not admitted to probate until January 22, 1894. The court could not presume that there was no contest. That there should be no contest was a condition precedent to the daughters’ liability. It was a fact to be alleged and proved, and, without such an allegation, the complaint failed to state a cause of action.

The demurrers were all well taken, and the judgment should be reversed, and the demurrers sustained, with costs, with leave to the plaintiffs to amend the complaint in twenty days on payment of costs. All concur.


text:
    Mary Clifford, App’lt, v. Frederick Kampfe et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    Husband and wife—Dower.
    A married woman may sue to set aside, as far as it affects her, a deed of land in which she has an inchoate right of dower, where it was executed by her husband and another person, who is stated therein to be his wife, and purports to release such dower right.

      Appeal from an intérlocutory judgment, sustaining a demurrer to the complaint

      Albert C. Aubery, for app’lt; Herman F. Koepke, for resp’ts.
   Dykman, J.

The plaintiff in this action alleges that she is the wife of James Clifford, arid, as such, has ah inchoate right of dower in the premises described in the complaint; that in June, 1892, her husband was seised in fee of such premises, and at that time, in conjunction with some person unknown to the plaintiff, he executed to the defendants a deed of conveyance of the premises, which purports to have been executed by Maria Clifford, wife of James Clifford ; that the plaintiff never signed nor acknowledged such deed ; and she asked that the same, so far as it affects her, be set aside. The defendants demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, and that the plaintiff has not legal capacity to sue,, because the action does not affect her separate estate. The demurrer was sustained, and the plaintiff has appealed from the judgment.

While it may be quite doubtful whether the execution of the deed by Maria Clifford, wife of James Clifford, would constitute any bar or obstruction to the rights of Mary Clifford, the plaintiff, yet we have concluded to examine and decide the case upon its merits. While there is a difference'between the rights of a wife and a widow in the land of her husband, yet both have rights which the courts will protect. The right of the wife is denominated “inchoate,” or “incipient.” While it is not an estate, nor an existing interest in land, yet it is based upon a possibility of becoming such, and it is the legal right of a wife to protect such possibility. Such inchoate right of a wife cannot be impaired or invaded, and it is entitled to the same protection as a vested right of a widow. Platt v. Brick, 35 Hun, 121; Mills v. Van Voorhies, 20 N. Y. 420; Simar v. Canaday, 53 id. 298; Babcock v. Babcock, 53 How. Pr. 97; Matthews v. Duryee, 43 N. Y. 525. In the case of Babcock v. Babcock, 53 How. Pr. 97, the husband of the plaintiff, on the eve of their marriage, made a voluntary conveyance of his real property to his son and daughter, without the knowledge of the plaintiff. After the marriage, the plaintiff brought a suit to nullify the deed ; and it was held that the plaintiff have judgment declaring such deed void as to her, and that she had an inchoate dower right in all said real estate, notwithstanding such conveyance, and a future absolute right of dower therein upon the event of the death of her husband in her lifetime; and, further, that the wife is not required to wait before bringing her action until her inchoate right becomes absolute by the death of her husband. It is the present injury the plaintiff has sustained in the loss of her inchoate right in the lands in question that entitles her to maintain her present action, and, the conveyance being made on the eve of the marriage, to defraud the wife of the interest in the land which she would have acquired by the marriage, a court of equity will entertain her action for the conservation of the right which she has lost or may lose by the fraudulent acts of- the defendants, and grant her the relief to which she may be entitled equitably. The same doctrine is taught in the case of Swaine v. Perine, 5 Johns. Ch. 482. We had occasion to examine the question in another aspect in Re, Brooklyn Bridge, 75 Hun, 558; 59 St. Rep. 613 ; and we there held that the inchoate right of dower of the wife must be recognized and protected in an award for land appropriated under the right of eminent domain.

The deed in question purports upon its face to release the inchoate right of dower of the plaintiff; at least such is its legal effect ; and it should be nullified so far as she is concerned. We do not consider the objection to the capacity of the plaintiff to maintain this suit well taken. The action is for the protection of what may heccome her separate estate, and she can prosecute the same as if she were a single woman. The judgment should be reversed, with costs; and the demurrer to the complaint should be overruled, with leave to the defendants to answer in twenty days on payment of costs.

All concur.


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    Walter S. McAllaster, Resp’t, v. Niagara Fire Insurance Company, App'lt.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    1. Insurance—Fire—Replacing property.
    Where the contract of insurance renders a notice of thirty days, after the receipt of the proof of loss, of an intention to replace the property a condition precedent of the right of the company to do so, such right is forfeited by a failure to give the notice in time.
    2. Same.
    Construction of provision of policy as to the time in which such notice must be given.
    Appeal from a judgment in favor of plaintiff.

      De Forest Bros., for app’lt; Reeves, Todd & Hitchcock, for resp’t.
   Dykman, J.

This is an action upon a policy of fire insurance. Upon the trial a verdict was directed by the court in favor of the plaintiff, and the defendant has appealed from the judgment, and from the order denying a motion for a new trial on the minutes of the court. There seems to be no substantial dispute respecting the material facts of the case. On the 15th day of December, 1892, the defendant issued a policy of fire insurance in the standard form, by which it insured the house of the plaintiff at Congers, Rockland county, for $2,000. On the 27th day of August, 1893, the house was totally destroyed by fire, and notice thereof was immediately given to the company. On the 25th day of October, 1893, and in due time, the plaintiff served upon the company the proof of loss in regular form, as required by the policy. The company made no denial of its liability, and disputed only the amount of damage sustained. It was unable to agree with the plaintiff on that point, and thereupon demanded the arbitration provided for in the policy. The arbitrators, failing to agree, submitted their differences to the umpire, who,, with one of the arbitrators, made an award by which they found the loss of the plaintiff to exceed the amount for which he was insured. The award was received and retained by the company without objection. On the 10th day of April, 1894, the company notified the plaintiff of its intention to rebuild the house. On the 21st day of April the company began to rebuild, and on the 23d day of April, 1894, notified the plaintiff of that fact. This letter was received in course of mail, and on the 4th day of May following the plaintiff wrote to the company as follows:

“We are to-day informed that you are taking steps to rebuild the McAllister house at Congers, Rockland county, New York. As we have already notified you, your right to rebuild is now gone; anything you do in that direction is at your own peril. We shall not accept the house, and shall sue you for the insurance money as soon as we can legally do so.”

The company proceeded, however, with the work, and built the house. On the 19th day of May the sixty days expired within which an action could be commenced upon a policy, and on the 22d day of that month this suit v?as commenced. The company proceeded with the house, and on the 3d day of July, 1894, tendered the keys to the plaintiff, who refused to accept the same, and they were left upon his desk. He thereupon forthwith returned them to the company. The only question in the case is whether the defendant exercised its option to rebuild in time. The contention of the plaintiff is-that the company should have exercised such option within thirty days after the receipt of the proof of loss required by lines sixty-seven to eighty of the policy, whereas the defendant contends, that the company had until thirty days after the service of the award of the arbitrators. The policy reserves to the insurance ¿ornpany the option either to pay the loss or replace the property. If the company elects to pay the amount for which it is liable, that sum is payable sixty days after the reception of “due-notice, ascertainment, estimate, and satisfactory proof of loss.” If, on the other hand, the company elects to replace the property, it must, give notice of its intention to do so within thirty days after the receipt of the proof required by the policy, the language being, “the proof herein required.” What is meant by this phrase, and to-what does it pertain? In lines ninety-three, ninety-four, and ninety-five of the policy, it is provided that “the loss shall not become-payable until sixty days after the notice, ascertainment, estimate, and satisfactory proof of the loss herein required have been received by this company, including an award by appraisers, when appraisal has been required.” This provision, read in connection with line three, above quoted, shows that it relates to payment, solely. The only provision for indemnity by rebuilding is in the fifth line of the policy, arid that provision makes a notice of intention so to do within thirty days of the receipt of the proof of loss a condition precedent to the exercise ot the.right. While but little aid can be obtained in this case from adjudicated decisions, yet. such judicial expression as we have is in favor of our construction. Clover v. Greenwich Insurance Co., 101 N. Y. 277; McNally v. Phoe nix Insurance Co., 137 id. 339 ; 50 St. Rep. 680. In relation to the defense of waiver raised by the defendant, it is sufficient to say that the claim is based upon the silence of the plaintiff, and that alone is insufficient. The plaintiff was under no obligation to speak. The contract of insurance rendered a notice of thirty days, after the receipt of the proof of loss of an intention to replace, a condition precedent of the right of the defendant to do so. That right was forfeited by failure to give the notice in time. The mere silence of the plaintiff could not restore the right to rebuild. The judgment and order denying the motion for a new trial should be affirmed, with costs.


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    Elizabeth A. Gray, Resp’t, v. James C. Gray, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    Pleading—Answer—Striking out.
    The power of the court to strike out an answer for disobedience of an order has not been abolished by the Code.
    Appeal from an order striking out the answer.

      Baldwin & Boston, for app’lt; Man & Man, for resp’t.
   Pratt, J.

The power to strike out an answer for disobedience of an order has not been abolished by the Code, Brisbane v. Brisbane, 34 Hun, 339, and in the present case was wisely exercised. The order to that effect will be affirmed. u

An examination of the record on the appeal from the judgment shows that the plaintiff fully proved the cause alleged for dissolving the marriage. The only question upon which a doubt is possible is whether the plaintiff had acquired a domicile in New York prior to beginning her action. She had been in this state several months before the action was begun. She testified on the trial to her intention to fix her residence here, and the trial court credited her testimony. Her conduct before and after beginning the suit corroborated her testimony to such an extent that a finding against her on that point would have been error. The judgment is right, and is affirmed.

All concur.


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    James W. Fox et al., App’lts, v. Franz O. Matthiessen, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    1. Appeal—Intermediate orders.
    An order denying a motion to set aside a verdict for misconduct of a juror, and an order denying a motion to resettle the former order, are not intermediate orders within the meaning of § 1316 of the Code.
    2. Same.
    An intermediate order is one made between the commencement of the action and the entry of the judgment from which the appeal is taken.
    S. Same—Discretionary.
    A ruling, permitting a reopening of the case on rebuttal, is not reviewable on appeal. ,

      Appeal from a judgment, entered on a verdict in favor of defendant, and from an order denying, a motion for.a new trial.

      James M. Hunt, for app’lts ; Marlin J. Keogh, for resp’t.
   Brown, P. J.

This action was brought to recover commissions upon the purchase price of certain sugar refineries alleged to have been earned under an agreement with the defendant. Upon the trial the jury rendered a verdict for the defendant. The verdict was rendered on April 12, 1894, and an order entered on that day denying a motion for a new trial on the judge’s minutes, but judgment was not entered until June 16th. On May 5th the plaintiffs moved at special term, upon affidavits and upon the minutes of the trial to set aside the verdict and for a new trial, upon the ground of the misconduct of a juror; and an order denying such motion was made and entered on May 10th, and on May 26th another motion was made to resettle the order of May 10th, which was denied upon the same date, and an order duly entered. The notice of appeal in this ease is from the judgment, and states that the plaintiffs intend to bring up for review at the same time the order denying plaintiffs’ motion for a new trial upon the minutes and the orders of May 10th and May 26th. There is no appeal from any of the orders, except in the manner and form stated. The form of the appeal does not bring before us for review the orders of May 10th and May 26th.' Those were not intermediate orders. Section 1316 of the Code provides that an appeal from a final judgment brings up for review “ an intermediate order which is specified in the notice of appeal and necessarily affects the judgment.” A notice of appeal from a judgment which specified an order denying a motion for a new trial on the judge’s minutes was held, under this section, to bring up such an order for review. Hymes v. Van Cleef 39 St. Rep. 810; Pfeffer v. Buffalo Railway Co., 54 id. 342. But an order denying a motion to set aside a verdict on the ground of surprise, irregularity in the trial, and misconduct of one of the jurors has been held not to be an intermediate order necessarily affecting the judgment. Selden v. D. & H. Canal Co., 29 N. Y. 635 ; Hymes v. Van Cleef 39 St. Rep. 810. In the last case the court defined an “ intermediate order ” to be one made between the commencement of the action and the entry of the judgment from which the appeal is taken. The order appealed from in this case fall within the letter of that definition, but they do so merely from the fact that the defendant delayed entering the judgment long after he was entitled to do so, and not from any connection existing in law"or fact between the orders and the judgment. The motions were not addressed to the trial court, but to the special term, long after the circuit adjourned; and while it is a fact that, had they been granted, judgment would not have been entered, it is equally the fact that there was the legal right to enter the judgment immediately upon the rendition of the verdict, and neither the motions nor the orders that the court might make therein necessarily affected that right; and, if it was necessary for us to define an “ intermediate order,” we should designate it as oñe made between the commencement of the action and the time the successful party had a right to enter final judgment. We are of the opinion, therefore, that the orders denying a new trial for the misconduct of the juror are not before us for review, and the appeals therefrom are dismissed.

Upon the merits of. the case the testimony was of a most conflicting character. The jury adopted the defendant’s version of the case, and their determination of the facts is final. The exceptions to the exclusion of testimony are not sustained. The testimony offered in rebuttal was properly excluded. The facts which it was sought to bring out were not material to the controversy. It was not denied that Leonard and defendant had had frequent conversations both at their respective homes and oh the trams. The facts that defendant might have been frequently at Leonard’s home, or that he.was there on a Sunday afternoon when Leonard started for Philadelphia, or that he once had a long conversation with Leonard on the train, were all corroborative of Leonard’s testimony, and, if they had any relevancy to the case, tended to establish Leonard’s version of the contract. It was therefore a part of his original case, and he had no right to withhold a part of-his testimony until he had ascertained how far defendant’s testimony would contradict him, and then offer the balance in rebuttal. It was discretionary with the court how far it would permit a reopening of the case on rebuttal, and its ruling in that respect is not re viewable on appeal. We have examined the other exceptions, but there are none that require notice. The judgment and order denying a new trial on the judge’s minutes must be affirmed, with costs, and the appeals from the orders of May 10th and May 26th are dismissed, with $10 costs and disbursements.


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    The People ex rel. Richard M. Cunningham, App’lt, v. William H. Osborn et al., as Commissioners, etc., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    1. Highways—Pkescbiftioh.
    A private way, opened by the owners of land through which it passes for their own use, does not become a public highway merely because the public are also permitted for many years to travel over it.
    2. Same.
    Under § 100, chap. 568 of 1890, use of a road by the public,as a highway is necessary to create a highway by prescription.
    Appeal from an order, denying an application for a mandamus to compel the commissioners to open and*work a road.

      William D. Dickey, for app’lt; Eugene D. Stokem, for resp’ts.
   Dykman, J.

This proceeding was instituted for the procurement of a peremptory writ of mandamus which should command the commissioners of highways of the town of Tuxedo to remove the obstructions from a certain road in that town, which begins on the easterly side of a road leading from Arden to Bailytown, and terminates at a road leading from Dunderburg to Cedar Pond. An alternative’writ was granted, to which the commissioners made a return, in which they stated that the road had not been used by the general public for twenty years, and that they should not be required to remove the obstructions therein. It appeared from the papers used upon the application that the road in question runs through a wild gorge of the Orange Mountains, and was opened at first by the Greenwood Iron Company, for its own use in carting charcoal to the furnace of the company. It was never laid out or opened as a public highway. There was a trial before a judge of this court, without a jury, and he decided against the relator. It appeared upon the trial that the road in question runs through a wild, mountainous region, which is sparsely inhabited ; that it is an ordinary wood road; and that there are from 50 to 100 miles of roads similar to this tract of mountain land, of about 10,000 acres. The entire tract of land, including that over which this road passes, belongs to E. H. Harriman, who has owned it since 1886; and in the summer of 1892 he closed the road by placing a wire fence across it, and that is the obstruction of which the relator complains. There is no claim on the part of the relator that the public authorities of the town ever adopted or recognized this road as a highway, or made any highway assessments, or did any work upon it. When Harriman acquired the property, this road was impassable in many places, and he improved it, and put up notices along the same warning the public against traveling thereon, in June, 1892. The trial judge found that the road had been used continuously for more than 20 years by people having occasion to travel between points reached thereby. The evidence justifies the finding, and such use is all there is to clothe the road with a public character. That use alone is entirely insufficient to convert the road into a public highway by prescription, and there is no claim on the part of the relators that this road ever became a highway in any other manner.

The character of one of the mountain roads upon the same tract of mountain land was involved in the case of Harriman v. Howe. 78 Hun, .280 ; 60 St. Rep. 225. That was an action brought by Harriman against the commissioners of highways to determine the character of the road, and the proof of use there was substantially the same as it is here, and it was there decided by this court that proof of user alone of a road was insufficient to show it to be a public highway; that such use must be associated with some act showing such use to be claimed as a right, hostile to and independent of the will of the owner, such as reparation or the assumption of control of the road in some ostensible manner; that a private way, opened by the owners of land through which it passes for their own use,, does not become a public highway merely because the public are also permitted for many years to travel over it. The case of Speir v. Town of Utrecht, 121 N. Y. 420 ; 81 St. Rep. 414, is an authority for these conclusions. The reason and authority for our conclusion in that case are set forth with sufficient particularity and fullness, and the case is entirely decisive of this, with the exception of one point raised by the respondent, which we will examine now.

It is claimed in this case by the relators that' section 100 of chapter 568 of the laws of 1890, known as the ‘‘General Highway Law,” has wrought a change of the law of this state relating to highways by prescription. But we cannot yield our assent to this contention. We do not think that any such change was intended by the legislature.

The language of the new section is this :

“Highways by use. All lands which shall have been used by the public as a highway for a period of twenty years or more shall be a highway with the same force and effect as if it had been duly laid out and recorded as a highway, and the commissioners of highways shall order the overseers of highways to open all such highways to the width of at least two rods.”

The old statute was this :

“ All roads not recorded, which have been or shall have been used as public highways for twenty years or more, shall be deemed public highways.”

The words “ used as public highways,” as they are employed in the old statute, received a construction in the case of Speir v. Town of Utrecht, 121 N. Y. 420 ; 31 St. Rep. 414, and it was there held, as we have seen, that they required more than mere user. The words in the new statute are “used by the public as a highway,” and they are of the same purport and meaning as the words of the old statute. The new statute requires the use to be by the public, and the old statute required the roads to be used as public highways ; and they can be used as public highways only by the public, and therefore the use required by both statutes is the same. It is impossible to read the provisions of the two statutes in reference to the use of the roads which is necessary to create a right by prescription without observing the similarity between them down to the provision in the new statute for opening the roads. To that point the language in both has the same import and signification. Although the phraseology is slightly different, yet the requirements in relation to use by the public are the same in both.

But that does not exhaust the argument, and we must take a broader view of the subject. In the first place, it is to be observed that, wherever changes are made in the highway law of the state by the statute of 1890, they are all plainly specified; and, if it had been the intention of the legislature to make the radical change in the existing highway law for which the relator contends, such intention would have been expressed in unmistakable language. A statute which would make mere user by the public of the mountain roads in this state by the few persons who have occasion to use them sufficient to constitute them public highways, with all the rights and obligations pertaining thereto, would effect a fundamental change in the highway law, and involve important and serious consequences. It would convert wood roads, which have been used by persons in the vicinity for their convenience, into public highways, without compensation to the owners of the land, and be thus violative of the constitution of the state; and it would devolve upon the towns the duty of their reparatian, and render them responsible for injuries to persons and property by reason of defects and obstructions therein. In this very case such a construction of the statute would place fifty miles of mountain roads in such a category. If the legislature intended to enact a law which would involve consequences so serious, language would be used which would plainly express such intention. Instead of that, we have language employed in the new statute which plainly indicates an intention to re-enact the old statute in relation to the use necessary to constitute a prescriptive right to land for a public highway.

The following rule, prescribed in the case of Spier v. Town of Utrecht, supra, is applicable to this case :

“ But the mere fact that a portion of the public travel over a road for twenty years cannot make it a highway, and the burden of making highways and sustaining bridges cannot be imposed upon the public in that way. There must be more. The user must be like that of highways generally. The road must not only be traveled upon, but it must be kept in repair, or taken in charge and adopted by the public authorities.”

We think all this is implied in the words “ used as public highways.” The judgment should be affirmed, with costs.

Á11 concur.


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    In the Matter of Alfred C. Chapin et al. Resp’ts, v. Moritz Cohen et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.

    Condemnation proceedings—Report.
    The court will not set aside the report of commissioners in condemnation proceedings except for some error of law, or upon proof of fraud, or such glaring imperfection in the report, either of inadequacy or excessiveness, as shocks common sense and implies bias, prejudice, misconduct or want of judgment on the part of the commission.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Jeroloman & Arrowsmith, for app’lts; Albert G. McDonald (Howard O. Wood, of counsel), for resp’ts.
   Pratt, J.

It is not necessary to discuss at length the motion made herein to dismiss the appeal, as the case is before the court, and may as well be examined. Neither will we notice the fact that no certificate is attached to the case that it contains all the evidence, in view of the statement which is made that it contains all the material evidence upon the matter involved therein. No error of law on the part of the commission seems to be raised, but the report is sought to be set aside upon the ground that the award of damages is too small and against the weight of evidence, and that the act under which the proceedings were instituted is unconstitutional. As to the first, it is only necessary to suggest that the sworn statements of witnesses are not the ' only evidence in the proceedings. The commissioners viewed the premises, and arrived at their conclusions from such inspection as well as from the state-merits of witnesses. There was no refusal on the part of the commission to hear all the testimony brought forward by the respond-, ents, and, so far as appears, it was duly considered. It is impossible for the court to say that the award is not adequate. The practice is too well settled by a long line of1 decisions that the court will not interfere and set aside a report of such commission except for som eerror of law, or upon proof of fraud, or such glaring imperfection in the report, either for inadequacy or excessiveness, as shocks common sense, and implies bias, prejudice, misconduct, or want of judgment on the part of the commission. The case is bare of any proof to sustain the contention of the appellants that the award is in any respect illegal, or that it is against the weight of evidence. As to the unconstitutionality of the act of the legislature under which the proceeding was taken, it is only necessary to say that the points of the appellants make no suggestion, except that the award was not large enough in amount to give them just compensation. The constitutionality of an act of the legislature does not depend upon the amount of damages, but must be determined by an inspection of the act itself. Report confirmed, with costs.

All concur.