text:
    JOHN D. LYNN, as Receiver, etc., Appellant, v. FREEDOM SMITH, Respondent.

      Husband and wife — the creditors of the Husband cannot compel the wife to pay for services rendered to her by the husband.

    A receiver, appointed in proceedings supplementary to execution, cannot maintain an action against the debtor’s wife to recover the value of services rendered by the husband in carrying on the separate business of the wife, 'where such services were rendered without any express agreement on the part of the wife to pay him therefor.

      Kvngman v. Hranh (33 Hun, 471) distinguished.
    Appeal from a judgment, entered in Monroe county upon a nonsuit granted at the Monroe Circuit. '

      Horace McGuire, for the appellant.

      JRames Bros., for the respondent.
   Haight, J.:

The plaintiff was appointed receiver in proceedings supplementary to an execution issued upon a judgment against one John W. Smith. The defendant is the wife of John "W. Smith, and was engaged in carrying on a separate business. Her husband performed services for her in and about her separate business, and it was to recover the value of such services that this action was brought. The plaintiff to sustain his action reads the following testimony of the defendant taken in the supplementary proceedings: “I am the wife of John W. Smith; am at present engaged in the boat business with John W. Maser; I never made any arrangements with my husband about what I was to pay him for carrying on the boat business; I never paid him any salary; never had any settlement with him; all he had was his board and clothes; there is no writing between me and my husband in regard to the boat business.”

This is all the evidence that was given upon the subject of the employment. The only question presented for consideration upon this appeal is whether or not there is an implied contract on the part of the wife to pay for the services of the husband performed for her what the same were fairly and reasonably worth. It appears to us that this question may properly be disposed of upon a well established and familiar rule. There can be no question but that a husband and wife living together constitute the members of a family. The rule is that as between znembers of the same family the law will not imply a promise to pay for services rendered or board and lodging fuz-nished, but on the contrary will assume that they were rendered and furnished gratuitously unless an express promise is shown, or evidezzce given showizzg that there was an expectation to pay on both sides. (Dye v. Kerr, 15 Barb., 444; Ross v. Hardin, 79 N. Y., 90, 91.)

Cases az’e numez’ous in which a husband resides with his wife upon her sepaz’ate estate and is supported out of the proceeds thereof. The wife is not bound to support him, and if she does so it would be as reasonable to imply a contract on the part of the husband to pay her for his board, lodging, clothes, etc., as it would be to imply a contract on her paz’t to pay him for the services that he may pei’form for her. On either hand we think the services az’e performed, or the boaz’d and lodging furnished, bymembei’s of the same family, and under such circumstances that the law will presume that it was gratuitous and no pay was expected by either party.

If, however, we are in error in reference to this conclusion we are still of the opinion that no recovery can be had for other reasons. At common law no action could be maintained against the wife for the services of her husband. If any such action now exists it is by reason of the acts for the more effectual protection of the property of married women. These statutes give a married woman the right to hold real and pez’sona1 property separate from her husband. She can take by descent, devise, bequest, gift or grant from any person other than her husband. She can carry on a particular trade or business and perform labor in reference to her sole and separate estate. She may bargain, sell, assign and transfer real and personal property, or carry on any trade or business the same as if she were sole. She may sue and be sued in all matters having relation to her sole and separate property, and her property is no longer liable for the debts of her husband. The claim has been made that this legislation has had the effect to destroy the common law unity of husband and wife, and made them substantially separate persons for all purposes: but these statutes have recently received consideration by the Court of Appeals in the case of Bertles v. Nunan (92 N. Y., 152), and that court has held that the unity of husband and wife has not been wholly abrogated by these statutes.

These statutes are in derogation of the common law, and as such must be strictly construed. Prior to these statutes, by reason of the unity, the personal property of the wife became that of the husband, she could not carry on a separate business and could not sue and be sued in her own name in reference to such business. In these regards the unity of the husband and wife has been abrogated, but as regards other matters not covered by the statutes the unity still exists. As to these matters they are still regarded as one person, and the law will not imply a promise on the part of one to pay the other. Again, it appears to us that this question has been practicably settled in the case of Abbey v. Deyo (44 N. Y., 343-346). Upon this branch of the case, Hunt, 0., says: “ The appellant’s counsel insists that the services, the time and talents of the husband are valuable, and he has no more right to give them to his wife, as against his creditors, than to give her his property to their prejudice. The one, he says, is as much their property as the other. This argument is entirely unsound. The property of a debtor, by the laws of all commercial countries, belongs to his creditors. He must be just before he is generous. He must pay before he gives. Not so with his talents and his industry. Whether he has much or little, or nothing, his first duty is the support of his family. The instinctive impulse of every just man holds this to be the first purpose of his industry. The application of the debtor’s property is rigidly directed to the payment of his debts. He cannot transport it to another country, transfer it to his friend or conceal it from his creditor. Any or all of these things he may do with his industry. He is at liberty to transfer his person to a foreign land. He may bury his talent in the earth, or he may give it to his wife or friend. No law, ancient or modern, of which I am aware, has ever held to the contrary. No country, unless both barbarous and heathen, has ever authorized the sale of the person of a debtor for the satisfaction of his debts.” (See, also, Gage v. Dauchy, 34 N. Y., 293; Kingman v. Frank, 30 Alb. L. J., 444.)

Our attention has been called to the case of Kingman v. Frank (19 Weekly Dig., 554; S. C., 33 Hun, 471). That case, how ever, is clearly distinguishable from the one under consideration. There was an express promise to pay eight dollars per week. The action was brought upon the express promise and sustained by the First Department. This case is not in conflict with the views that we have expressed in reference to implied contracts. .

The judgment should be affirmed, with costs.

Headley and Childs, JJ., concurred.

Judgment aflirmed, with costs.


source: Caselaw Access Project

author: Haight, J.:

license: Public Domain

text:
    ALBERT E. REYNOLDS, Respondent, v. WILLIAM D. SWICK, Appellant.

      Practice — when a new trial may he had in a County Court on appeal from ajusttce’s judgment — ■ Code of Civil Procedure, sea. 3068.
    In an action of replevin brought in a Justice’s Court the complaint alleged that the property was of the value of $150, and the answer admitted it to be of the value of $130. The justice rendered a judgment that the plaintiff retain the property and recover eight dollars and forty-eight cents costs, but he failed to fix the value of the property. Upon an appeal taken by the defendant to the County Court:

      jgeld, that he was entitled to a new trial, under section 3068 of the Code of Civil Procedure; that in the absence of any finding by the justice as to the value of the property it might be determined by the pleadings.

      Mei'rül v. Pattison (44 How., 289) followed.
    Appeal from an order of the County Court of Niagara county, denying the appellant a new trial in that court on an appeal from a judgment in favor of the plaintiff rendered in a Justice’s Court.

      E. M. & F. M. Ashley, for the appellant.

      Henry M. Davis, for the respondent.
   Haight, J.:

This action was brought in a Justice’s Court of Niagara county to recover the possession oí a horse, with damages for the unlawful detention thereof. The justice rendered a judgment in favor of the plaintiff that he retain the possession of the property, and that he recover the sum of eight dollars and forty-eight cents costs. The justice, in his judgment, fails to assess the value of the property replevied. From the judgment so rendered the defendant appeals to the County Court of Niagara county, and in his notice of appeal demands a new trial in that court. The complaint alleged the value of the property to be the sum of $150, and demands judgment for the amount of twenty-five dollars for the unlawful taking and detention thereof. The answer admits the value of the property to be $130. The County Court, upon motion by the respondent to have the appeal determined to be one not for a new trial, held and decided that the defendant was not entitled to a new trial in that court; that the appeal must be heard upon questions of law only. From the order entered upon this motion, appeal was taken to this court.

Section 3068 of the Code provides that “ where an issue of fact or an issue of law was joined before the justice, and the sum for which judgment was demanded by either party in his pleading exceeds fifty dollars-; or where in an action to recover a chattel the value of the property as fixed, together with the damages recovered, if any, exceeds fifty dollars, the appellant may, in his notice of appeal, demand a new trial in the appellate court, and thereupon he is entitled thereto, whether the defendant was or was not present at the trial.”

Inasmuch as this action was to recover a chattel, the question upon this appeal turns upon the determination as to whether or not the value of the property as fixed exceeds fifty dollars. The Justices’ Court in its judgment neglected to fix the value of the property, so that it remains to be determined as to whether or not the value is fixed by the pleadings in the case. If so, we are of the opinion that it is within the provisions of the section which would permit a new trial. The complaint, as we have seen, alleges the value to be $150. The answer alleges the value to be $130 j so that by these pleadings it appears that the value is at least $130, and that it therefore exceeds the sum of fifty dollars. We are of the opinion that the defendant was, within the provisions of the section, entitled to a new trial.

The case of Merrill v. Pattison (44 How., 289) was a decision of the old General Term of this district, and sustains our construction of the above section of the Code. It is urged on the part of the respondent that this case is not applicable for the reason that there has been a change in the phraseology of the Code. But it appears to us that the change in the Code tends to weaken rather than strenghten the position of the respondent. The Opde as it then read was, “if the value ef the property as assessed,” etc., shall exceed fifty dollars. The words “ as fixed ” are now substituted in the place of the words “ as assessed,” and it appears to us that the change was made for the purpose of placing tho question beyond doubt. The value of the property may be fixed by the pleadings or by the judgment of the court, in either case if it exceeds fifty dollars the appellant is entitled to a new trial.

The order should be reversed, with ten dollars costs and disbursements.

Barker and Bradley, JJ., concurred.

Order reversed, with ten dollars costs and disbursements.


text:
    GERTRUDE E. SWART, in her own Behalf and in Behalf of all the other Heirs-at-Law of JACOB E. SCHERMERHORN, Deceased, Respondent, v. SEYMOUR BOUGHTON, ELLEN M. BOUGHTON and EMMA M. RICHER, Appellants.

      Prayer for relief — when considered in passing upon a demwrrer to the complaint — j facts and not conclusions of law must be alleged in the pleadings. i
    Although the failure of a plaintiff to pray for the precise relief to which he is entitled is not a ground for demurrer, yet the character and nature of the relief demanded may properly be considered by the court, when passing upon a demurrer interposed to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action.
    Where all of the allegations of the complaint are made for the purpose of procuring equitable relief, and that relief alone is asked for, the complaint cannot be sustained as a complaint in an action for legal redress, where no legal redress is asked for and where no answer has been served
    The complaint in this action after stating, among other things, that the plaintiff was one of the children of one Schermerhorn who had died intestate, seized in fee of a certain piece of real estate, alleged that the county treasurer of Monroe county executed, under his hand and official seal as treasurer of the county, for The People of the State of New York, a deed or conveyance of the said premises to the supervisors of that county, and that the supervisors of that county subsequently conveyed the same to one of the defendants; that these deeds were recorded in the office of the clerk of the said county, and that the defendant was in possession of the premises thereunder; that the deed to the supervisors is by an act of the legislature made presumptive evidence of the regularity of the proceedings; that the proceedings are regular upon their face, and that the defects claimed by the plaintiff to exist can only be made to appear by extrinsic evidence and will not necessarily appear in any proceedings at law by the said defendant to defend or enforce his rights under the conveyance.
    The complaint then alleged in general terms that the assessment, levy and sale were illegal and void, and that the acts required by the charter to be done prior to the assessment and conveyance had not been done, and that the deeds above mentioned were a cloud upon the title of the plaintiff and the other heirs-at-law of said Schermerhorn, and asked that such deeds be adjudged inoperative and void and generally for other relief.

      Held, that as the complaint itself showed aprima fade title in the defendant, and as no specific facts establishing the invalidity of this title were alleged, but mere conclusions of law, the complaint did not state facts sufficient to constitute a cause of action and that a demurrer thereto should be sustained.

      Appeal from an interlocutory judgment of the Monroe Special Term, overruling a demurrer to the plaintiffs complaint.

      WillÁam. A. Hawthorne, for the respondent.

      H. H. Woodward, for the appellants.
   Haight, J.:

The complaint alleges that Jacob E. Schermerhorn died intestate, seized in fee simple and in possession of the premises in question. That he left him surviving Mary A. Schermerhorn, his widow, and Gertrude E. Schermerhorn, William Schermerhorn, Armeta Schermerhorn and Herman F. Schermerhorn, his only heirs-at-law. That the plaintiff is the daughter of Jacob E. Schermerhorn, and is the same person mentioned as Gertrude E. Schermerhorn. That after the death of Jacob E. Schermerhorn, his widow, Mary A., conveyed all of her right, title and interest in the premises to one Chauncey Nash, and that the same, by subsequent conveyances, became vested in the defendant Seymour Boughton. The complaint further alleges, that on or about the 20th day of August, 1881, the county treasurer of Monroe county executed under his hand and official seal as treasurer of the county, for The People of the State of New York, as party of the first part, a certain deed or conveyance of the premises in question, to the supervisors of the county of Monroe, party of the second part, setting forth a copy of the deed. That the board of supervisors subsequently conveyed the same by quitclaim deed to the defendant Seymour Boughton. That these deeds ■are recorded in the office of the clerk of Monroe county, and that the defendant Boughton is in possession of the premises, receiving the rents and profits arising therefrom. That the defendant Emma M. Richer is in the actual occupancy of the premises as the tenant of the defendant Boughton. The complaint also alleges that the deed from the people of the State to the supervisors is, by act of legislature, made presumptive evidence of the regularity of the proceedings. That the sale and all proceedings prior thereto, from and including the assessment of the premises, and all notices required by law to be given, are regular, and that the deed appears to be valid on its face, and that the defects set forth in the complaint can only be made to appear by extrinsic evidence, which will not necessarily appear in any piuceedings at law by the defendant Boughton, in either defending or enforcing the right he claims under the statute. The complaint further alleges, that the tax levy upon the premises for the year 1877, and the assessment for that year as set forth in the deed, was not a good and valid assessment according to law, nor was the tax, as stated in the deed for the year 1877, a good and valid levy according to law, nor did the assessors make any legal or valid assessment, nor did the supervisors make or levy any legal or valid tax, but, on the contrary, the plaintiff alleges and avers, that the pretended assessment and tax for the year 1877, referred to in the deed, is utterly illegal and void, that all of the, proceedings had to collect or enforce the pretended tax were not done according to law, nor were the acts provided to be done prior to the executing and delivery of the deed, to entitle the board of supervisors to the conveyance, done or performed according to law, nor were any of the acts and proceedings that were required to be done by the charter of the city of Rochester, done or performed according to law, that all of the acts and requirements of the act of the legislature required to be done prior to the executing of the conveyance to the board of supervisors, and also all the acts required to be performed by the charter of the city of Rochester, have not been done in a legal manner, or according to law, or according to the provisions of the acts of the legislature, and according to the provisions of the charter of the city of Rochester, and are utterly illegal and void. The complaint then alleges that the deed from the people of the State to the board of supervisors, and the deed from the board of supervisors to the defendant Boughton, are a cloud upon the title of the plaintiff, and of the other heirs-at-law of Jacob E. Scliermerhorn, deceased, and prays judgment that such deeds may be adjudged inoperative and void. That they be vacated, set aside and canceled, and for such other and further relief as to the court may seem proper and equitable.

The defendants, Seymour Boughton and Ellen M. Boughton, his wife, demur to the complaint upon the ground: First. The complaint does not state sufficient facts to constitute a cause of action, Second. That there is a defect of parties. The defendant Emma Richer demurs separately, but upon the same grounds. The court at Special Term overruled the demurrers, and from the' interlocutory judgment entered thereon appeal -is taken to this court.

It is contended in the first place that the complaint states a good cause of action in ejectment. That it alleges the title of the plaintiff, that the defendant Boughton claims under another title which is invalid, and that his tenant is in possession of the land, receiving the rents and profits.

In the case under consideration the complaint concedes that the defendant Boughton is the owner of the dower interest in the premises of Mary A. Schermerhorn, and the complaint does not ask to recover the possession of the premises. In determining the' question as to whether the action is one in ejectment or not, it becomes important to inquire as to the form of judgment that could be entered upon the demurrer herein in case the defendants should not withdraw and serve answers. The plaintiff would then be entitled to final judgment.

Section 1207 of the Code provides that “ where there is no-answer, the judgment shall not be more favorable to the plaintiff, than that demanded in the complaint. Where there is an answer the court may permit the plaintiff to take any judgment consistent with the ease made by the complaint and embraced within the issue.”

This complaint contains the general prayer for such other and further relief as to the court may seem proper. If an answer had been put in, and a trial had, it is possible that the court might award the plaintiff possession of the land, but in granting judgment where there is no answer we do not understand that relief can be granted other than that specifically asked for. In the case of Simonson v. Blake (12 Abb. Pr., 331) the complaint asked for the foreclosure and sale of mortgaged premises and for the usual general prayer for relief. It omitted to ask for a judgment of deficiency-It was held that in a case where there is no answer the relief cannot exceed, that which is specifically demanded in the complaint; that it is not enough to state facts entitling the plaintiff to the relief; he must ask for it; that no deficiency judgment could be granted. (See, also, Peck v. The N. Y. and N. J. R. R. Co., 85 N. Y., 246; Bullard v. Sherwood, Id., 253.)

The only relief specifically asked for in this case is that the tax deeds.be vacated, set aside and canceled. No possession being-asked for, none could be awarded on final judgment upon the demurrer. The complaint asks for no relief that could be awarded by a jury. No trial by jury could be bad. Hence we conclude if any cause of action is stated it is merely an action to set aside the deeds as a cloud upon the title.

We do not forget that the failure of the plaintiff to pray for the precise relief to which he is entitled is not a ground for demurrer. But section 481 of the Code provides that the complaint must contain a demand for the judgment to which the plaintiff supposes himself entitled, and this demand may properly be considered by the court in determining the nature of the action set forth in the complaint, whether it is an action at law or one in equity; whether the parties would be entitled to a trial by jury or by the court.

In the case of Edson v. Girvan (29 Hun, 422) the action was brought against several defendants upon a jiromissory note. The relief demanded in the complaint was a judgment for the 'amount due thereon against the defendants and each of them. The defendant Girvan demurred to the complaint upon .the ground that it did not contain facts sufficient to constitute a cause of action against him. The facts stated in the complaint were not sufficient to authorize a judgment against Girvan for the amount of the promissory note, but were sufficient to authorize a judgment for an accounting. It was held that the demurrer should be sustained; that under section 1207 of the Code of Civil Procedure, no other or different relief could be granted than that demanded in the complaint; that no relief in equity was asked for, and as the defendant did not answer but' served a demurrer, this section of the Code is directly applicable.

In the case of Fisher v. The Charter Oak Life Insurance Company (67 How., 191) a demurrer was interposed to a complaint upon the ground that it did not state facts sufficient to constitute a cause of action, and was sustained upon the ground that the action was an action at law for the recovery of a specific sum óf money; that as the only relief demanded in the complaint was a money judgment against the defendant, no other or different relief could be granted; and that on the facts alleged the plaintiff was not entitled to a judgment for a specific sum of money.

In the ease of Alexander v. Katte (68 How., 262), the action was brought to restore notes alleged to have been canceled in pursuance of a wrongful scheme, to which the defendant was not a party, but of which he had cognizance. The complaint prayed judgment that the defendant produce and bring into court the notes and collaterals, and that they be declared assets of tke company, and a trust fund for the £>ayment of its creditors; that the collaterals be sold and applied to the satisfaction of defendant’s indebtedness, and that plaintiff have judgment against the defendant on the notes. The defendant demurred to the complaint. The court sustained the demurrer. Daly, J., in the opinion, says : The complaint is an application for equitable relief, and as the defendant does not answer but demurs, the judgment gi’anted could not be more favorable than that demanded in the complaint, even though averments that would be proper' in setting forth a legal cause of action are embodied in the pleading. Fart of the relief demanded is judgment for the amount of the defendant’s notes, but plaintiff must first obtain his decree as prayed for, that said notes are part of the assets of the company of which the plaintiff is receiver, before judgment for the amount of said notes can be awarded.”

In the case of Kelley, late Sheriff, etc., v. Downing (42 N. Y., 71), the complaint demanded judgment that the defendants “be adjudged to account to the plaintiff, late sheriff as aforesaid, for all moneys in their hands deposited by said Bailey, or‘for his account, applicable to the payment of the aforesaid note, and to pay the plaintiff so much thereof as may be sufficient to satisfy the amount due on said note with interest, and in the meantime that the defendants be enjoined from paying over said moneys to any other person,” etc. Earl, Oh. J., in delivering the opinion of the court, says: “ The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint; but in any other case, the court may grant him any relief consistent with the case made by the complaint and embraced within the issue. Here it is not claimed that a judgment upon the note is within the relief demanded against the defendant Bailey. No relief whatever is demanded against him, not even costs.” Again, he says: “ I go still further and hold that.a judgment upon the note would not be consistent with the case made by the complaint. It was not the object of this section to aid a plaintiff who had insufficiently stated the cause of action upon which he seeks judgment, but simply to aid him, if his complaint is adequate for the judgment he asks, except his prayer for relief. In this case the complaint stated but one cause of action, and that one in equity. A suit upon the note would have been an action at law. There was nothing in the whole framework of the complaint, nor in the prayer for relief, that would lead Bailey to infer that a judgment would or could be taken against him upon the note.” (See, also, Taylor v. Charter Oak Life Ins. Co., 9 Daly, 489 ; De Bussierre v. Halladay, 4 Abb. N. C., 111; Dusenbury v. Dusenbury, 4 N. Y. Civil Pro. R., 126; Bockes v. Lansing, 13 Hun, 38; S. C., affirmed, 74 N. Y., 437.)

It thus appears to us that where all of the allegations of the complaint are made for the purpose of procuring equitable relief and where equitable relief alone is asked for, the complaint cannot be sustained for legal redress where no answer has been interposed.

' Again, the complaint alleges that the county treasurer of Monroe county executed under his hand and official seal as treasurer of the county, for The People of the State of New York, a deed or conveyance of the premises in question to the supervisors of the county, and that the supervisors of the county subsequently conveyed the same to the defendant, Seymour Boughton ; that these deeds were recorded in the office of the clerk of the county, and defendant Boughton is in possession of the premises under them, receiving the rents, issues and profits ; that the deed to the supervisors is by act of the legislature made presumptive evidence of the regularity of the proceedings. The complaint contains no allegation of facts showing this deed to be void. If these allegations are true (and upon demurrer they must be so considered), then the defendant Boughton is in possession under a superior title to that of the plaintiff It thus appears that the plaintiff has failed to state a cause of action in ejectment, for the reason that her complaint contains allegations which would defeat her action as such.

It remains to be determined whether or not a cause of action is stated for equitable relief. It will be observed that the complaint alleges the deed from the people -of the state to be presumptive evidence that the sale and all proceedings .prior thereto, from and including the assessment of the premises,, and all the notices ' required by law to be given are regular. The complaint then in general terms alleges that the assessment, levy and sale, etc., were illegal and void and not according to the provisions of the statute, etc. No fact is alleged from which the court can determine whether or not the assessment, levy, sale or other steps necessary to perfect the title were illegal or void.

The allegations. as to the defects are conclusions of law only. Subdivision 2 of section 281 of the Code provides that the complaint must contain “a plain and concise statement of the facts constituting each cause of action without unnecessary repetition.” Pomeroy oh Remedies, at section 531, .states the rule as follows: “ Facts and not law must be alleged; and that averments of legal conclusions without the facts from which they have arisen form no issue, state no cause of action, admit no defense, and do not even support a verdict or judgment; in short they are mere nullities.”

In the case of Smith v. Lockwood (13 Barb., 209-216) it.was held that the averment that “ they have acted contrary to the act ” without setting forth in what manner, is not sufficient to entitle the plaintiff to any relief or redress.

In the case of the City of Buffalo v. Holloway (7 N. Y., 493) the action was for damages which the city had sustained in consequence of the defendant leaving a sewer open during its construction, so that one passing along the street fell in and was injured. The court in commenting upon the case, at page 498, says: “ The complaint instead of stating facts and circumstances to show that it was the duty of the defendant to erect and keep up lights, guards and barriers while the pit remained open, assumes that such was his duty and proceeds at once to allege a breach of this duty. The difficulty is a want of any statement of facts from which such duty arises, for an allegation of the duty is of no avail unless from the rest of the complaint the facts necessary to raise the duty can be collected.”

Among the allegations which the courts have condemned as legal conclusions, and for that reason, as forming no material issue and which have been rejected as failing to state a cause of action, are the following: In an action to recover damages for the wrongful interference with the plaintiff’s possession of certain lands, the averment that the plaintiff.“was entitled to the exclusive possession of the premises in question; ” in an action to restrain the collection of a tax on the plaintiff’s land, an allegation that the land “ is by the laws of the State exempt from taxation;” an allegation “that the title of the plaintiff to said lots, by virtue of said tax sale, is invalid from an irregularity in the notice of such tax sale; ” in an action to set aside a judgment for a tax, an allegation “ that no notice was given of the said proceedings, or a!ny of them,”, which resulted in the tax; in an action on contract, the allegation “ that the defendant neglected and refused to perform the stipulated act on his part according to the terms of the agreement.” (See Pomeroy on Remedies, § 531, and authorities there cited.)

The respondent, however, claims'that the rule has been changed in the case of Boyle v. The City of Brooklyn (71 N. Y., 1). But such we do not understand to be the effect of the decision in that case. The complaint in that case alleged that “the so-called Atlantic avenue between Flatbush avenue and Classon avenue, the whole of the southerly part thereof, that is to say, north of the plaintiff’s premises and fifty feet north thereof, is owned by certain individuals in fee, and is not and never has been legally taken for a public highway, street or avenue; and the persons who signed the petition for repaving as aforesaid, as owners fronting thereon, were not owners -and had no right to be included or considered as entitled to sign said petition.” The court held this allegation to be sufficient and to be an allegation of a fact. It is true that the allegation that the land never has been legally taken as and for a public highway, etc., may be a conclusion. It is followed, however, by the allegation that the persons who signed the petition, etc., as owners fronting thereon, were not owners and had no right to be included or considered. This is an allegation of a fact, and if true, the petition was fraudulent and void for the reason that it was signed by persons claiming to be owners, fronting upon the street, who were not owners. And from this fact the legal conclusion would -follow that the lands had not been legally taken.

In the ease of The People ex rel. Crane v. Ryder (12 N. Y., 433), the plaintiff’s complaint alleged that at an election legally held in the county of Putnam, pursuant to the statute in such case made, and provided, for the election of a county judge of that county, to discharge the duties of that office from the 1st day of. January, 1852, for four years, .Crane was duly and lawfully elected to the office for said term. That at said election a majority of the legal votes or ballots given and received thereat, were given and received for Crane for county judge, and that be was then and there, pursuant to the statute, duly elected to said office, etc. On demurrer, the complaint was held good. The rule, as stated by the court, is the same as stated by Pomeroy. In that case it was contended that the complaint was insufficient, for the reason that it had not particularly named the day on which the election took place. The court held that the day was fixed by general statute, and that the allegation was sufficient. Furthermore, it appears in this complaint that the relator received a majority of the ballots given - and received at the election for county judge. This is an allegation of a fact.

We are, therefore, of the opinion that this complaint is insufficient for the reason that it does not allege any facts from which we can determine whether or not the tax deed is illegal and void, and that the demurrers thereto, on the part of the defendants, should be sustained.

The judgment should be reversed and demurrers sustained, with leave to the plaintiff to amend her complaint in twenty days, upon paying the costs of this appeal and of the demurrers.

Barker, J., concurred; Bradley, J., dissented; Rumsey, not sitting.

So ordered.


text:
    ANNA LEONARD, as Executrix, etc., of CORNELIUS TEN BROECK, Deceased, Respondent, v. THE AMERICAN BAPTIST HOME MISSION SOCIETY and Others, Appellants.

      Will — right of an executrix to sell under a general beneficial power

    A testator, after giving to his wife all his real estate, consisting of two farms, for her natural life, and a legacy of $500 to Jane L. Hayford, provided in his will as follows: “All the rest and residue of my estate, real and personal, I give and bequeath to my beloved wife Anna Ten Broeck for her use and benefit during her natural life. It is my wish and intention that my wife Anna shall have the power and privilege to give to the poor, and for such charitable- ' and benevolent purposes as she may see fit, such sums and at such time and times as may best suit her pleasure out of my personal property. It is also my wish that if the use of the two above mentioned farms, and what shall be left. out of the avails of my mortgages and personal property after paying the above named sum to Jane L. Hayford, shall not be sufficient for the use and benefit of my wife Anna, then, in such case, I wish and it is my will that so much of my real estate be sold as may be necessary to furnish my wife Anna with such further sums of money as she may stand in need of to supply her wants during her natural life.”
    He appointed his wife executrix and conferred upon her “the power, as executrix of this my last will and testament, to settle and carry out all the provisions of this my last will and testament that are or shall be necessary to be done or performed during her natural life.” After the death of his wife he gave all that remained of the real and personal property to the defendants.

      Held, that under the will the widow took a general beneficial power of sale, which was, as to purchasers from her, converted by the statute (2 R. S., 732, § 81) into a fee absolute.
    That it was for the widow and not for the court to decide when a sale should be made.
    That an action to procure a decision of the court as to the necessity of a sale could not be maintained by the widow.
    Appeal from an interlocutory judgment, entered in Cattaraugus county upon a decision of the Cattaraugus Special Term. The action was brought to obtain a construction upon the will of Cornelius Ten Broeck. The will gave to his wife all the real estate of the testator, consisting of two farms, for her use and benefit during her natural life, a legacy of $500 to be paid out of his notes and mortgages to Jane L. Hayford, and also contained the further provisions set forth in full in the following opinion.

      J. H. Waring, for the respondent.

      Smith da Briggs, for the appellants.
   Haight, J.:

This action was brought for the purpose of obtaining a judicial construction of the will of Cornelius Ten Broeck, deceased, and for a determination whether or not the contingency contemplated by the will on which a sale of real estate was authorized to be made, had not happened. The court at Special Term held and decided that the plaintiff was not entitled to maintain the action for the construction of the will alone, but that she was entitled to maintain the action for the purpose of determining whether or not the contingency upon which a sale of the land was authorized has not happened in accordance with the true intent and meaning thereof. An interlocutory judgment was ordered and entered referring it to a referee to take the proofs that may be offered before him for the purpose of showing the amount which it may be necessary to raise to supply the plaintiff’s wants during her natural life, and the portion of the testator’s real estate which should be sold for that purpose, and to report the same to the court. The defendants appeal from this judgment.

It is contended in the first place that the complaint in the action does not authorize the judgment entered. The complaint sets out the will and all of the facts, it then asks for a judicial construction of the will upon various subjects, and in addition thereto it asks for a determination as to whether or not the contingency has not happened upon which a sale of the real estate was authorized according to the true intent, meaning and design of the will. It appears to us that this is broad enough to authorize the court to ascertain and determine whether or not the contingency has happened, and this question will be determined on the execution of the reference provided by the interlocutory judgment.

It remains to bé determined whether or not the duty devolves upon the court to determine the contingency and the amount of real estate it is necessary to sell, if any. In order to determine this question a construction of the will or a part thereof becomes necessary ; the will gives to one Jane L. Tlayford $500 to be paid out of the notes and mortgages of the testator. It then provides that “ all the rest and residue of my estate, real and personal, I give and bequeath to my beloved wife Anna Ten Broeck, for her use and benefit during her natural life. It is my wish and intention that my wife Anna shall have the power and privilege to give to the poor, and for such charitable and benevolent purposes as she may see fit, such sums and at such time and times as may best suit her pleasure, out of my personal property. It is also my wish that if the use of the two above mentioned farms and what shall be left out of the avails of my'mortgages and personal jn'operty, after paying the aboye named sum to Jane L. Hayford, shall not be sufficient for the use and benefit of my wife Anna, then, in such case, I wish and it is my will that so much of my real estate be sold as may be necessary to furnish my wife Anna with such further sums of money as she may stand in need of to supply her wants during her natural life.” He tlien bequeaths all that shall remain of his real and personal property at the death of his wife to the defendants. He appoints his wife, the plaintiff, executrix, and confers on her the power, as executrix of this, my last will and testament, to /settle and carry out all the provisions of this, my laát will and testament that are or shall be necessary to be done or performed during her natural life.”

A power is an authority to do some act in relation to lands, or the creation of estates therein, or of charges thereon, which the owner granting or reserving such power might himself lawfully perform. It is general where it authorizes the alienation in fee by means of a conveyance, will or charge of the lands embraced in the power, to any alienee whatever. It is beneficial when no person other than the grantee has, by the terms of its creation, any interest in its execution. (Sections 74, 77, 79, art. 3, tit. 2, chap. 1, part 2 of the R. S.; 1 R. S., 732.)

The statute further provides that where an absolute power of disposition not accompanied by any trust shall be given to the owner of a particular, estate for life or years, such estate shall be changed into a fee absolute in respect to the rights of creditors and purchasers, but subject to any future estate limited thereon in case the power should not be executed or the land should not be sold for the satisfaction of debts. (Section 81 of the same article.)

It will be observed that by the terms of the will, the plaintiff, as widow of the testator, was given a life estate in the real property and the use of the personal property during life with the privilege of giving to the poor and for such charitable and benevolent purposes as she may see fit, such sums as may suit her pleasure out of the personal property. That then, in case the property remaining shall not be sufficient for her use and benefit, a sale of so much of the real estate as may be necessary to furnish her with such further sums of money as she may stand in need of to supply her wants during life is authorized. He confers upon her as executrix the power to settle and ca/rry out all the provisions of the will that are or shall he necessary to he clone or performed during her life.

One of the provisions which may become necessary to carry out during her life is to sell the real estate or so much thereof as may be necessary to supply her wants. It thus appears to us that a power of sale is given to her as executrix, and that this power is a general power within the provisions of the statute. The executrix, being also the widow of the testator, is the person for whose benefit the power is created, and it therefore becomes a general and beneficial power.

The power and estate herein created are within the provisions of section 81 of the statute above referred to, and consequently the estate is changed into a fee absolute in respect to the, rights of creditors and purchasers; so that in case the plaintiff, as executrix, chooses to execute the power of sale given by the will, the purchaser gets a fee absolute, and the interests of the defendants therein cease. If, however, she does not see fit to sell under such power given, then the future estate given to the defendants remains. (Jackson v. Edwards, 7 Paige, 386 ; affirmed, 22 Wend., 498.)

The court at Special Term seemed to be of the opinion that under the will it was the duty of the court to ascertain and determine whether or not it was necessary that any portion of the real estate should be sold ; if so, what portion. Put it does not appear to us that this is the case, the will has authorized a sale and given a power of sale to the executrix, and it appears to us that it was the intention of the testator to leave it to the person to whom he had given the power of sale to determine the necessity for a sale and the amount thereof. To construe the will otherwise would be in conflict with the provisions of the statute to which we have already referred, providing that the estate should become a fee absolute in respect to the rights of purchasers. That this power of sale is given to the executrix by the terms of the will, we think there can be no doubt, as it is one of the things which may be necessary to be carried out by the provisions of the will. If, however, the power of sale is not by the express terms of the will given to the executrix, still a sale of the real estate is authorized on the happening of certain contingencies, and in that case the power will be regarded as conferred upon the executrix by implication. ’ (2 Redf. on the Law of Wills, 124.)

It follows, therefore, that under the provisions of the will, she took a general beneficial power, and that the statute converts thg,t power into a fee absolute as to purchasers. She may sell and dispose of so much of the real estate as she, in the exercise of her judgment and discretion, deems necessary for her support and maintenance, and the purchaser under such sale gets a fee absolute. The power being given to her to sell as executrix, the proceeds of the sale would go into her hands as such. ■

The will devises and 'bequeaths all that shall remain of the real and personal property at the death of the wife, to the defendants. The sale, if made, deprives the defendants of further interest in the real estate. The proceeds, however, become personal property, and will thereafter be held by the executrix as trustee. She can use therefrom so much as may be necessary for her maintenance, but the remainder, on her death, would go to the defendants. No claim is made that she has threatened or is about to commit wastes.

Our conclusion is that the interlocutory judgment is unnecessary and unauthorized. That inasmuch as the will has been practically construed in the determination of this appeal, no further trial is necessary. The plaintiff did not appeal from that portion of the judgment that was against her at Special Term, and we therefore are of the opinion that we should reverse the interlocutory judgment and order final judgment in the case, dismissing the plaintiff’s complaint, with costs of the action, and this appeal to be paid by 'the executrix out of the estate of the testator.

Bradley and Childs, JJ., concurred.

So ordered.


author: Haigiit, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. JOHN KELLY, Appellant.

      Tidal for murder in the first degree — when the question of premeditation and deliberation must be left to the jury — errors in theehwi'ge — when not euredby a subsequent modification thereof— defense of an alibi — it is error to charge that it is a suspicious defense — what evidence may be admitted to sustain the defense.

    The defendant was indicted and tried for murder in the first degree in killing one Lutz, from a deliberate and premeditated design to effect his death, and also for killing him while he, the defendant, was engaged in the commission of a felony. Upon the trial evidence was given tending to show that on the evening of October twentieth Lutz received ten dollars, being the wages for a week of himself and his son, and the defendant received at the same time from the same person two dollars for his wages; that at 'about one o’elock of the morning of the next day the defendant rapped at the door of the house where Lutz and his son lived, was admitted by Lutz, and went to bed with Lutz and his son; that during the night the defendant assaulted Lutz and his son, beating them over the head with a blunt instrument and inflicting- injuries upon Lutz from which he died; that he took the wages received by Lutz from the pocket of his waistcoat which hung by the side of the bed and appropriated them to his own use.
    The court in its charge defined the crime of murder in the first degree, but made no mention of murder in the second degree, or manslaughter, stating that it thought it would confuse the jury to state all the different grades of murder or homicide, and then added: “ There is not any opportunity, gentlemen, for you or me to compromise this case in any respect. It is a conviction of murder in the first degree or an absolute acquittal.” Upon the defendant’s exception to this charge the court said: “What I intended to say to you was that a verdict in this case other than that of guilty or not guilty would not, in my judgment, be borne out by the facts of the case. I say, however, to you that as a matter of right and power you can bring in a verdict of a lesser offense under an indictment charging murder in the first degree, and to that extent I modify my charge.” He also charged that if they believed the testimony of the son, who related what occurred in the house, that ‘ ‘ that alone is sufficient to enable you to find a verdict of guilty in this case.”

      Held, that as the taking of the money under the circumstances described did not amount to a felony but only to a larceny, and as the question of premeditation and deliberation was, under the circumstances, a question of fact for the jury, that the charge was erroneous.
    That the error was not cured by the modification afterwards made to the charge
    To obviate an erroneous instruction given by the court to a jury upon a material point,' the withdrawal must be absolute and be made in such explicit terms as to preclude the inference that the jury might have been influenced thereby.
    The defendant attempted to establish an alibi by showing that at the time the homicide was committed he was not near Lutz’s house but was in the city of Rochester. The court charged that “ an alibi is a species of defense which the law looks upon generally with great suspicion.”

      Held, that this was error.
    A witness, sworn in behalf of the people, was asked on his cross-examination if he had been convicted of an assault and battery in 1875, and sent to the penitentiary for two months, and answered that ,he had not. Thereupon the defendant offered in evidence a record of the conviction of a person of the same name for assault and battery in June, 1875.- Tne evidence was rejected by the court.
    Held, that under section 393 of the Code of Criminal Procedure, and section 832 of the Code of Civil Procedure, the record of the conviction was admissible in evidence and that the court erred in rejecting it.
    The people gave evidence tending to show that the defendant was seen soon after the homicide in the vicinity of the house in which it was committed. The defendant had given evidence to show that he was in a saloon at Rochester at4 about the time the people’s witnesses claimed to have seen him. A witness called by the defendant having testified that he had walked from one place to the other to see how long it would take to do so was asked at what time he leit one place and at what time he arrived at the other. An objection to the question having been sustained, he was then asked “ at what gait did you walk,” which question was also objected to and excluded.

      Held, that it was error to reject the evidence.
    Appeal from a judgment, entered upon a conviction of the appellant of murder in the first degree, at the Monroe Oyer and Terminer, and from an order of the court denying a motion for a new trial.

      Chamberlin dé French, for the appellant.

      Joseph W. Taylor, district attorney, foi1 the respondent.
   Haigiit, J.:

The indictment charges that John Kelly, on the 21st day of October, in the year 1883, at the town of Ohili, in the county of Monroe, willfully and feloniously, and from a deliberate and premeditated design to effect the death of Jacob Lutz, did make an assault upon and kill him. The indictment further charges, in another count, that at the same time and place said John Kelly, feloniously and by mean's of force and violence upon the person of Jacob Lutz, did kill him, whilst he, the said John Kelly, was engaged in the commission of a felony, etc. The deceased and his son, Jacob Lutz, Jr., a boy seventeen years of age, lived together in the town of Chili, abouj; four miles south of the court-house, in the city of Rochester, in a frame dwelling-house, near the Genesee Yalley Canal railroad. The deceased and his son were both employed by E. B. Chapin, in the phosphate factory, located near by, up to the time of the alleged murder. At the close of the day’s work on the twentieth of October, the deceased was paid ten dollars for his and his son’s wages for the week ending that day. The money paid consisted of four two-dollar bills and two one-dollar bills.' The defendant worked for the same man and and at the same factory in company with the deceased and his son. He was paid the sum of two dollars, being the balance due him for his week’s wages. The testimony of^ Jacob Lutz,'Jr., given on the part of the prosecution, is, in substance, that he and his father went home that night and went to bed about eight o’clock; that at about one o’clock, in the morning the defendant Kelly rapped upon their door and his father let him in ; that Kelly said that he had knocked a man down up in the city, and a policeman had chased him, and he wanted to stay all night with them, and that they all got into bed together. He then testified that he was awakened about three o’clock in the'morning by hearing his father scream; that he raised up in bed himself and received a blow upon his head; that the defendant Kelly was standing by the bedside striking -the witness and his father alternately on their heads with some implement; that he finally got out of bed and dressed, the defendant assisting him; that the defendant told him that two men had been in the house and assaulted them; that he then started to go to a neighbor’s; that the defendant followed him out to the railroad track, and there the defendant knocked him down by a telegraph pole; that lie left him laying there for a time and then took him by the feet and •dragged him into the woodshed; that he was kicked and choked, and then the defendant left him and went into the house again; that he heard his father scream again; that the defendant came back to him, kicked him, felt of his feet and then went away; that after the defendant left and went away, he crawled into the house and sat in a chair, until he was found by the witness Baker. Evidence was also given on behalf of the prosecution by John Baker and numerous other witnesses, who visited the house the next morning, which tended to show that the old man Lutz was found dead in bed, having. nine wounds upon the head apparently made by some blunt instrument, some of which had fractured the skull so that the brain was oozing forth. The bed was saturated with blood which had apparently flowed from the wounds. One of the boots standing by the bedside had blood upon the heel, with hair that resembled the hair upon the head of the deceased. The leg of the boot was crumpled up as if it had been clutched in the hand. The boy sat in a chair by the stove, having three wounds upon his head from which the blood had flowed down his face ■ and neck, saturating his clothes. He was apparently in a dazed condition and when he rose to walk was unable to do so. On an examination of the clothes of the deceased, only ten cents was found. An examination of the ground near the telegragh pole showed a pool of blood with some spatters upon the pole and fence. The ground also bore marks of some substance having been dragged over it from the telegragh pole to the woodshed. At the woodshed another pool of blood was found upon the floor. A coat was found at the house, which the boy identified as the one that he had on at the time, which "was covered with blood and dirt. In the pig-pen a hat was found which the boy identified as the one which he wore at the time, the inside of which was saturated with blood. Subsequently, ■a piece of iron pipe was found in the glue racks, near by, with blood stains and hair upon it. Rhe defendant was arrested that morning at half-past ten o’clock. There was found in his possession eight dollars and eighty-two cents, two two-dollar bills, two one-dollar bills, two silver' dollars and the balance in change. He had his hair cut that morning and paid a barber a two-dollar bill, receiving back a silver dollar and seventy-five cents in change. He had also paid a shoemaker for mending his boots a two-dollar bill, receiving in change a silver dollar and^ ten cent piece. There were blood spots on his coat, near the shoulder, and on one of the buttons, also on the knees of his pants and the bottom of the legs on the under side of the lap. The officer who arrested him testified that in answer to the question as to what he arrested him for, that he told him that there was a murder committed in the town of Chili; that Kelly asked him how he knew; that he answered that the son told him; that thereupon Kelly answered and said: “ I was not up to old Lutz’s house at all last night.” The officer testified that he had not mentioned the name of Lutz at all at that time. Other circumstances were given in evidence on the part of the people, with the evidence of the officers, as to the conversations had with him on the morning of his arrest

The defendant testified that he remained in the city of Rochester during the entire night; was not at Lutz’s at all, and did not commit the crime. The testimony of several witnesses was taken, showing that he was in saloons on St. Raul street the night before until about half-past eleven o’clock. Other evidence was given tending to show that he was in another saloon kept by one Mahar, on St. Paul street, about five o’clock the next morning.. He testifies that he slept in a lumber yard during the intervening time. Other evidence was given tending to show that the deceased and his son had frequent quarrels ; that the deceased was in'the habit of drinking to excess, and when intoxicated was quarrelsome. Ve have carefully read and considered all the evidence appearing in the appeal book. The evidence is of that character which makes it purely a question of fact for the jury to determine. There is evidence to sustain the verdict, and this court cannot, as matter of law, say that the verdict is against the weight of evidence. If the judgment is to be reversed, it must, therefore, be upon errors appearing upon the trial.-

The court, in its charge to the jury, defined the crime of murder in the first degree as the killing of one human being by another, when committed from deliberate and premeditated design to effect the death of the person killed, or when the killing is committed without any design to effect the death of the person killed, by a person engaged in the commission of, or in an attempt to commit a felony, either upon or affecting the person killed, or otherwise. The court made no mention of the crime of murder in the second degree or manslaughter, but it stated that it thought that it would confuse, if the court should explain all the different grades of murder or homicide which fall under the general term of homicide, and that it should exclude all other definitions of that crime which do not come within the facts embraced in the evidence. It then proceeded to charge as follows: “ There is not any opportunity, gentlemen, for you or me to compromise this case in any respect. It is a conviction of murder in the first degree or an absolute acquittal.” At the conclusion of the charge, the defendant’s counsel took exception to this charge, and subsequently the court charged as follows : “ "Wliat I intended to say to yon was that a verdict in this case other than that of guilty or not guilty, would n'ot, in my judgment, be borne out by the facts of the case. I say, however, to you, that as a matter of right and power, you can bring in a verdict of a lesser offense under an indictment charging murder in the first degree, and to that extent I modifj'- my charge.” The court also charged the jury as follows : If you shall say that you believe what Jacob Lutz says, I say to you that that alone is sufficient to enable you to find a verdict of guilty in this case.” This charge was also excepted to., by the prisoners counsel.

We are of the opinion that both of these charges were erroneous. The evidence of young Lutz is to the effect that the defendant was admitted into the house by the deceased; that he went to bed with the father and son with their consent; that the ten dollars that was -missing; the next morning the deceased had in' the pocket of his vest which hung up in the bedroom. The larceny of the money would, therefore, not amount to a felony. ¥e consequently fail to see upon what theory a conviction could be had upon the ground that the killing took place whilst he was engaged in the commission of a felony. If the killing was actually done by the defendant, and the killing was for the purpose of putting the deceased out of the way so that he could subsequently commit the larceny, then the case would fall within the definition .of a deliberate and premeditated design to effect death, and the larceny would be the motive for the crime. If, therefore, the conviction is to be sustained it should be upon the ground that the killing was intentional and with a deliberate and premeditated design to effect death. The coirrt in its charge said: “ There is not any opportunity for the jury to compromise this case in any respect. It is a conviction of murder in the first degree or an absolute acquittal.” This, in effect, takes from the jury that which belongs exclusively to it, the right and power to determine the intent, the deliberation and premeditation. And this is equally true in reference to the charge that in case they believed the testimony of young Lutz, that that alone was sufficient to enable them to find a verdict of guilty. In the case of Stokes v. The People (53 N. Y., 164) it was held that the charge of the court, in substance, that the legal implication from the fact of the killing was that the act was murder was error; that under the statutes classifying homicide mere proof that one has been deprived of life by the act of another fails utterly to show the class to which the homicide belongs. In the case of McKenna v. The People (81 N. Y., 360), the plaintiff in error was upon trial of an indictment for nmrder where the evidence was conflicting. The court charged the jury that if they believed the evidence offered on behalf of the people to be true, they would be justified in finding the prisoner guilty of murder in the second degree. This was held error on the ground that the existence of the intent to kill, which is the necessary ingredient of that crime, was a question to be determined by the jury from all the facts and circumstances; that from the charge as given, nothing being said concerning their duty in this respect, it might well have been understood by the jury as involving an opinion of the court upon this, as well as the other elements of the crime, that it was likely to mislead and prejudice, as it virtually excluded from the jury the question as to how far the testimony on the part of the prosecution was modified or neutralized by that produced by the defendant, or what inferences should be drawn from any of it. It appears to us that this case is in point and must be controlling upon the question here presented. Murder in the second degree is the intentional killing of a human being without deliberation and premeditation. In the first degree it is the intentional killing with deliberation and premeditation. The intention, deliberation and premeditation are operations of the mind and necessary elements of the crime, and their existence must be determined from the facts and circumstances of the case, and can only be ’determined by the jury. (People v. Conroy, 20 Weekly Dig., 242; S. C., 33 Hun, 119.)

Again, we are of the opinion that the charge was not cured by the modified charge. It is true that the court said that the jury, as a matter of right and power, could bring in a verdict of a lesser offense, but in the same connection it, was stated that “ a verdict in this case other than that of guilty or of not guilty would not, in my judgment, be borne out by the facts of the case.” If a verdict of conviction of a jury is not borne out by the facts of the case, it becomes the duty of the court to set it aside as against the evidence. It appears to us that the effect of that charge was that whilst the jury had the right and power to bring in a verdict of a lesser offense, still if they should such a verdict could not be sustained for the reason that it was not borne out by the facts. ' The court in the modified charge does not withdraw or substantially change the former charge made upon the subject. When upon a criminal trial the judge in charging the jury lays down erroneous propositions, hut, upon his attention being called thereto by objections, corrects rhe misdirections and lays down the correct rule, no error is presented for review. But to obviate an erroneous instruction upon a material point the withdrawal must be absolute and in such explicit terms as to preclude the inference that the jury might have been influenced thereby. (Greenfield v. The People, 85 N. Y., 75-90; Eggler v. The People, 56 id., 642; Chapman v. Erie Railway Co., 55 id., 579.) The case of Sindram v. The People (88 N. Y., 196-202) is clearly distinguishable. The judge charged that “there is no doubt about the assassination,” but immediately added thereto' that the deceased person was killed; ” in other words, the court only meant and was understood to charge that there was no question raised in reference to the killing; that being a conceded fact upon the trial there was no error. Upon an exception being taken to the charge of the court that the testimony seems to be overwhelming in favor of his having uttered the expression that he would return on Wednesday and make a bloody row,” the judge changed the expression and stated that he was only expressing an opinion and that he left all the questions of fact to the jury; that there was to be no thirteenth juror in the box, etc. It was held that the court had sufficiently withdrawn the erroneous charge. In the case of Buel v. The People (18 N. Y., 492) the plaintiff in error was on trial charged with murder whilst engaged in the commission of the crime of rape. The court instructed the jury as to the provisions of the statute where the killing takes place whilst a person is engaged in the commission of a felony, and omitted to instruct the jury as to the provisions of the other statutes constituting murder in the second degree, or manslaughter. The defendant made no request of the court to instruct the jury upon those statutes. The coui’t held that it was not error; that the defendant, in case he thought the evidence brought the crime within the definitions of murder in the second degree, or manslaughter, should have asked the court for the proper instructions: But this case is clearly distinguishable. In the crime charged, for killing whilst engaged in the commission of a felony, deliberation, premeditation or intent to kill, is not a necessary ingredient of the crime. And again, the charge was not to the effect that they must convict of murder in the first degree or else acquit. It simply instructed the jury as to what constituted the crime of murder in the second degree, and then left it to the jury.

The court also charged the jury that an alibi is a species of defense which the law looks upon generally with great suspicion.” The chief defense interposed by the defendant was an alibi. It is but natural that a person who has committed a crime should seek to get away from the scenes of his crime and to avoid detection. It is undoubtedly true that the defense is often resorted to, and at times attempted to be sustained by false and perjured testimony. The testimony given to establish the defense may or may not be suspicious, depending largely upon the circumstances and the character of the witnesses giving it. It is proper for the jury to scan with care the testimony given, for the purpose of determining whether it is true or false, but we do not understand that the law regards the defense as a suspicions one. On the contrary, the defense is as honorable, and when clearly proved as satisfactory, as any defense which the law permits. If a person is charged with the commission of a crime in the city of Rochester, and the person charged can satisfactorily show that at the time' the crime was committed he was absent in the city of New York, surely such a defense is a meritorious one, and if acquitted he should not be subjected to the charge that he was acquitted upon a suspicious defense.

Upon the trial, one Gottlied Nodecker was sworn on behalf of the people, and gave material testimony. On the cross-examination by the prisoner’s counsel, he was asked if he had been convicted of an assault and battery in 1875, and sent to the penitentiary for two months; he answered that he had not. Thereupon the prisoner’s counsel offered in evidence a record of conviction of Gottlied Yodecker, for an assault and battery, dated June 1, 1875. The district attorney objected. The objection was sustained and exception taken. Section 832 of the Code of Civil Procedure, provides : “A person who has been convicted of a crime or misdemeanor is, notwithstanding, a competent witness in a civil or criminal action or special proceeding, but the conviction may be proved for the purpose of affecting the weight of his testimony, either by the record or by his own cross-examination, upon which he must answer any question relevant to that inquiry, and the party cross-examining him is not concluded by his answer to such a question.” Section 392 of the Code of Criminal Procedure, provides, that “the rules of evidence in civil cases are applicable also to criminal cases, except as otherwise provided in this Code.” It appears to us that this evidence was competent under these provisions of the Code.

Alfred J. De Lacy was sworn on behalf of the defense, testified that he lived in the city of Rochester and knew where Chapin’s bone-works were situated; that he was there last Tuesday; that lie went there to walk the distance and see what time it would take. The question was then asked: “ You may state what time you left here and what time you reached there ? ” This was objected to by the district attorney. Objection sustained and exception taken. Defendant’s counsel then offered to show the time that it takes a man to walk the distance, and asked the further question: “At what gait did you walk?” This was objected to. Objection sustained and exception taken. The prosecution had given evidence on the part of an engineer and fireman that were running an engine out on the morning of the homicide, who testified that they saw a man on the railroad track, going toward the city, at about half-past five o’clock in the morning, and this was in the vicinity of the switch, near the house of the deceased. They described his gait as a shuffling, shambling gait, with quick step. They also described his coat and hat. Other evidence was given on the part of the prosecution tending to show that the defendant’s walk was peculiar ; that he had a shuffling, shambling gait, quick step, etc., and that the prisoner’s coat and hat were similar to those described by the engineer and fireman. This evidence was introduced on the part of the prosecution for the purpose of showing that the defendant was in the vicinity of the crime at that hour in the morning, and that his story that he had remained in a lumber yard in the city over night was not true. The defense had given evidence tending to show that he was in Mahar’s saloon, on St. Paul street, the barber shop and shoe shop, at an early hour in the morning, and for the purpose of showing that he could not have been the individual seen by the engineer and fireman approaching the city on the railroad track, the defendant sought to show that he could not have walked from the place described by them to the city so as to have been at Mahar’s and the barber shop at the time described by the witnesses who testified to seeing him there. If De Lacy had walked the distance and timed himself whilst walking it, it appears to us that the testimony would have been competent and material. There are numerous other exceptions taken to the admission and rejection of evidence, but none which we think it necessary to consider.

For the reasons stated, we are of the opinion that the judgment-must be reversed and a new trial ordered, and for that purpose the proceedings should be remitted to the Court of Oyer and Terminer of Monroe county.

Bradley and Childs, JJ., concurred.

So ordered.


author: Lewis, J.;

text:
    In Matter of the Application of the NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY to Appraise Lands, etc., Respondent, v. CAROLINE PIERCE, LAURA C. K. POMEROY and the BUFFALO TRANSPORTATION AND WAREHOUSE COMPANY, Appellants. SAME v. SAME.

      •Taking lands for railroad purposes — damages can he allowed only for real property taken — none can he allowed for an injury to, or for the cost of removing personal property.

    Appeal by Caroline Pierce and Laura C. K. Pomeroy, the owners of the fee, and the Buffalo Transportation and Warehouse Company, lessees, from the report and appraisal of commissioners appointed to appraise lands, and also from an order of the Special Term of Erie county, denying the motion of the owners of the fee and lessees to set aside the report.
    The premises, sought to be condemned by the petitioner consist of a strip of land in the city of Buffalo, 9T.50 feet in width extending from the Erie canal westerly to Lake Erie about 1,000 feet, excepting therefrom 100 feet in width through the lot owned and occupied by the petitioner for its tracks. Improvements have been made upon a portion of the premises lying west of and adjoining the petitioner’s land, consisting of docks and warehouses constructed upon piling. The Buffalo Transportation and Warehouse Company is assignee of a lease thereof for the term of ten years from May 1, 1884, with the right of renewal for five years, and also own the improvements upon the lot. The petitioner having instituted proceedings to condemn these premises for railroad purposes, commissioners were appointed. They made a report appraising the property at $81,120, dividing the same as follows: To the tenants for their leasehold interests $11,000; to the tenants for value of the improvements $17,670, and the further sum of $650 to pay for the removal of their personal property stored on the premises; to the owners of the fee $51,800. The commissioners’ report, on motion, was confirmed at the Erie Special Term, and the appellants having moved to set aside the appraisal and report, the motion was denied. An appeal was taken by the owners and lessees from the order confirming the report, and from the appraisal and report of the commissioners.
    The General Term, after holding that the report of the commissioners should be upheld, said: “ The commissioners, however, erred in awarding to the tenant $650 compensation for the expense of removing the personal property on the premises, there being no proof that the removal now would cost more than at expiration of the term of the lease. The section of the Constitution authorizing the act, by virtue of which these 'proceedings are instituted, contemplates the taking of real property only. The petitioner cannot, by these proceedings, condemn personal property. The statute provides, that the commissioners shall ascertain and determine the compensation which ought justly to be made by the company to the owners or persons interested in the real estate appraised by them. They are not to consider the damage to personal property. Having awarded compensation for the value of the leasehold and for the improvements upon the land, the tenants are fully compensated. In proceedings under the statute of California, similar to ours, it was held that such damages were not allowable (O. P. P. P. Co. v. Pearson, 35 Cal., 263), and the same rule is laid down in the ease of Edmands v. Boston (108 Mass., 537). The entire value of the real estate is all that can be awarded to the several owners. (Mills on Eminent Domain, § 65.) The commissioners having determined the compensation which ought justly to be paid to the claimants to be $81,120, they award of this sum $650 to the Buffalo Transportation and "Warehouse Company, for the expense of moving the personal property on said premises. Their report in this respect is erroneous, and should be returned for correction were it not that the attorneys for the petitioner and tenant have left with the court a stipulation, consenting, if the court should be of the opinion that the $650 were improperly taken from the gross amo\mt awarded, the same may be remitted to the owners of the fee, Pierce and Pomeroy, and the award modified to that extent. As this correction of the report is in the interest of the owners of the fee, we see no objection to such amendment. Such correction being made, the order denying the contestants’ motion to set aside the report, and the appraisal and report of the commissioners so corrected, and the order of the Special Term, should be affirmed, without costs.”

      Norris Morey, for the Buffalo Transportation and Warehouse Company, appellant.

      James Thomson, John G. Milbv/rn and E. O. Henderson, for Pierce and Pomeroy, appellants.

      Daniel H. MeMillam,, for the petitioner, respondent.
   Opinion by

Lewis, J.;

Barker, Haight and Bradley, JJ., concurred.

The appraisal and report of the commissioners, modified by awarding to the owners of the fee the item of $650, awarded to the tenants for the expenses of the removal, and as so modified affirmed, without costs of this appeal to either party.

Order of Special Term denying motion to set aside appraisal and report affirmed, without costs.


author: Bradley, J.;

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ALBERT L. DEWEY, Appellant.

      Criminal law — indictment —forgery of a mortgage — ra/riance between the description of the instrument described in the indictment, and the one produced at the trial.

    Appeal by the defendant from a conviction, at the Ontario Oyer and Terminer, of forgery in the third decree and the judgment thereon.
    The defendant was charged by the indictment with the crime of forgery, which was alleged to have been committed in the county of Ontario on the 18th day of October, 1881. By the verdict of the jury he was found guilty, and by the judgment of the court sentenced to imprisonment in the Monroe County Penitentiary for the term of three years. This appeal is taken from that conviction' and judgment. The first count of the indictment charged that the defendant feloniously did falsely make, forge and counterfeit, and cause and procure to be falsely made, forged and counterfeited, and willingly act and assist in the false making, forgery and counterfeiting, a certain instrument in writing, commonly called a mortgage, for payment of money, which said false, forged and counterfeited instrument in writing, commonly called a mortgage, for payment of money, is as follows, that is to say: * * * And it then set out an instrument purporting to be a mortgage of date, October 18, 1881, made between Thomas K. Willis, of Richmond, in the county of Ontario, of the first part, and the commissioners for loaning certain moneys of the United States, .of the county of Ontario, of the second part, granting certain lands situated in said town of Richmond, conditioned for the payment of $1,200 on the first Tuesday of October, 1886, and interest annually on the first Tuesday of October. , Signed and sealed by Thomas K. Willis and witnessed by James Todd and Peter James, and then proceeds, with intent to injure and defraud the United States and divers other persons to jurors unknown.
    On the trial, at the close of the evidence, the defendant’s counsel contended that there was no crime charged in the indictment, and that there was no proof to charge the defendant with the crime of forgery. The court held that there was not sufficient alleged in the indictment to charge him with forgery in the first degree, but that it was sufficient to charge the crime of forgery in the third degree, and overruled the contention of the defendant’s counsel.
    Evidence was given tending to show that the defendant while acting as commissioner to loan the United States Deposit Fund, forged the names of fictitious persons, as mortgagors and witnesses in the blanks in the commissioners’ books, to conceal a defalcation. That, upon paying to his successor in that office the amount of the pretended mortgage, the latter tore the signatures from the book and gave them to the defendant.
    The court at General Term, after overruling certain objections taken by the defendant’s counsel, said: “ The counsel for the defendant by several objections to the admission of evidence raised the questions on the trial and now contends, that there was a variance between the indictment and the evidence offered in respect to the instrument in question because: 1. .The indictment did not allege that the instrument was, or purported to be, a mortgage, nor did it allege that it was a sealed instrument, and therefore failed to allege one that would have been valid if genuine. 2. The instrument set out in the indictment purported to have been executed by Willis with his seal, while that put and offered in evidence had neither, and the indictment contained no allegations to permit evidence in that respect.
    “ The charge of forgery cannot be predicated on an instrument which would be void if genuine. (People v. Harrison, 8 Barb., 560, 562; People v. Galloway, 17 Wend., 542; Cunningham v. People, 4 Hun, 455.) That is not this case. The instrument in question would be valid as a mortgage if genuine. But it is contended that the indictment fails to allege such an instrument, inasmuch as it is not averred that it was a sealed instrument or under seal, and that no allegation is found which imports that it had that quality. And reference is made to the rule in pleading that setting forth a writing with the usual words at the close of a sealed instrument and the mark of a seal at the end, cannot be construed as an allegation that the paper so set out in hceo verba is a sealed instrument. (Van Sa/ntwood v. Sandford, 12 Johns., 3 97; Macomb v. Thompson, 14 id., 207; Stanton v. Camp, 4 Barb., 274.) The indictment charges the forgery of a “ certain instrument in writing, commonly called a mortgage, for payment of money.” The instrument, as there set forth, appears to be a mortgage of real estate which requires a sea.1 to render it an instrument, commonly called a mortgage, of that character. It is sufficient that the allegations of an indictment are such as to import that the instrument set out is a sealed one. (Paige v. People, 6 Park. Crim. B., 683; Bonnell v. Griswold, 68 N. Y., 299; Webster v. People, 92 id., 422; Phelps v. People, 72 id., 334.) The manner of representing by allegation the substantial matters requisite to the crime is not important. The statute was that no indictment should be deemed invalid, nor should the trial and judgment or other proceedings thereon be affected “ by reason of any other defect or imperfection in matters of form which shall not tend to the prejudice of the defendant.” (2 B. S., 728, § 52, sub. 4.) And the present statute is to the same effect and more liberal and protective against objections of technical character. (Code Crim. Pro., §§ 284, 285.) The instrument as set forth in the indictment advised what was intended by the charge that it was commonly called a mortgage, and seemingly as effectual as if the term “ real property ” or “ land ” had been used and made part of the allegation in proper connection with the use of the term mortgage. But it is unnecessary here to determine that question for the purposes of this case, and we therefore express no opinion whether or not the indictment is sufficient to justify or support a conviction for forgery of a mortgage of real estate. The instrument set forth contains a personal covenapt to pay upon a consideration also stated in it, which clearly makes the indictment sufficient as a charge of forgery in the third degree. And the matter of seal becomes unimportant. It was not necessary to the sufficiency of the indictment to allege that the instrument purported to be the act of another by which a pecuniary obligation isj or purports to be, created, or by which rights of property are, or purport to be, transferred, etc., but, it is sufficient that the indictment alleges that the defendant falgely forged, etc., an instrument which comes within the meaning of the statute, and that it be set out verbatim. {People v. Pynders, 12 Wend., 425; People v. Stearns, 21 id., 409; Kolmes v. People, 15 Abb., 154; People v. Clements, 26 N. Y., 193; PoseTcrans v. People, 3 Hun, 287.) And it is not necessary by allegation to define or characterize the instrument further than to set it forth as such in the indictment. The description of it is deemed included in allegation when it thus appears, and is charged, to be the instrument forged. {Gray v. People, 21 Hun, 140, 144, 145, and cases before cited.)
    The fact that the name of Thomas EL Willis and the seal did not appear on the forged mortgage when it was put in evidence, did not present such a material variance between the indictment and proof as to make the latter inadmissible, nor did that condition require any explanatory allegations to- permit parol evidence of the circumstance of the mutilation and detachment referred to. The instrument was fully set forth as it was when in perfect condition. And by the evidence it appears that Benham, the successor of the defendant, tore from it the portion which did not appear when the instrument was produced at the trial and handed the fragment to the defendant which, the latter failed to produce.
    The record does not show that the witness stated when this was done, but the fair inference from the evidence is that he did it at the time or after the moneys appearing to be secured by the instruments were paid The tearing out the names and seals of mortgagors is an approved method of canceling mortgages taken by the commissioners. (Laws 1837, chap. 150, § 28.) It was sufficient in the indictment' to allege the description of the forged paper as it was when complete. But when that cannot for any Cause be done it may be desirable and important to give- the best description practicable and support omissions and possible inaccuracy by allegation of circumstances in explanation and modifying the exact certainty of the alleged description with a view to the supply and variation which the evidence may produce. (.People v. Kingsley, 2 Cow., 522; People v. Badgly, 16 Wend., 53.) But this ordinarily would be treated as matter of form, and come within the statute before referred to protecting against error. (Tomlinson v. People, 5 Park. Crim. K., 313, 319.) The evidence to supply the defective condition so produced by taking out the name and seal, and to show that before then it was complete in form, was competent. (Enders v. Sternbergh, 2 Abb. Ct. App. Dec., 31; Commonwealth v. Snell, 3 Mass., 81.)
    The contention of the defendant’s counsel that the admission of evidence tending to prove that there was a deficiency in his accounts as commissioner was error, is not supported. It is true as a rule that evidence to the effect that a defendant has committed a crime other than that alleged in the indictment is not competent upon the question of his guilt in respect to that with which he is charged. (Coleman v. People, 55 N. Y., 81.) That was not the purpose of this evidence It was received as bearing upon the question of his motive., and intent having relation to the charge for which he was on trial. And in such case evidence is not incompetent because it may charge him with official delinquency and might go in support of a charge for another crime. (Copperma/n v. People,. 56 N. Y., 591; Coleman v. People, 58 id., 555, 560.)
    All the questions presented by exceptions, and upon the sufficiency of the evidence to support the verdict, have been examined. None of them seem to be well taken. The result was fairly justified and supported by the evidence.
    The conviction and judgment should be affirmed.

      Edwin Kicks, for the appellant.

      Oliver O'. Armstrong, for the respondent.
   Opinion by

Bradley, J.;

Haight and Childs, JJ., concurred.

Judgment and conviction affirmed, and proceedings remitted to the Court of Oyer and Terminer of Ontario county.


author: Haight, J.;

text:
    JOHN B. LOOMIS, Respondent, v. HUGH J. JEWETT, as Receiver, etc., of the ERIE RAILWAY COMPANY, Appellant.

      A passenger can only be put off a tn'ain at a usual stopping place or nea/r a dwelling-house —when the question whether or not a dwelling-house is “ new, ” within the meaning of the statute, should be submitted to the jury —1850, chap. 140, see. 35.
    Appeal from a judgment in favor of the plaintiff, entered upon a verdict rendered at the Monroe Circuit, and from an order of the Monroe Special Term denying a motion for a new trial made on a case and exceptions.
    This action was brought to recover damages which the plaintiff claims to have sustained by reason of being put off of oiie of the defendant’s passenger trains by the conductor.
    The plaintiff was put off the train because of his attempt to ride thereon under a stop-over ticket, in violation of the terms thereof
    The court charged the jury that the plaintiff had no right to ride from Canisteoto Hornéllsville upon the stop-over check; that it was his duty to have paid his fare. It was contended, however, on the part of the plaintiff that the night was dark and that he was not put off from the train at any usual stopping place, or near any dwelling-house.
    The court at General Term, said: “ If the verdict is sustained we are of the opinion that it must be upon this ground: The statute (1850, chap. 140, § 35) provides that £if any passenger shall refuse to pay his fare, it shall be lawful for the conductor * * * to put him and his baggage out of the cars, using no unnecessary force, at any usual stopping place or near any dwelling-house, as the conductor shall elect on stopping the train.’ The plaintiff testified that there was no house or crossing near the place where he was put off; that it was very dark. The conductor testified that there was a farm house twenty-five rods from the crossing and thirty rods from the train; that the train was about five rods from McGee’s crossing. The conductor was corroborated by some of the other testimony given. The court in its charge submitted this question to the jury upon proper instructions, and under all of the circumstances in the case we are inclined to think the trial court was correct in so submitting it. We can hardly say as matter of law, that a dwelling-house twenty-five or thirty rods distant upon another highway is within the contemplation of the statute a near dwelling-house in a dark night, its vicinity being unknown to the passenger. None of the exceptions in the case appear to be well taken. ”

      WilMam H. Shejpa/rd, for the appellant.

      J. <& Q. Van Voorhis, for the respondent.
   Opinion by

Haight, J.;

Barker and Bradley, JJ., concurred.

Judgment and order affirmed.


author: Barnard, P. <7.:

text:
    In the Matter of the Application of the Trustees of the HEDDING METHODIST EPISCOPAL CHURCH, of Poughkeepsie, to Compel the Executors of the Last Will of MATTHEW VASSAR, Jr., Deceased, to Render an Account, etc.

      Proceedings to compel the payment of a legacy — a surrogate cannot decide disputed questions arising therein— Code of Oiril Procedure, seas. 2717, 2718.
    A testator having by his will bequeathed to each of seven churches, naming them, the sum of $7,000, to be paid to and used by each as therein provided, one of the churches applied to the surrogate, under section 2717 of the Code of Civil Procedure, to compel the executors to pay the legacy alleged to be due to it. The executors filed a verified answer objecting to the payment of the legacy on the grounds that it was not certain that the petitioner was the corporation to which the legacy was given, and on the ground that the amount of the legacy given was in doubt.

      Held, that the surrogate should have dismissed the. proceedings as he had no power to lake proof as to the facts disputed by the answer.
    Appeal from a decree of tlie Surrogate’s .Court of Dutcbess county, directing the, executors of Matthew Yassar, J r., to pay over to the petitioner a legacy bequeathed to it by the said Yassar in his will.

      Thompson, Weeks & Town, for the executors, appellants.

      W. Fwrrmgton, for the Hedding Methodist Episcopal Church, respondent.
   Barnard, P. <7.:

This appeal does not bring up the merits of the two questions raised by the executors of the will of M. Yassar. The questions arise under a clause in the will in these words, I give and devise to each of the following named churches in the city of Poughkeepsie : The Hedding Mission, Congregational, German Lutheran, Baptist, Holy Comforter and Orthodox Friends Society, the sum of $7,000 to be paid to the treasurer or governing body of each church respectively, and to be held in trust by said churches or societies and invested in the securities hereinafter described, and the income thereof to bo applied in their discretion for the purchase of books, tracts and papers for the use of their respective Sunday schools.”

The trustees of the Hedding Methodist Epispcopal Church of Poughkeepsie individually apply to the surrogate of .Dutchess county to compel the payment of $7,000. The application is made under section 2718 of the Code. By this section it is made the duty of the surrogate to dismiss the proceedings when a verified answer is filed setting forth facts which show that it is doubtful whether the petitioner’s claim is valid and legal, and denying its validity or legality absolutely or upon information and belief. The, dismissal of the petition is by the same section declared to be without prejudice to an action or accounting in behalf of the petitioner. The first objection set out by the executors is that the legacy is not given without doubt to the petitioners. There is no such church as the Hedding Mission Church in Poughkeepsie. The correct name is not necessary. A legacy may be given to a corporation by description, and there is abundant proof in the case that the petitioner was the coporation intended. (N. Y. Institution for the Blind v. How’s Exrs., 10 N. Y., 84.) The appeal, however, must be decided without regard to this proof. If the answer made an issue which required proof, none could be taken upon this proceeding and in the Surrogate’s Court. (Riggs v. Cragg, 89 N. Y, 479.)

In this case the Court of Appeals held that “ the provision authorizing the surrogate to compel an accounting and the payment of a debt or legacy upon the application of a particular creditor or legatee, cannot, we think, be construed as authorizing a decree of payment except where the right to the debt or legacy is undisputed.” Substantially the same thing is held in the cases of Fiester v. Shepard (92 N. Y., 251) and Hurlburt v. Durant (88 id., 121). Before the petitioner can take the legacy, if it is disputed, proof must be given, of the character of the church, its purposes, its name commonly used, its place of location. It will be thus seen that the claimant answers the description given to it by the testator. The surrogate cannot take this proof. The seeond claim made by the executors is that only $7,000 is given in all to the seven churches, instead of $49,000 as claimed by the petitioners. This also is a subject which the surrogate cannot determine upon the application of the individual legatee. It may be easy of solution when an action is brought in the court which can try and decide this question. Upon the subject of doubt it may be said that there are seven churches and only the sum of $7,000 is named in the bequest. The word each would naturally carry $7,000 to each church, but when the surroundings of the will and the purposes of the bequest are proven, and the needs of the churches in respect thereto, it may present a more serious question than is apparent from the will alone ¡pid' without proof.

The judgment should be reversed, and the proceedings remitted to the surrogate to dismiss the petition, with costs to the appellant out of the estate.

Dykman and Pratt, JJ., concurred.

Decree of surrogate directing payment of legacy to Hedding Methodist Episcopal Church reversed, and proceedings remitted to surrogate to dismiss petition, costs out of the estate to appellant.