text:
    In the Matter of the Judicial Settlement of the Estate of Charles W. Wyatt, Deceased.

      (Surrogate’s Court, Orange County

      Filed June, 1894.)

    1. Will—Construction.
    Where a conditional power of disposal is given to the first legatee, a remainder over is not repugnant.

      2. Same.
    Where a legacy is given to a class of persons, distributable at a time subsequent to the death of the testator, all persons answering to the description of the class, at the time for the destribution, are deemed to be objects of the gift and entitled to a share.
    The testator, Charles W. Wyatt, of the town of Xewburgh, died in the fall of 1892, leaving him surviving his wife, Mary J. Wyatt, but no children or descendants of a child or children. He was also survived by two sisters, Mercy Dryer and Eunice Dougherty, each of whom have several children, nephews and nieces of the testator. The testator was also survived by a large number of nephews and nieces, the children, respectively, of five deceased- brothers and sisters. The will of the deceased, dated Masch 8, 1892, and a codicil, dated September 8, 1892, were duly admitted to probate by the surrogate’s court of Orange county, and upon this accounting a construction of the third and fifth paragraphs of testator's will is asked, and it seems to the court necessarily required.
    The testator first gives all the household furniture, beds, bedding, dishes, silverware, etc., to his wife absolutely. Then a bequest of $800, upon the death of his wife, is made to testator’s nephew John W. Beid. This bequest is changed in the codicil, but only in amount. Five hundred dollars, instead of $800, is to be paid to said nephew on the death of testator’s wife. The third and fifth paragraphs, upon which an construction is asked, are as follows:

      “Third. All the rest, residue and remainder of my property and estate, real and personal and mixed, of every nature and kind, and wherever situated, I give, devise and bequeath to my dear wife, Mary Jane Wyatt, for and during the full term of the natural life of my said wife, to have, hold, use and enjoy the rents, issues and income thereof, and if she shall need the personal property of which I may die seized for her comfort, maintenance and support, she may use the whole or any part of it therefor.”

      “Fifth. On the death of my wife, I give, - devise and bequeath all the,personal property of which I may die seized, not herein-before given and bequeathed, and including such part of my personal property as my dear wife shall not have used up for her necessities, to the children of my dear wife’s deceased sisters, equally, share and share alike, so that each one of our said nephews and nieces shall take an equal share. In case any of our said nephews and nieces are dead, leaving child or children, the share which such nephew or niece would have taken, if living, shall go to his or her child or children equally, share and share alike. My said nephew Albert G. Wyatt, and my nephew John W. Beid, are excluded from and shall not take under the provision of this, the fifth clause of my will, as I have specifically made provision for them hereinbefore; neither shall their children take under this clause, if they or them die before my dear wife; and the share which my nephew Charles W. Dewitt would take under this clause of my will shall go to and I give the same to his dear children, William E. Dewitt and Anna T. Presler, equally, each one-half of it; and in case of their death, or the death of either of them, then to their children equally, each branch of children taking the parent’s share.”
    The personal estate left by testator, after payment of debts, etc., amounts to $6,000, or thereabouts. Mary J. Wyatt, the widow of testator, died in October, 1893, leaving a will which has been duly admitted to probate.

      Warner M L. Ward, for accounting executor; James Q. Graham, Jr., for executors of Mary J. Wyatt, deceased, and for several nephews and nieces of said deceased, and special guardian of 0. Maud Ooutant, a minor; Seward TJ. Bound, for Chas. W. Dewitt, Win. E. Dewitt and Anna T. Presler, and special guardian of Ida Dougherty, a minor; William M. Terpening and T W. Tompkins, for other minors.
   McElroy, Sp. S.

—There is no connection, except in one particular, between the third and fifth paragraphs of this will. The latter becomes operative only after the complete enjoyment of the former, and our attention will be given to the questions submitted in the order in which the paragraphs appear in the will.

It is claimed by the executors of the estate of Mary J. Wyatt, deceased, that the whole personal estate of the testator, except such as was specifically bequeathed, passed to his wife, Mary J. Wyatt, absolutely under the third paragraph above and should be paid to the executors of her estate by this accounting executor, for distribution among the persons entitled thereto under the will of said Mary J. W.yatt. The reason alleged by the counsel for the executors of Mrs. Wyatt’s estate for this claim is that there was a power of entire user bequeathed to her in and by the said third paragraph of testator’s will, which was equivalent to a bequest of the personal property to her absolutely.

It is well settled that where an absolute power of disposal is given to the first legatee a remainder over is void for repugnancy, yet, if the right of disposition by the first legatee is conditional, the remainder is not repugnant..

This testator gives and bequeathes to his wife, for and during the full term of her natural life, the residue of his estate, real and personal, to have, hold, use and enjoy the rents, issues and incomes thereof, and if she shall need the personal property of which the testator may die seized for her comfort, maintenance and support, she may use the whole or any part of it therefor.

ín the wording of this will there is no absolute power of disposition of the personal estate given to testator’s wife. “ If she shall need the personal property of which I die seized for her comfort, maintenance and support, she may use the whole or any part of it (not absolutely, but) therefor.”

That sentence expresses to my mind a condition which must first be shown to exist before she is entitled to any part of the corpus of testator’s personal property absolutely. If she needs it for her comfort, her maintenance, hér support, or either of them, the wife of testator is then authorized to use the whole or any part of testator’s personal property therefor.

This must certainly limit the use of the corpus of testator’s personal property by his wife, if any ‘weight whatever is to be given to the words the testator uses as showing the state of affairs, the condition, that must exist before the right to use his personal property is to be exercised.

The reference counsel for the executors of Mrs. Wyatt makes to the fact that Mary J. Wyatt died within a year after the death of testator, and that she had not at that time, or the time of her decease, reduced the corpus of this personal property to her possession, will not be considered by me as affecting her rights in the least.

Suppose the executors of testator’s estate had paid the whole fund of personal property to Mrs. Wyatt, 1 think testator’s executors, and the residuary legatees under his will, would have had a right to be heard upon the settlement of her estate, and a claim by them as to the part of his estate which his wife had not used for her comfort, maintenance and support would have necessarily brought up this third paragraph of testator’s will for construction in that proceeding. Nor is it necessary at this time to consider the question raised as to the validity of this trust. If that point is urged, it seems to me that the case of Matter of Grant, 40 St. Rep. 944, is in point. There the will of testator gave his wife the right to possess and enjoy the rents and profits of his estate during her life, and that, if they were not sufficient for her support, a sale might be had, with remainder over after her decease. No trustee was provided for. Held, that the widow was entitled to the possession of the corpus of the estate. * * * Besides, it appears to me that the provisions of testator’s will place his estate within the rule that a trust will be implied in executors when the duties imposed render the possession of the legal estate in the executors reasonably necessary, although it may not be absolutely essential to accomplish the purposes of the will, when such implication would not defeat, but would sustain the disposition of the will. Tobias v. Ketchum, 32 N. Y. 329; Vernon v. Vernon, 53 id. 357; Morse v. Morse, 85 id. 53; Roberts v. Corning, 89 id. 226, 237.

I have carefully examined the cases cited by counsel for the executors of Mrs. Wyatt, also the statutes in reference to powers, but am of the opinion that the various provisions in the wills therein construed are not in point or accord with the disposition this testator desired to make of his property.

In Campbell v. Beaumont, 91 N.Y. 464, the property of testator was devised to his wife for her sole use and benefit, accompanied by a clause that it was the testator’s will and desire that whatever remained at the decease of his wife should be received and enjoyed by her son Charles. Held, that the widow took an absolute title unaffected by the provision for her son.

In Crain v. Wright, 114 N. Y. 307; 23 St. Rep. 245, the will gave land to the widow, “ to have and to hold for her benefit and support.” Held, that no intent was discoverable to pass less than á fee.

In Hart v. Castle, 30 St. Rep. 701, a father gave the residue of his estate to his sons and daughters, their heirs, etc., to be equally divided, and then provided that if either of the daughters should not leave children at her decease, her share should descend to her brothers and sisters, but that said daughters should have “the right to use and manage their shares in such manner as they shall severally choose, and, if the income thereof shall be insufficient for their comfortable support, they may use as much of said share as may be necessary.” Held, that an absolute power of alienation of the real estate was devised.

In each of the foregoing cases, as well as others cited by counsel in his brief, which I have examined, the wording is so different from testator’s will that I fail to see how the rules of construction set forth in those cases can be followed in this case.

The case of Van Horne v. Campbell, 100 N. Y. 287, construes a will drawn before the enactment of the Revised Statutes and under the provisions of the common law.

The rule of construction as herein set forth has been changed by the Revised Statutes. 3 Revised Statutes (Banks’ 7th ed.), 2178, is as follows :

“ § 32. No expectant estate can be defeated or barred by any alienation or other act of the owner of the intermediate or precedent estate * * * by disseisen, forfeiture, surrender, merger or otherwise.
“ § 33. The last preceding section shall not be construed to prevent an expectant estate from being defeated in any manner, or by any act or means, which the party creating such estate shall, in the creation thereof, have provided for or authorized; nor shall an expectant estate, thus liable to be defeated, be on that ground adjudged void in its creation.”

It seems to me that the estate intended to be created here, after the life estate of testator’s widow, was a contingent future remainder, and, under the above provisions of the Revised Statutes, was such an estate as the testator had the right to create, and when the defeating contingency had been rendered impossible, to-wit, the death of Mrs. Wyatt without having used any part of testator’s personal property for her comfort, maintenance and support, then the remaindermen, representing the class mentioned in the fifth paragraph above, were entitled to possession.

It seems to me that it was clearly the intention of the testator to limit the use of the corpus of his personal property to the actual needs of his wife, and all doubt as to this view not being his intention is overcome by the third clause of testator’s codicil, which is as follows: “I give, devise and bequeath to-my dear wife, Mary Jane Wyatt, the sum of five hundred dollars ($500) absolutely for herself, her heirs and assigns forever, in addition to what I give her by my said will." This leads us naturally to ask, what had testator given his wife by his will.

Can there be any doubt as to what he supposed he had given her before this codicil was made, viz., the rents, issues and income of all his estate, real and personal, for her natural life, with the right to use the whole or any part of his personal property if she should need it for her comfort, maintenance and support. If the testator had intended this bequest in his will to have been 'an absolute gift of all his personal property, what reason could he have had in attempting to give $500 more than his whole personal estate, and from what source would the $500 bequest in his codicil come?

While it is true that the widow is the one to determine primarily whether she needs any part of the corpus of this estate fa$? her comfort, maintenance and support, yet, I think that where a husband leaves his estate in this manner—practically under the control and enjoyment of his wife if her necessities require it— that to entitle the wife to the use of any part of the corpus of testator’s personal property there must be something substantial in her needs; that the word “comfort” should not be construed to mean “luxury,” or the words “maintenance and support” coupled with any possibility of doubt but what the circumstances of the beneficiary are such that a part of the fund or corpus of the estate is needed for that purpose. Such interpretation should only be given as the words in their ordinary meaning imply, the words “comfort, maintenance and support” meaning in each particular case that degree of comfort, maintenance or support which the testator in his lifetime bestowed upon his wife ; and I think it incumbent on the part of the first beneficiary, whoever it may be, to show that the actual condition exists whereby the right to use, and thus lessen, the residuary estate may be exercised.

My conclusions, therefore, are: “ That this testator gave his wife the use and income of his estate, real and personal, for her natural life, with the further right to use any part of his personal property, even to exhaustion, if she should need the same for her ' comfort, maintenance and support; that the balance of testator’s personal property remaining at the death of his wife (and in this case the whole of it), subject to the expense of administration and the costs on this accounting, is to be distributed, under a decree to be entered herein in pursuance to the foregoing, to those entitled as residuary legatees under the fifth clause of testator’s will, and hereinafter determined.

The portion of the fifth clause of testator’s will, upon which a construction is asked is as follows:

Fifth. On the death of my wife, I give, devise and bequeath all the personal property of which I may die seized, not hereinbefore given or bequeathed, and including such part of my personal property as my dear wife shall not have used up for her necessities, to the children of my deceased brothers and sisters and the children of my dear wife’s deceased sisters, equally, share and share alike, so that each one of our said nephews and nieces shall take an equal share. * * * ”

The words, “ including such part of my personal property as my dear wife shall not have used up for her necessities ” settle beyond a doubt the construction the testator placed on the third paragraph of his will, and the estate he intended his wife to enjoy thereunder, and strengthens our belief in the third paragraph as above. D

It appears by the testimony that at the time testator made his will he was survived by two sisters, five sisters-in-law and a large number of nephews and nieces, the children of two brothers and three sisters who were deceased. It also appears that there were other nephews and nieces to wit, the children of testator’s two living sisters, and the children of four of the living sisters of testator’s wife; that the testator was well acquainted and on intimate terms with his living sisters and the sisters of his wife, and their families respectively. It is contended on the part of the nephews and nieces of the living sisters of testators wife, that inasmuch as the testator knew that all his wife’s sisters were living, the word “ deceased " in the sentence “ the children of my dear wife’s deceased sisters,” should be stricken out as carrying a disposition contrary to the intention of testator, or else transposed and the sentence made to read, “ the children of my dear (deceased) wife’s sisters,” and a like request is made that ,the word “deceased” in the sentence “ to the children of my deceased brothers and sisters” be stricken out, or the words “ and living ” interposed, so that the sentence may read, “to the children of my deceased (and living) brothers and sisters.”

The fact of making a will always raises a strong presumption against any wish of the testator to have his estate or any part of it enjoyed by those other than the ones named or included in a class mentioned and described in his will, and while it is the duty of tire court to put such construction upon the various clauses of a will as will effectuate the general intent of the testator, and to that end transpose words and phrases, insert or leave out certain words or provisions if necessary, yet this can only be done in aid of the testator’s intent, and not to make in whole or in part a new will.

If the testator had intended to include all his nephews and nieces, and his wife’s nephews and nieces, in the class entitled to receive the residue of his personal property at the death of his wife, it seems to me that he would not have used the language he did, but would have prepared a simple sentence; one that could admit of no question as to his intention, and in substance, at least, as follows: Upon the death of my wife I give and bequeath all my personal estate remaining to my nephews and nieces and the nephews and nieces of my wife—or all our nephews and nieces— equally, share and share alike.

The testimony shows that this testator’s will was drawn from a full memoranda of the various paragraphs, and that this part of paragraph fifth was in his own language, and it is fair to assume that he knew the meaning of the word “ deceased,” and how to use it in a sentence to express his wishes, and that if He had intended a disposition other than the one expressed he possessed a sufficient degree of intelligence to have enabled him to do so ; besides, six months thereafter he makes a codicil wherein he ratifies and confirms this fifth paragraph of his will. The sentence in the fifth paragraph above evidently intending to show the persons and to what extent they severally shall take, is particularly blind, viz., “so that each one of our said nephews and nieces shall take an equal share.”

I cannot agree with counsel that the word “our” in that sentence should .be considered as controlling and showing that the testator meant the children of his - wife’s sisters as well as the children of his own brothers and sisters. I think the word “said” is the significant word in that sentence, and refers specifically to the class that had been previously designated—our said nephews and nieces; that is, “the children of my deceased brothers and sisters and the children of my dear wife’s deceased sisters.” The testator could have used the word “our” in that connection even though there were no children of his wife’s sisters, but in my view of his intention, as' expressed in this paragraph of his will, the word “our" was used by him to show his intention that the children of his wife’s deceased sisters (if any) were to be’ included at the time a final distribution was to-be made.

From a careful examination of all the bequests in testator’s will, it must be conceded that it was his intention to pass the enjoyment of his estate, after the death of his wife, to collaterals farther removed than his own sisters or his wife’s sisters, and I think the general rule which has been declared in many cases, that where a 'legacy is given to a class of persons, distributable at a time subsequent to the death of the testator, all persons answering the description of the clhss at the time appointed for the distribution are deemed to be objects of the gift and entitled to a share, applies to this case. Teed v. Morton, 60 N. Y. 506, and cases cited. And this rule applies whether the legacy (if to be enjoyed in the future) is vested or contingent. A testator may devote his gift to a whole class or restrict it to certain individuals of a class: to persons of á class living at his death, or to such persons and all others who belong to the class at the period of distribution. In this case the period of distribution was upon the death of testator’s wife.

I am, therefore of the opinion that the intention of the testator, as expressed in this fifth paragraph of his will, is as follows: Upon the death of his said wife the residue of his personal property, including such part as his wife had not used for her necessities, was to be divided among the children of his deceased brothers and sisters (except such as are named as not entitled to take), and the children of his wife’s deceased sisters, if any. As all of testator’s wife’s sisters were living at the death of testator’s wife, none of their children or the children of the two living sisters of testator, who also survived that, event, are entitled to be considered in 'the class of nephews and nieces representing the objects of testator’s bounty.

Two items in the account of the executor of Charles W. Wyatt, deceased, were objected to by counsel for the executors of Mrs. Wyatt’s estate.

The item of twenty-one dollars and. eighty-two cents for insurance upon the buildings on the real estate of testator, placed about four months before the death of Mrs. Wyatt, and the full premium for three years’ charges against her, is objected to, and it seems to me properly so. While it is true that testator’s wife had the benefit and use of this real estate for. life, yet there is no reason for this beneficiary paying the premium for this insurance for the full period, unless she had lived to enjoy its protection, and the accounting executor should only charge .the life beneficiary with a proportionate of part the amount of premium paid.

The item of twenty-five dollars and seventy-five cents paid by the accounting executor for the services of a trained nurse for testator’s wife, and charged by said executor against her. I think is properly charged.

The fourth paragraph of the will is in part as follows:

11 Fourth. On the death of my dear wife, I give, devise and bequeath the farm on which I now reside, consisting of about eighteen acres' of land, with * * * to my nephew Albert C. Wyatt, provided he shall board, care for and treat my dear wife as a son should treat a mothor, caring for her comfort and doing for her as she shall reasonably desire. * * * ” It appears from the testimony that the executor of Charles W. Wyatt’s estate, learning that Mrs. Wyatt was sick, called, and although he found that everything was being done for her by this devisee and nephew that he could do, yet the executor aforesaid believed that the experience of a trained nurse was needed, and he accordingly sent one to care for her, and by the services of this trained nurse she was benefited temporarily.

While it is true that Mrs. Wyatt might have reasonably desired that this nephew obtain the services of a trained nurse, the testimony shows that it was the act of the executor of her husband’s estate, who had funds in his hands belonging to her, and I fail to see, under the terms of testator’s will, that it was incumbent on the part of this nephew to furnish a trained nurse, at least, unless she had desired it.

The request of the testator is that his nephew shall board, care for and treat his wife “as a son should treat a mother.” The testator had no children, and he desired that his wife, after Ips decease, should have the care, protection and attention which a son gives a mother, and surely it is not customary for a son to furnish a doctor or trained nurse for a parent in sickness, unless probably where the circumstances of the mother are such that she could not pay for such services—a fact that did not exist in this case.

The item of twenty-five dollars and seventy-five cents will, therefore, be allowed as charged, and a decree entered in pursuance of the foregoing.

Decreed accordingly.


source: Caselaw Access Project

author: Hatch, J.

license: Public Domain

text:
    Le Roy Parker, Pl’ff, v. David F. Day, Def’t.

      (Buffalo Superior Court, Equity Term,

      Filed June, 1894.)

    Partnership—Executor.
    Where one member of a firm of attorneys, at the request of his partner, who is the executor of an estate, performs valuable services for the benefit of the estate, the law will imply a promise on the part of the latter to pay their fair value.
    Actioh to recover the value of professional services.

      Adelbert Moot, for pl’ff; George S. Wardwell, for def’t.
   Hatch, J.

—During the period covered by the rendition of the services for which this action seek§ to recover the value the parties hereto were copartners engaged in transacting legal business as attorneys under written articles of copartnership. About June, 1887, defendant became the executor of the estate of Adeline 0. Hotchkiss. A part of the estate was located in New York, but the bulk of it in the state of Michigan. Shortly after the decease of Mrs. Hotchkiss a claim was set up against the estate, amounting to about §50,000, being nearly its entire value. The claim thus set up was prosecuted with vigor, against which was opposed an equally stubborn resistance, and out of the latter arises the present claim. During the pendency of the claim against the estate defendant received from Detroit a box which contained the personal papers of the deceased, amounting to several thousand items in all. Upon its reception he delivered the same to plaintiff, with the request that he look the matter up and attend about preparing a defense to the claim. Plaintiff, in pursuance of this request, examined the papers, looked up and examined witnesses, both in Hew York and Michigan, attended htearings before commissioners appointed by the probate court in Michigan, instituted an independent proceeding before the probate court for the examination of the claimant, and the matter having been appealed from the decision of the commissioners, attended and took part in a trial of the issues in the circuit court before a jury, where the claim was defeated, prepared the brief and submitted the same in the supreme court of Michigan, to which tribunal it was appealed, and thereafter made a motion for a reargument before the latter court after an adverse decision had been handed down. Ho question is made but that the service was arduous in character and valuable in results.

The claim which seeks to defeat a recovery is founded upon two contentions : First, that the parties hereto were partners,-and, as the basis of the action rests in an implied contract, no legal obligation is created, as the existence of the copartnership excludes liability created in such manner; second, that the service was rendered as a member of the firm for which'the firm became entitled to compensation. It may be conceded that the law will not imply a promise from one partner to another respecting their common business. Townsend v. Goewey, 19 Wend. 427.

But no such rule finds force respecting business independent of the partnership, or where the business may not be performed by .the firm and the firm reap the benefits contemplated by the articles of copartnership. The contract, whether created by express agreement or by operation of law, is to be governed by the lex loci Dickinson v. Edwards, 77 N. Y. 578 ; Holdridge v. F. & M. Bank, 16 Mich. 66.

.• This contract is, therefore, to be construed having regard to the laws of this state both as to the contract itself and the status of the parties. Defendant’s position as executor excluded him from performing service for the estate and therefrom reaping a profit beyond the compensation fixed by law, and this without regard to merit, labor or value. Collier v. Munn, 41 N. Y. 143; Smith v. City of Albany, 61 Id. 446.

Prior to the adoption of the Bevised Statutes, allowing an executor commissions for his services, he was only entitled to per diem compensation. Green v. Winter, 1 Johns. Ch. 36, 37.

This rule was based upon the decisions of the English Oourt of Chancery, adopted in this country, which is still the rule, except so far as the same has been changed or modified by statute. Begarding the limitations imposed upon executors, there has been no change or modification in dealing with the trust estate beyond the allowance of commissions. The rule thus laid down is enforced most rigidly both in this country' and in England, with the result that compensation was denied in England for services rendered by the partner of a solicitor, who was an executor, where the profit therefrom was to be divided by the firm. Broughton v. Broughton, 2 Smale & G. Ch. 422; Cradock v. Piper, 1 M. & G. 664.

A like rule is established in this country. Taylor v. Wright, 93 Ind. 122; Hough v. Harvey, 71 Ill. 72; Perry Trusts, § 432.

These cases all proceed upon the theory that it would be an evasion of the law to permit, by indirection, the realization of profits from the trust estate where the law in terms denies that there shall be any. We must regard it, therefore, as settled that if the partner of a lawyer, being an executor, renders service for which the firm is to receive pay, and in which the executor is to share, no obligation is created against the trust estate for the service. The rule is not different under the statutes of Michigan. Wisner v. Mabley Estate, 70 Mich. 285.

It is true that the Michigan statute has somewhat enlarged the compensation which may be awarded to executors for extraordinary service, but it has not changed the law regarding the right of an executor to make profit out of the trust estate. Wisner v. Mabley Estate, 70 Mich. 285.

It thus appearing that neither defendant nor the firm of which he was a member could act as attorney for the trust estate and receive compensation therefor, it is quite clear that such business was not intended to be, and was not, within the articles of copartnership, as they related to such matters as it was competent for each or both to engage in, from which a profit might be received for the mutual benefit of both. When, therefore, this case arose, although of like character for the performance of which the firm was constituted, where one of the partners was under a disability created by the law of the land, and from which, if performed, no compensation could be lawfully received, it is manifest that a case was presented not within the articles of copartnership or within the contemplation of the parties when they were executed. Thus, as to this particular case, the parties did not bear the relation of partners to each other, and could contract with respect thereto as freely and fully and upon the same terms as could persons who stood in no relation of trust and agency to each other. This being their status, a valid contract could be entered into and liability created under any of the forms known to the law. The request in the present case having proceeded from the disabled partner and the work having been performed, the law will imply an obligation to pay its fair value. Howard v. France, 43 N. Y. 593 ; Tucker v. Staunton, 20 Wkly. Dig. 43 ; Smith v. Long Island R. Co., 102 N. Y. 190; 1 St. Rep. 403.

The action is well brought against the defendant personally. Austin v. Munro, 47 N. Y. 366.

It may be assumed that the evidence establishes that the business was carried on in the name of the firm as fully as though it were partnership business; that the payments which were made were divided in the proportion which the articles of copartnership called for, and the defendant’s claim is that the business was partnership business, the compensation for which was to be divided as provided in the articles. The plaintiff does not dery what the evidence establishes; his claim is that the business was so carried on in the name of the firm for convenience; that the division oC the moneys received by him was with his knowledge and consent, but that finally he expected such further payment would be made to him by the defendant as would compensate him for the work performed.

The case presents features which permit of a determination in favor of either claim. If the conclusion is reached that the firm did this business as firm business, intending so to do it, then we are presented with the condition that valuable and devoted service, resulting in the practical salvation of a large estate, must go unrewarded, except through an allowance provided for by the Michigan statute, which does not embrace, at least completely, the service here rendered. It would also follow that the payments already made must be accounted for as; a part of the estate for distribution. With respect to the estate and the service rendered it, both parties have unequivocally characterized their attitude towards it. Such attitude is one in every respect consistent with the most perfect good faith to the estate, and seems to settle the rights of the parties respecting each other. We, therefore, adopt those acts as conclusive, and are thereby relieved of much that is in hopeless contradiction.

While the claim against the estate was proceeding before the various tribunals culminating in the supreme court of Michigan, payments amounting in all to $1,200 were made by defendant to to plaintiff, for which defendant took plaintiff’s receipt, and while plaintiff did not receive the whole of this money, yet the full amount was charged against the estate as having been paid to him, and he is chargeable therewith. The account, as made up for presentation to the probate court, contains the receipt of plaintiff for the whole sum, and the account itself makes claim for allowance to the executor for the expense thus incurred. It is evident from this fact that the parties have both characterized the relation in which plaintiff stood to the business as individual, and not as partner, and while, as we have seen, many of the transactions would indicate 'firm employment, and be conclusive of it, if disability of one did not exist, yet here the parties themselves have determined its character, the one by receipting and the other by charging the trust estate with its payment. Such facts comply in all respects with the law, for, if the transaction were one where the firm was employed, no compensation could be paid, and the executor would be relegated to such allowance as should be awarded under the Michigan statute for extraordinary compensation, while the payment to plaintiff, if made for the firm account, would become an unlawful charge against the estate which would require its being refunded. The service rendered in protecting the estate from the claim being meritorious, it would be most unjust to deprive the party rendering the same of compensation, or to leave it to the uncertain allowance under the Michigan statute, which it is evident, both from its terms and from the decisions under it, was not intended to provide a method of compensation for attorney’s services. This leaves the parties in this condition: plaintiff is entitled to fair compensation for his services, which defendant is entitled to charge against the estate. The latter is entitled to commissions, and would seem to be, in view of his service, entitled to extraordinary compensation, which we doubt not will be awarded him by the proper authority.

Judgment is, therefore, ordered for plaintiff in accordance with the directions given the clerk.

Judgment ordered for plaintiff.


author: Osborne, J.

text:
    Gustav Hurliman, Resp’t, v. Isaac Seckendorf et al., App’lts.

      (Brooklyn City Court, General Term,

      Filed June 25, 1894.)

    1. Trial—Affirmative.
    In the absence of a denial of any material allegation of the complaint, the defendant is entitled to the affirmative, where the burden is upon him to establish an affirmative defense.
    2. Same—Substantial right.
    The denial of the right to open and close is the denial of a substantial right.
    Appeal from a judgment in favor of the defendant.

      M. S. & I. S. Isaacs, for app’lts ; Jas. C. Foley, for resp’t.
   Osborne, J.

—Plaintiff brought this action to recover one month’s rent of certain premises leased by him to defendants. Defendants, by their answer, admitted the lease, and set up sundry affirmative defenses and counterclaims, to which plaintiff replied, denying the same. Plaintiff obtained a verdict in his favor, and from the judgment entered thereon and the order denying motion for a new trial, as well as from the exceptions taken on the trial, defendants take this appeal. At the commencement of the trial, the defendants claimed that they were entitled to the affirmative, and to the right to open and close. Their motion in this regard was denied, and the defendants duly excepted. With a view of determining if this exception was well taken, it becomes our duty to examine the pleadings in this case, for the question as to which party is entitled to the affirmative must be wholly determined by the pleadings. Lake Ontario Nat. Bank v. Judson, 122 N. Y. 279; 33 St. Rep. 459. The first paragraph of the complaint alleges the copartnership of the defendants. The second paragraph alleges that the plaintiff heretofore, by an indenture made between him and the defendants, bearing date May 19, 1890, leased to the said defendants certain premises in said lease mentioned, to wit, the basement of the brick building situated on the northerly side of Wallabont street, near Lee avenue, in the city of Brooklyn, and known as “Nos. 171 to 187 Wallabout street,” together with steam heating and power, as in said lease specified, for the term of 23 months, commencing on or about June 1, 1890, at the yearly rent of 31,320, payable monthly in advance on the 1st “day of each and every month, which rent the said defendants covenanted and agreed to pay in manner as aforesaid.” Paragraph 3 alleges “that the plaintiff has duly performed all the conditions of said lease on his part.” Paragraph 4 is “that, under and by virtue of said lease, there became due on September 1, 1890, the sum of $110, the rent for said month, which the defendants have failed and refused to pay. Then follows the prayer for judgment for $110, with interest from September 1, 1890, besides the costs of this action. By their answer (paragraph 1) defendants “admit the allegations contained in paragraph 1 of the complaint [the copartnership of the defendants]. They admit making the lease in the complaint mentioned, a copy of which lease is hereto annexed, and made part of this answer, and marked ‘Schedule A,’ and they further admit that they refused to paj- the amount demanded in the complaint.” By paragraph 2 “they deny each and ev@ry allegation in said complaint contained not hereinbefore specifically admitted.” Then follow various affirmative defenses, sitting up that plaintiff failed to supply them with steam heat, power, etc., as he had covenanted to do, a rescinding of the lease, surrender, fraud, and deceit in inducing them to make the lease, and claims for expenditures in fitting up the premises, loss of profits, etc. Plaintiff’s reply denied the matters constituting counterclaims.

It will thus be seen that the defendants admitted their copartnership, and the making of the lease in question, and their refusal to pay the amount demanded in the complaint. Their denial of the other allegations mentioned in the complaint “not hereinbefore admitted” can only refer to the remaining allegations of the complaint, to wit: “(3) That the plaintiff has duly performed all the conditions of said lease on his partand “that, under and by virtue of said lease, there became due on September 1, 1890, the sum of $110, the rentier said month.’’ The last mentioned allegation constitutes merely a conclusion of law, which it was unnecessary to insert in the complaint, and which the defendants could have disregarded without affecting the real issues in the action. Nor were the allegations in paragraph 3 of the complaint essential to plaintiff’s cause of action. They were not matters which plaintiff was bound to allege or prove, and the fact that they were denied by defendants did not have the effect of putting plaintiff to his proof on those points. Phillips v. Brown, 20 Wkly. Dig. 155. If it were necessary to go further to illustrate the statement that the^allegatioli of performance of the conditions of the lease was not essential to plaintiff’s cause of action, we have but to remember that the rent sued for was due and payable in advance on the 1st day of September, for the use of the leased premises for that month, and plaintiff’s cause of action accrued and was complete on that day, notwithstanding that he had covenanted to fitrnish defendants with certain steam heat and power for their use during that month. Plaintiff’s cause of action arose on the agreement to pay rent in advance, and he had a right to bring suit to recover the rent, if not paid on the 1st day of the month, regardless of anything he had agreed to do during that month. This being so, plaintiff’s canse of action became complete immediately on default in payment; and he was not called upon to allege, nor could he then truthfully allege, the performance of any conditions which remained for him yet to perform. That he did not commence suit till after the month had expired did not and could not affect the statement of his right of action that had already accrued.

It will thus be seen that no material allegation of the complaint was denied. The making of the lease was admitted, and the refusal to pay the amount demanded in the complaint. Plaintiff, in such a case, was not bound to prove occupation or enjoyment, Gilhooley v. Washington, 4 N. Y. 217; Salmon v. Smith, 1 Saund. 202, 208, note 1, or to give any proof. The rule, well settled by abundance of authority, is that the party who would fail if n.o evidence were given shall open and close. Bailey, Onus Prob. p. 607. Applying that rule to the pleadings in this action, it will be seen that, if the defendants gave no evidence to support their affirmative defenses, it would be the duty of the trial court to direct a verdict for the plaintiff. The lease was admitted, and the covenant therein to pay rent monthly in advance, and the refusal to pay the September rent.

These constituted all the essential facts on which plaintiff sought to recover. The matters of defense set forth in the answer were affirmative, and the burden was on the defendants to sustain those defenses. Smith v. Sergent, 67 Barb. 243, 246. We are of the opinion that the affirmative was with the defendants, and that the denial of their right to open and close was the denial of a substantial right, Conselyea v. Swift, 103 N. Y. 604; 4 St. Rep. 278, and that their exception was well taken. This conclusion renders it unnecessary for us to examine any of the other exceptions.

Judgment and order denying new trial reversed, and new trial ordered, with costs to abide the event.


author: Van Wyck, J.

text:
    Thomas W. Stack, App’lt, v. City of Brooklyn, Resp’t.

      (Brooklyn City Court, General Term,

      Filed June 25, 1894.)

    Statutes—Repeal.
    Chap. 348 of 1887, is a special act, and is, therefore, not superseded by chap. 182 of 1884.
    Appeal from a judgment in favor of defendant.

      John A. Quintard, for app’lt; Almet F. Jenks, for resp’t.
   Van Wyck, J.

—If the revised charter of Brooklyn (Laws 1888, chap. 583, tit. 11, § 5) was not superseded by chapter 182 of the Laws of Í884, when the census showed Brooklyn to be a city of over 800,000 inhabitants, then the judgment appealed from'must be affirmed. Section 5 of this charter grades the patrolmen of the police force of this city according to their term of service, as follows : Those having served over three years shall be members of the first grade, those under three years and over one year shall be members of the second grade, and those under one year shall be members of third grade,—and authorizes the board of estimate of the city of Brooklyn to fix their annual salaries at a sum not to exceed $1,200 for the first grade, $1,100 for second grade, and $1,000 for the third grade. The board of estimate has fixed their annual salaries at $1,100, $900 and $800 for the first, second and third grades, respectively. The law of 1884 (chapter 182) grades the police force in the same manner, and fixes the salary for each grade at the maximum sum to which § 5 of the revised charter authorizes the Brooklyn board of estimate to raise the. salaries of policemen. The act of 1884, according to its title, purports “ to regulate the grade and fix the * * * compensation of the police force * * * in all cities of this state having, according to the last census, a population exceeding eight hundred thousand.” The appellant insists that, when the census showed the population of, Brooklyn to exceed 800,000, the charter provision became inoperative, and that this act of 1884, controlled, and at once operated to raise the salaries of the police according to its terms. There is no serious contention that if this charter provision, which is a special and local law, had been adopted as an independent act, and not as a part of the revised charter, which is entitled “An act to revise and combine in a single act all existing special and local laws affecting * * * the city of Brooklyn,” it would operate as a repeal of the law of 1884 so far as it affected this city; but it is urged that this charter provision is the incorporation in this charter of chapter 348 of the law of 1887, and that this latter act is a general law intended to apply, not only to Brooklyn, but to other cities of over 500,000 and under 800.000 population. It is plain that this charter provision was taken from the law of 1887, which provides, firstly, that in cities having, according to the last census, over 500,000 and less than 800.000 population, the police force shall be divided into the three grades already mentioned, and then follows the only provision therein relating to compensation, which is quoted here at length: “ The annual pay or compensation of the members of the police force shall be fixed by the majority of all the members of the board of estimate of the city of Brooklyn, and shall not be * * * greater than the following, namely,—For patrolmen of the first grade * * * not to exceed twelve hundred dollars per annum each; for patrolmen of the second grade, at a rate not to exceed eleven hundred dollars per annum each; for patrolmen of the third grade at a rate not to exceed one thousand dollars ■per annum each; for * * * doormen "x" * * at a rate not to exceed nine hundred dollars per annum each.”

It is true that this act, in some of its terms, purports to be a general act applicable to all cities of a certain population, but the context clearly shows it to be a special and local one, affecting only the city of Brooklyn. The clause quoted in relation to the compensation, which, by its terms, expressly applies to Brooklyn, and cannot apply to any other city, is the very substance of this act, and clearly excludes any legislative intent that the act should apply to any other city. The grading of the police was a simple incident or basis which was necessary to give force to the salary clause that applies only to Brooklyn. The act cannot have any real application to other cities without further legislative action in reference to the compensation of their respective police forces. If the act of 1887 was denuded of the compensation clause relating to this city only, it would become a lifeless skeleton of fleshless and marrowless bones, and powerless to help or harm any one. That this is a local and special act, and was so intended to be, cannot be escaped unless the vital part of its context must yield to an incident thereto which happened to be couched in terms of a general law. The incorporation of this law in the charter of 1888, “An act to revise and combine in a single act all existing special and local laws affecting * * * the city of Brooklyn,”—was an expressed declaration of the legislative intent that it was not a general law. The law of 1887, reenacted in § 5 of the chapter of 1888, was intended to be a complete provision on the subject, so far as Brooklyn was concerned, till further legislative action. It is well settled that, in a conflict between the provisions of a general law and those of a special and local law, the nullification by the former of the latter, so far as the special location is concerned, is not favored, and will not be implied without the legislative intent so to do is apparent and clear. Mc Kenna v. Edmundstone, 91 N. Y. 231; Whipple v. Christian, 80 N. Y. 523; Van Denburgh v. Greenbush, 66 N. Y. 1; People v. Quigg, 59 N. Y, 88; End. Interp. St. §§ 223, 228.

Our conclusion that the compensation of the patrolman is still regulated by the revised charter renders it unnecessary to consider the contention of the respondent that the words “according to the last census” in the law of 1884 (chapter 182) limited its application to cities having such population according to the census of 1880.

The judgment must be affirmed, with costs.


text:
    Thomas F. Dowd, as Administrator, etc., App’lt, v. Brooklyn Heights Railroad Company, Resp’t.

      (Brooklyn City Court, General Term,

      Filed June 25, 1894.)

    BTeuligence—Question of fact.
    The evidence, in this case, was held to make a prima facie case of negligence and want of contributory negligence, which should have been submitted to the jury.
    Appeal from a judgment of nonsuit.

      Tredwell & Catlin, for app’lt; Morris & Whitehouse, for resp’t.
   Van Wyck, J.

—This is an appeal from a judgment of nonsuit. This action was brought to recover damages for the death of plaintiff's child, who, it is alleged, was killed, at the age of eight years, through the negligence of the motorman of one of defendant’s trolley cars. The motion to dismiss the complaint was made when the plaintiff rested his case, upon the grounds that defendant was not negligent and deceased was negligent. Was it error to grant this motion ? we are called upon to answer.

There is evidence which the jury was justified in believing, and from which it can be fairly inferred, tbpt on July 23,1893, Charles Dowd, an eight year old boy, was on the east side of Court street, Brooklyn, standing 11 feet from the down track, when he started to run directly towards this track to cross same, at which instant the down car was 50 feet from the point on this track at which he was about to cross, coming towards him at the “usual pretty fast” speed of the trolleys, which was not slackened till the ear struck and killed the boy, when he had almost passed safely over, for with another step of about two feet he would have cleared the track; that the motorman, though it was bright daylight, with nothing to obstruct his view, did not see the boy, and did not even look forward, but constantly kept his eyes turned in another direction during the whole time the ear was passing over a space of 50 feet or more in its approach to the point of collision ; that the motorman’s failure to see the boy and to slacken or stop his car till the collision, when he stopped it in about 10 feet, was through(liis inattention to what was in front of him and near his track; that his mind was so riveted upon something else than his duties, or so wandering, with no thought of his surroundings, that he did not apparently pay any attention to the conditions in his front, and failed to recognize or respond to the usual signal with the uplifted hand to stop for a passenger, given by the witness Blnmson. Negligence is a failure to exercise that degree of care which persons of ordinary experience and prudence would or ought to exercise under similar circumstances. Ordinary care exacts greater or less alertness according to the dangers which the exigencies of the surroundings would demand from persons of ordinary experience and prudence. Certainly the diligence of a motorman propelling a car along a country road seldom frequented by children or adults would be slight compared with that of a motorman driving his car through the crowded streets of a large city, with the usual percentage of children who constantly cross the roadways from sidewalk to sidewalk while going to and from school, church, on errands for parents, or recreating in play. Such use of the streets by children is not wrongful, and it is not, per se, negligence for a parent to permit even a non sui juris child to play upon the street. Kunz v. City of Troy, 104 N.Y. 344; 5 St. Rep. 642 ; McGuire v. Spence, 91 N. Y. 303. This child, Charles Dowd, was between eight and nine years old, and had been going to school several years, and was passed of the usual brightness of a child of that age. Assuming him to have been sui juris, still he must be judged according to his maturity, for the law but expressed the judgment of the common sense of the people when it declared that greater circumspection will not be exacted of a child than that which his tender years afford. It would be an invasion of this most reasonable rule to hold, as a question of law, that this child was negligent, when he, standing near the track, and seeing a car 50 feet away, followed perhaps the dictates of his best judgment in believing that he could with all safety easily cross over before it reached him. Maybe his want of maturity led him to misjudge the relative rapidity of his own and the car’s speed. We are satisfied that the question of contributory negligence, assuming the child to have been sui juris, was for the jury, and not for the court. McGovern v. N. Y. C. & H. R. Railroad Co., 67 N. Y. 418. See Id. 421; Moebus v. Hermann, 108 N. 349; 13 St. Rep. 648; Kunz v. City of Troy, 104 N. Y. 344, 351; 5 St. Rep. 642.

The court of appeals has often declared, in one form or another, that drivers of vehicles must appreciate the fact that foot travelers frequently cross the streets and that this devolves upon them the duty of being watchful, and looking out for such travelers for the purpose of avoiding a collision. Murphy v. Orr, 96 N. Y. 14, 16; Moebus v. Hermann, 108 N. Y. 353; 13 St. Rep. 648. The testimony in this case would sustain a finding, which would be the most charitable view of it, that the motorman, through inattention, was neither watchful nor careful in his outlook for foot travelers on this occasion, and that, if he had been, he would have discovered the dangerous position of the deceased boy in time to have saved him from injury by stopping or slowing up the car, and, on the other hand, if lie did see the boy within a few feet of the track, running directly towards it to cross the same, a finding that he should have anticipated the child’s dangerous position and could have avoided the collision by reasonable care in cutting off his power and applying his brake, and that he failed to do so. There was a prima facie case on defendant’s negligence which should have been submitted to the jury. Stone v. Dry Dock Railroad Co., 115 N. Y. 104 ; 23 St. Rep. 551; Mason v. Atl. Av. Railroad Co., 4 Misc. Rep. 291; 54 St. Rep. 454; affirmed, 140 N.Y. 657; 55 St. Rep. 931; Thurber v. H. B., M. & F. Railroad Co., 60 N. Y. 326, 329; Moebus v. Hermann, 108 N. Y. 349 ; 13 St. Rep. 648; Murphy v. Orr, 96 N. Y. 14; Keenan v. Railroad Co., 60 St. Rep. 831; 29 N. Y. Supp. 325.

The judgment and order herein must be reversed, and new trial ordered, with costs to abide the event


author: Clement, C. J.

text:
    Moses D. Kinkade, Resp’t, v. Atlantic Avenue Railroad Company, App’lt.

      (Brooklyn City Court, General Term,

      Filed June 25, 1894.)

    Negligence—Stbeet cabs—Sudden stabt.
    It is negligence to start- a street car while the passenger is on the step and before he has had time to get his seat.
    Appeal from a judgment in favor of plaintiff.

      Morris & Whitehouse, for app’lt; Ayres & Walker, for resp’t.
   Clement, C. J.

—The counsel for the appellant in this case seeks a reversal on only two grounds—First, that there was no proof of negligence on the part of the employes of the defendant.; and,.second, on the ground that the verdict for $10,000 was excessive. We have carefully read the record in this case, and find no ground for disturbing the result at the trial term. "We will go further, and say tha't the appeal seems to us to be taken solely for delay. It was decided by this court in the case of Medler v. Alt. Av. Railroad Co., 36 St. Rep. 89; 12 N. Y. Supp. 930, affirmed in court of appeals without opinion 126 N. Y. 669; 37 St. Rep. 963, that it was negligence for the driver to suddenly start an open horse car when the passenger was on the step for the purpose of alighting therefrom. The converse of the rule would seem equally true, —that it was a negligent act to suddenly and without warning start when the passenger was on the step, and before he had time to get his seat in the car. The defendant’s counsel, however, contend that plaintiff was riding on the step for the reason that he could not find a seat. If so, the case is stronger against the company. If the plaintiff was forced to ride in a dangerous place, then he was not guilty of contributory negligence in so doing, and the employes of the company were bound to exercise greater care. Spooner v. Brooklyn City Railroad Co., 54 N. Y. 230; Werle v. L. I. Railroad Co., 98 N. Y. 650. The verdict was not excessive within the principles laid down by this court in the case of Vail v. Broadway Railroad Co., 6 Misc. Rep. 20; 58 St. Rep. 124.

Judgment and order denying new trial affirmed, with costs.


text:
    Jens Arnesen, Resp’t, v. Brooklyn City Railroad Company, App’lt.

      (Brooklyn City Court, General Term,

      Filed June 25, 1894.)

    Negligence—Street cars—Driving on track.
    It is not negligence to drive along a street railway track.
    Appeal from a judgment in favor of plaintiff.

      Morris & Whitehouse, for app’lt; Thos. E. Pearsall, for resp’t.
   Clement, C. J.

—This appeal is taken from an order denying a new trial on the minutes, and from a judgment entered on a verdict in favor of the plaintiff for the sum of $15,000. No point is 'made that negligence on the part of the motorman in the employ of the company was not proven. The testimony of five passengers on the car which struck the van driven by plaintiff, and of two passengers on a car on the other track, tends strongly to prove a case of gross negligence. The plaintiff was driving a van loaded with furniture on the track, when a trolley car came up in the rear at a very high rate of speed, and struck the truck, and carried the same along the track for a distance of at least 20 feet. The night was clear, and there was a full moon. The motorman could see the truck ahead of him for several blocks. No warning was given with the bell, and the brake was not used until after the car struck the truck.

The first point made by the counsel for the appellant is that the plaintiff was guilty of contributory negligence. We will quote from the points of counsel: In the present case the plaintiff was familiar with the railroad track, and knew that cars frequently passed along them. He knew of the roadway at the sides of the tracks, and had driven on them. He knew that, if he had driven along the left-hand track, instead of the right-hand track, he would not have run the risk of a collision, for he would then have been facing the direction from which the cars approached, and could readily have turned out to the side road to let them pass. Yet, on the night in question, with a covered wagon, loaded to the top, he elected to drive along the right-liaud track, on which the cars would approach from behind him. Had he driven along either of the roadways at the sides of the tracks, which he could have done without any difficulty, he would have been absolutely safe. So, of four parts of the avenue along which he could have driven, he voluntarily selected the only one along which it was dangerous for him to drive. It is unreasonable to say, in view of these facts, that the jury was justified in inferring that the plaintiff exercised the care that a reasonably prudent person .would have exercised under the circumstances.”

As we read the above quotation, it is a claim that a party driving on a street-railway track is, for that reason, guilty of contributory negligence. This is a bold contention, and is not supported by the law. The railroad company had only a paramount right to the use of the street. The plaintiff had a right to drive on the track, or on the side of the track, as suited his convenience. If he drove on the track, he was bound to respect the paramount right of the railroad company. In this case the plaintiff had looked back to see if a car was near shortly before the collision, and had no warning of the approach of the car, for none was given, according to the testimony of a number of disinterested witnesses. This question was before us in the case of Quinn v. Atl. Ave. R. R. Co., 34 St. Rep. 801; 12 N. Y. Supp. 223; affirmed in court of appeals, without opinion, 134 N. Y. 611; 45 St. Rep. 935 ; and was determined adversely to the claim of the appellant. See, also, Bernhard v. Bochester Ry. Co., 68 Hun, 369, 371; 51 St. Rep. 880; Witte v. Brooklyn City R. R. Co., 4 Misc. Rep. 286; 53 St. Rep. 334; Adolph v. C. P., N. & E. R. R. Co., 65 N. Y. 554; 76 N. Y. 530; Fleckenstein v. D. D., E. B. & B. R. R. Co., 105 N. Y. 655 ; 8 St. Rep. 32.

It is also contended by the counsel for the appellant that the verdict of $15,000 was excessive. We have carefully read the record, and examined the testimony on this point, and conclude that there is nothing to show that the verdict was the result of passion or prejudice. Juries are instructed, in actions for negligence, that the plaintiff is entitled to compensation for the injury, and for pain and suffering. It is not solely a question how much . a plaintiff lost in power to earn money. A case has recently been tried in this court where the plaintiff was a bookkeeper, and lost his leg, as he claimed, while in the act of attempting to board a street car. It appeared at the trial that he had then a larger salary than before the injury, so that the loss of the leg had not impaired his power to earn his living. We state this to illustrate the point that a party seriously injured as the result of a negligent act may not suffer a money loss, and yet be entitled to recover compensation for the injury. In this case the verdict would be excessive if the damages were awarded solely for loss of earning power, but it appears from the testimony that the plaintiff was seriously injured, and will always be a sickly man.

The exceptions at folios 172, 173, 269, 404, 418, 421, and 498 have been carefully examined by us, and were not well taken, and require no discussion. The request to charge by counsel for plaintiff at folio 608, was not good law, within the rule laid down in the Adolph Case, supra. The trial judge did not at first understand the request, but, as soon as it was explained to him, corrected what he had said before, and the counsel for plaintiff excepted. The defendant’s counsel made requests to charge on the point, and the request was granted. The request to charge at folio 619 is a claim that a reasonably prudent person should not drive on a street-railway track, and is not good law, as we have before stated.

Judgment and order denying new trial affirmed, with costs.


text:
    Caroline K. Brennan, Pl’ff, v. City of Buffalo, Def’t.

      (Buffalo Superior Court, Equity Term,

      Filed April, 1894)

    1. Municipal cobpobation—Assessment—Limitation.
    Charter limitation of action to tost validity of assessment does not apply to action to set it aside as cloud on title, on the ground that the assessing officer illegally increased the assessment,
    3. Same—Vacation.
    Assessment will not be set aside for partial illegality, where the illegal portion can be ascertained."
    Action to set aside certificate of sale as a cloud on plaintiff’s title.

      Spencer Clinton, for pl’ff; Philip A. Laing and Frank C. Laughlin, for def’t.
   Hatch, J.

—Illegal and arbitrary official acts, errors, and corrections furnish the basis for this action, and vividly illustrate the dangers and penalties which attend upon a departure from the known line of public duty and the plain command of authority. The facts are brief and undisputed. The defendant, through constituted authority, determined to pavea part of School street. The expense of the improvement fell short of exceeding $20,000, but, notwithstanding this fact, the common council evidently determined to have the cost levied at a sum exceeding $20,000, in order that the payments for the improvement might be extended five years, in accordance with the provisions of the charter. It therefore directed the assessors to make an assessment of $20,001, as the cost. Before making the assessment, the assessors were furnished by the engineer of the city with the figures, showing that the entire cost of the impovement only amounted to the sum of $19," 420. Thereupon the assessors proceded to make up an assess* meat upon that basis, and apportioned, in a proper manner, the actual cost of the improvement upon the property benefited, including that of plaintiff. When this was accomplished, without authority and in violation of plaintiffs’s rights, they assessed the further sum of $581, and entered the same in the assessment roll against plaintiff’s property. This was done in order that compliance might be had with the order of the council, and payment extended five years. The roll thus made up came into the hands of the comptroller and treasurer, and plaintiff paid to the latter the first installment due thereon, in ignorance of the illegal acts of defendant’s officers. The treasurer thereafter, as required by the charter, returned the amount unpaid upon this assessment roll to the controller, describing therein the premises as described in the original assessment roll. In the general assessment roll for the next year, prepared by the assessors, they divided plaintiff’s property into two parcels, and in this form it cometo the comptroller’s hands, who thereupon, as commanded by the charter, proceeded to spread the amount returned to him by the treasurer as unpaid •of the previous year. In spreading the tax assessed against plaintiff’s lands, by mistake, the whole of the amount of the unpaid paving tax was spread upon one of the parcels, leaving the other without any apparent burdens thereon from this source, and only assessed for the general city and lamp tax, amounting in all to $52.82. Plaintiff, having discovered the illegal act of the assessors, refused to pay any part of the paving assessment, but paid the amount of the tax upon the parcel apparently relieved therefrom. Thereupon, and in due course of procedure, the treasurer made up a transcript of taxes unpaid, which included plaintiff’s upon one parcel, with added interest and charges, and returned them to the comptroller, who made up a transcript of delinquent taxpayers, as required by law, and delivered the same to the collector for collection, among which was the tax unpaid of plaintiff. While this tax was in the hands of the collector, the comptroller discovered the mistake which had been committed, and thereupon the comptroller changed the original roll and all subsequent evidences of the tax in the treasurer’s roll and collector’s transcript, by apportioning the tax upon all the land as originally assessed by the assessors in their assessment, with the additions certified by the treasurer. Upon this tax, so corrected, the defendant caused plaintiff’s lands to be sold in the usual course, and bid in the same, and now holds the certificates of sale. This constitutes the cloud upon plaintiff’s title which, she asks to have set aside.

It is not contended but that the several acts of defendant result in creating a clocad upon the plaintiff’s title, and that this action will lie to remove it, provided it he not barred bv the statute of limitations, contained in defendant’s charter. This statute, so far as essential for the disposition of the present question, -reads: ‘‘Any action or proceeding commenced by any person or persons to test the validity or regularity of any tax levied or assessment made, shall ,be commenced within one year from the time of the delivery of the roll in which said tax or assessment is contained to the treasurer.”

While the force of a determination declaring this tax to be a cloud upon the title, and canceling it, necessarily results in a declaration of its invalidity, either in whole or in part, yet such, in the statutory sense, is not the primary purpose of the action; its purpose is to remove a cloud on title, by annulling a wrongful and arbitrary act which the law does not sanction. The allegation of the complaint is, among other things, that the assessors assessed all the land upon the basis of a cost of $19,420, in proportion to the benefits derived thereto, and then, without reference to benefits or any other consideration except to raise the tax to a given sum, they wrongfully, unlawfully, and arbitrarily created an apparent lien and cloud upon plaintiff’s land. The gravemen of the complaint is the wrongful and arbitrary acts of the officers. It is these acts which have produced the injury, and they are the things which the action seeks to have set aside, which, when done, causes all acts based thereon to fall. The action is not within the literal terms of the statute, as its primary purpose is not to test the tax levied, but to remove a cloud, and this does not rest upon the levying of the tax, but solely upon the illegal act in arbitrarily placing a given sum of money against the land, not by way of any tax or assessment for any purpose, but simply to increase the amount of the roll. The limitation is upon an action or proceeding to test the validity and regularity of a tax, and, by another provision of the charter, different owners may unite in the same action, and, where the invalidity is patent upon the face of the roll, provision is made for application to the court without action, and this action or proceeding may be maintained whether the tax be a lien or a cloud upon land or not. The legislature, having given these remedies to test the validity and regularity of a tax, intended and has placed a limit upon their exercise. But it seems clear to my mind that it did not intend to embrace therein these equitable actions for relief from illegal, arbitrary, and wrongful acts resulting in injury, but has left such actions as they before existed, subject to the practice prescribed by the Code of Procedure, and governed by principles of law long established. I therefore regard this action as well brought.

The facts of the case being admitted, the measure of relief becomes a subject of consideration. It clearly appears that the assessors levied and apportioned the actual cost of the improvement upon all the property based upon benefits resulting thereto, and that in all respects the provisions of law governing their action have been complied with, the improvement has been made, and plaintiff has received the benefits to her land resulting therefrom. The amount of the illegal sum is accurately ascertained, and if deducted from the amount of the tax, furnishes complete relief for all that plaintiff has suffered arising out of the wrongful and illegal act of the assessors. It is true that the roll, by the illegal act, had become a roll payable in five years instead of three, but plaintiff is not shown to be prejudiced on account of this fact. She is not precluded from paying earlier if she chooses, while the testimony is that this was made for the benefit of the taxpayer, and furnished the occasion for embracing the arbitrary sum. It has been held that where the levying of a tax was without authority, but no injury has resulted therefrom, no cause of action existed, O'Reilley v. City of Kingston, 114 N. Y. 439 ; 23 St. Rep. 799; Moore v. City of Albany, 98 N. Y. 396; and this court has recently held that where the extent of the injury can be easily and accurately determined, and deduction of the amount made, the whole tax will not be vacated and set aside, but only the illegal portion." Kittinger v. City of Buffalo, MS. opinion by White, J., adopted by the general term, following the supreme court in Kinsella v. City of Auburn, 26 St. Rep. 884; 7 N. Y. Supp. 317. I think the principle applicable to the facts of this case, and that justice will be accomplished by striking out the arbitrary sum, and permitting the' remainder to stand. When the roll came from the assessors to the comptroller, it was assessed upon plaintiff’s entire property as one parcel, was so entered by him, and so appeared in the treasurer’s hands, and was so returned again by him to the comptroller. Upon the next year’s roll, the assessors, for some purpose unexplained, had divided this land into two parcels, but it was still the same land in quantity and ownership, and subject to the same tax. By the provisions of the charter (title 5, § 10), the comptroller was required to spread the aggregate amount of all local assessments and additions returned to him opposite each lot of land subject to such tax. It therefore became his duty to set plaintiff’s tax opposite her land. He did not do so, but placed it opposite only a part. This was not an error of judgment. The amounts were known. Everything connected therewith was known. . It was simply a mistake in placing it all opposite one lot, instead of opposite both. The tax was a valid tax, with the arbitrary sum removed, and the land was subject to its payment. As thus set down, it passed to the hands of the treasurer. Plaintiff refused to pay, on account of illegality. She did pay the general and lamp tax against the relieved parcel, but such payment is no wise prejudiced her rights in the matter, nor did it mislead her to her prejudice. She was bound to pay that tax, independent of the paving tax. She was in no wise affected by this act. When the comptroller discovered the mistake, he did what he should have done in the beginning,—placed the tax so that it appeared as a lien upon all the land. This involved no more than a clerical correction. It left the tax where it properly belonged, without prejudice to plaintiff or any other person. Charter, tit. 5, § 10; Cooley, Tax’n, 321-323. The case, as thus presented, shows that, while illegal acts and errors have been committed, yet the extent to which plaintiff has suffered is clear, definite, and certain, and can be corrected in such manner that justice for all parties can be attained. Such correction I believe to be within the equitable powers of the court. Judgment is therefore ordered declaring the acts of the assessors in levying the sum necessary to raise the roll above $19,420 null and void; setting aside, vacating, canceling, and annulling the sale of the premises made by the comptroller, and the certificates thereof issued to defendant, as constituting a cloud upon plaintiff’s title; also directing that the tax assessed against plaintiff’s lands be reduced in the sum of $581, with all interest, additions, and charges assessed or made against plaintiff on account of such sum, together with the costs of this action. Ordered accordingly.


author: Per Curiam.

text:
    Hampton Hyde, as Executor, etc., App’lt, v. Charles G. Houston et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed March 27, 1894.)

    Fraudulent conveyances—"When not.
    A purchase of land in the name of a daughter of the judgment debtor and conveyance to her, though leased by her to the debtor, were held, under the circumstances of this case, not to be in fraud of creditors.
    Appeal from a judgment dismissing the complaint.
    The opinion of Mr. Justice Bradley, at special term, is as follows :
    The defendant Margaret S Houston is the daughter of the other defendant, and at the time the contract was made she was only a few months more than twenty-one (21) years of age. She then had no property or estate of her own, and since that time her father and his family have resided upon the premises, and the defendant Margaret has also resided there. It is alleged—and such is the contention on the part of the plaintiff—that a contract and a part of a conveyance were taken in the name of Margaret as a cover, and in fraud of the creditors of the defendant Charles Gr. Houston, who, it is alleged, has paid the purchase money, or the most of that which was paid, upon the contract, and has since the conveyance been paid upon the bond and mortgage. If that contention is supported, in the sense so charged,' the plaintiff is entitled to relief. The fact that the premises were so occupied, and that the defendant Margaret had no means in the outset, and was engaged in no service, away from home, to produce any income, while her father was receiving a salary for his services, would, without some further proof on the subject, seem to justify the inference that he was substantially the beneficiary of the purchase, and that the payments on the purchase money, and on the taxes, insurance, etc., were his, and had, by fraudulent diversion from his creditors, been put into the property, and, in relation to the title taken by the daughter, such payment constituted voluntary gifts to her, to the prejudice of her creditors. This is the theory upon which the plaintiff has proceeded.
    Hpon the main proposition the question is one largely of credibility of the witnesses on the part of the defense, who were the defendants, and the wife and mother of them. The defendants, before the commencement of this action, were examined in proceedings supplementary to the execution. The facts, as are represented by their testimony on the trial of their action, are much more ample or extended than they are represented by their depositions taken upon the supplementary proceedings to have been' there stated; and such a construction may be put upon their depositions as tends to show that they did not then recollect some things to which they testified on the trial. Their evidence, and that of Mrs. Houston, tends to prove that a person called by them “ Aunt Manda Green ” induced Margaret to purchase the property, in the first instance, by promising to help her pay for it, and that she did advance to Margaret two hundred dollars ($200) with which to make the first payment, and let her have, altogether, for that purpose, and to pay taxes, five hundred dollars ($500); that the father rented the premises of the daughter at the monthly rental of twenty-five dollars ($25), which he paid her, and it was used to make payments ; that the mother of Margaret, having received some money from the aunt’s estate, furnished some to her daughter; and that the latter was employed by her father at the weekly price of three dollars ($3) for her service in the house. All of which, the evidence of those witnesses tends to prove, were the sources of the fund with which she made, or caused to be made, payments of the purchase money, etc., of the premises. In that manner the payments by her may be substantially accounted for. The rent at twenty-five dollars ($25) from April 1, 1885, to May 1, 1893 (the' time the last payment upon the bond, eight years one month); the three dollars per week for her services -during the same time; and the moneys which the evidence tends to prove were advanced to Margaret by the aunt, Manda Green,—made an amount more than sufficient to pay all that was paid on the contract and mortgage, and for insurance, taxes, local assessments, and water rents, since Margaret took the contract, and entered into the possession of the premises. It may be assumed that Mr. Houston desired that the premises should be purchased by his daughter, and that she made the purchase (encouraged to do, as she may have been, by her aunt) with a view to a home for her parents, as well as for herself. Such inducement, for it does not necessarily characterize the transaction between herself and her father as fraudulent against his creditors, if the amount of rent he promised to pay her was not unreasonable ; and, as to that, the only evidence upon the subject is that the rental of twenty-five dollars ($25) per month was reasonable in amount. It also appears, by evidence to that effect, that Margaret was induced to remain at home, and perform services in the house for her father, by his promise of compensation for doing so. In view of the evidence the conclusion is fairly justified that the payments before mentioned upon the property were made by Margaret, or with money to which she was entitled, and that the charge of fraud as against creditors, in that respect, is not supported.
    There is, however, a further fact, upon which the plaintiff seems to rely in support of the claim that money of the defendant Charles Houston went into the property. This has relation to the sum of six hundred dollars ($600) which his wife, the mother of Margaret, let her have to make certain improvements on the premises, and which were used "for that purpose. Their aunt, Manda Green, lived with them, in the house on the premises, and was taken care of there for some time prior and up to the time of her death. She left a' will, by which she gave to Mrs. Houston a legacy of three hundred and fifty dollars ($350), a legacy to Mr. Houston of five hundred dollars ($500), and a legacy of fifty dollars ($50) to Margaret. Mr. Houston was executor of the will. Mrs. Houston made and presented a • claim against the estate of the testatrix, amounting to six hundred dollars ($600), for services in taking care of her. The claim was awarded or allowed to her by the surrogate, against the estate, and was paid by the executor to her. The money, or the amount of it, Mrs. Houston let Margaret have the benefit of, for the purpose of building an addition to the house on the premises in question, and it was so used. It is urged by the plaintiff that the money belonged to Mr. Houston, and therefore the plaintiff should, at least to that extent, have relief by the way of charge upon the premises. If there was a liability from Mrs. Green for services performed by the wife, the presumption, in an action brought by the husband to recover pay for them, would have been in support of recovery by him. Birkbeck v. Ackroyd, 74 N. Y. 356. And an agreement of a husband to pay his wife for services performed in his household, or for him, is not effectual to support her claim for payment against him. Coleman v. Burr, 93 N Y. 17 ; Blaechinsha v. Mission & Home, 130 N. Y. 497; 42 St. Rep. 387. But circumstances might have existed which would have supported the claim of Mrs. Houston for the services performed by her for Miss Green. Reynolds v. Robinson, 64 N. Y. 593; Burley v. Barhard, 9 St. Rep. 587; Stamp v. Franklin, 35 id. 828; 12 N. Y. Supp. 391, and cases before cited. The monej"' allowed was paid to Mrs. Houston upon her claim o,f liability to her from the testatrix, at the time of the death of the latter, for services performed by the claimant for her. It will not nor cannot be assumed, in the absence of Mrs. Houston as a party to the action, that the circumstances which would entitle her to payment did not exist for its support. In an action by her or her husband to recover for the services, a different question would arise. Then to whom the liability was incurred would necessarily be the question for determination, and upon the disposition of it'would depend _the result. The asserted obligation to pay Mr. Houston for the services has been discharged by the allowance and payment to her, and, before denial of her right to the money she claimed and received on that account, she is entitled to the opportunity to be heard. It must, therefore, in the present case, be assumed that Mrs. Houston obtained the money from the estate of the testatrix upon a claim or right to it founded upon facts for its support, and that no relation, in respect to the money received from her mother by Margaret, arose between the latter and Mr. Houston. And inasmuch as it cannot, in the present case, be treated as a gift by him to her, the plaintiff can here found no claim upon its use in making improvements on her premises. The conclusion follows that the complaint should be dismissed.

      John H. Hopkins, for app’lt; Shaurt & Sutherland, for resp’ts.
   Per Curiam.

—Judgment appealed from affirmed, with costs, on the opinion of Bradley, J., at special term.


author: Forbes, J.

text:
    Mary A. Dowd, Pl’ff, v. Dudley B. Smith, Resp’t.

      (Supreme Court, Cortland Special Term,

      Filed May 31, 1894.)

    1. Judgment—Offer.
    Offer of judgment must be in writing.
    2. Costs—Offer of judgment.
    Where an unaccepted offer of judgment was made by defendant before issue was joined, an affirmative judgment for plaintiff for more than the offer is not rendered more favorable to him than the offer by the fact-that, on the trial, a counterclaim in the answer subsequently served which, with the recovery, exceeded the offer, was discharged.
    Motion for a new taxation.
    Wm. D. Tuttle, for pl’ff; Irving H. Palmer, for def’t.
   Forbes, J.

—This is a motion for a new taxation of costs. The defendant asks to strike out the plaintiff’s costs, awarded to her upon a taxation by the clerk of Cortland county, and to insert in the judgment in this action costs in favor of the defendant. The action was brought by the plaintiff to recover under a contract for the sale and partial delivery of a quantity of hay. Before answering in the action, the defendant offered to allow a judgment to be taken against him for the sum of $90 and costs, which offer was not accepted within the time required by law. The defendant thereafter answered, setting up two counterclaims: First, a counterclaim for breach of the contract of sale on the part of the plaintiff, in refusing to deliver all the hay purchased, arising out of the same transaction stated in the complaint, and demanding damages therefor in the sum of $140. This was pleaded as a counterclaim, and also as a defense. A second counterclaim was interposed to the plaintiff’s complaint, for board, feed of teams, and materials used in pressing and bailing the hay in question, and also for labor and materials furnished in pressing other hay and straw by the defendant for the plaintiff. The action was referred to the Honorable Joseph E. Eggleston, as referee, to hear and determine. T.lie referee found that the defendant was entitled to counterclaim against the demand made in the complaint the sum of $39.42 upon the plaintiff’s claim for damages for a breach of the contract, and also awarded to the defendant the sum of $15.38 for pressing other hay and straw at the plaintiff’s request, but found a verdict in favor of the plaintiff, and that she was entitled to recover against the defendant the sum of $70.16 damages, with interest from the 23d day of February, 1892, to the 22d day of July, 1893 ; making a total recovery in favor of the plaintiff against the defendant of $76.11, or $13,89 less than the offer, upon the face thereof, before the issue was joined; to which add interest on the offer from July 1, 1892, to the time of the entry of the judgment (July 22, 1893), $5.71, which makes a total offer of $95.71, which makes the total recovery $19.60 less than the offer. As to adding interest on offer, see Bathgate v. Haskin, 63 N. Y. 261. .The plaintiff’s attorney claims that the plaintiff is entitled to costs upon the ground that the judgment obtained by the plaintiff is more favorable to her than the offer made, upon the theory that in the trial of the action she has liquidated the sum of the counterclaims, $54.80, and recovered a judgment iij her favor for $76.11, which, added to the counterclaims liquidated, would make $130.91, while the offer made by the defendant allowed her a judgment for only $90 and costs, with interest on the offer, $5.71, making the total value of the offer $95.71. It is conceded that if the defendant’s offer had been made after the joining of issue, when the plaintiff had full knowledge of the defendant’s counterclaims and set-off, the offer of $90 would have made the recovery more favorable to the defendant, and, therefore, that the defendant would have been entitled to costs. The defendant claims that this offer was renewed after the joining of issue by the service of the answer in this action, but there is no evidence before the court that a valid offer was made at the time of, or after, the joining of the issue. Section 738 of the Code of Civil Procedure provides: “ The defendant may, before trial, serve upon the plaintiff’s attorney, a written offer, to allow judgment to be taken against him, for a sum, or property, or to the effect, therein specified, with costs.”

The Code seems, therefore, to provide that the offer shall be made in writing; and that view seems to have -been taken by the court in the case of Sterne v. Bentley, 3 How. Pr. 331, which holds: “An offer in writing to allow judgment to be taken against the defendant, signed by his attorney, is in compliance with the Code, and is equivalent to a signing by the defendant himself.”

In Webb v. Dill, 18 Abb. Pr. 264, it is held that where an attorney has once been employed and appeared in the action the attorney must sign the offer of judgment, or, if signed by the defendant, notice thereof must be given to the attorney. Under § 740 of the Code of Civil Procedure, which is a new provision, there seems to be no question that the offer must be in writing, and subscribed by the party making it, or by his attorney, who, when he subscribes it, shall annex thereto an affidavit of authority in behalf of the party. That a second offer can be made is held in the case of Hibbard v. Randolph, 72 Hun, 626 ; 56 St. Rep. 431. • It is also held in the case of Smith v. Kerr, 49 Hun, 29 ; 17 St. Rep. 351, that the service of a copy of the offer, and affidavit of the authority annexed, is a compliance with the statute, and the delivery of the original papers is not essential to the service. These authorities seem to be sufficient to settle the proposition that the offer must be in writing, and that there was but one offer made in this case.

The more difficult question to determine is the one first suggested: Is the judgment for damages, as entered, more favorable to the defendant than to the plaintiff ? Upon this proposition depends the question as to whether the plaintiff or the defendant is entitled to costs. The leading authority upon this subject appears to be the case of Ruggles v. Fogg, 7 How. Pr. 324, which holds that where, upon the trial, the plaintiff extinguishes a set-off of the defendant, which, with the verdict obtained, exceeds the defendant’s offer, the plaintiff is entitled to the full costs. This case seems to have been followed in the case of Turner v. Honsinger, 31 How. Pr. 66, and the same doctrine seems to have been approved by the court of appeals in Tompkins v. Ives, 36 N. Y. 75. In this case, Porter, J., says: “The nominal amount was less than the sum proposed ; but in determining the right to costs the plaintiff is entitled to the benefit of the counterclaims which the defendant afterwards elected to interpose, and which are now extinguished by the judgment; ” citing, among other cases, Ruggles v. Fogg, supra.

The same rule seems to be laid down in 1 Eumsey, Pr. p. 631; Baylies, Tr. Pr. p. 63. Costs are a creation of the statute and can be awarded only in cases which are clearly within the statutory provision. Patterson v. Burnett, 23 St. Rep. 363 ; 4 N. Y. Supp. 921.

Counsel for the defendant claims that the cases cited supra must be distinguished from the case at bar upon the theory that, notwithstanding the answer in the case was not served, the counterclaim for damages for a breach of the contract was known to the plaintiff, and that the offer of judgment, had it been accepted by the plaintiff, would have barred the counterclaim, $140, and that a judgment in favor of the plaintiff would have been a liquidation of the defendant’s demand arising out of the same transaction, and cites, in principle, as establishing this doctrine, cases where physicians have brought an action for their services, and upon a recovery of a judgment in their favor, without answering, a subsequent claim for malpractice was barred. Gates v. Preston, 41 N. Y. 113; Blair v. Bartlett, 75 N. Y. 150. To the same effect, in principle: Newton v. Hook, 48 N. Y. 676; Dunham v. Bower, 77 N. Y. 76; Robinson v. Marks, 19 Hun, 325. Had the defendant’s attorney included in his offer the liquidation or discharge of his counterclaims subsequently interposed by the answer, there would have been no question, probably, that the defendant would have been entitled to costs, because then the judgment would clearly have been more favorable to the defendant. Ruggles v. Fogg, supra. This case seems also to hold that had the plaintiff accepted the defendant’s offer, without a discharge of the counterclaims, he still would have retained a right of action against the defendant. But this case was decided in 1852, while the amendment of 1877 seems to maleé provision for a compromise of the claim, permitting the defendant to make an offer of judgment on the claims set up in the complaint; and by § 739 of the Code of Civil Procedure an offer of compromise of the defendant’s counterclaim may be made by the plaintiff, where the counterclaim is greater than the plaintiff’s claim. » Are not these provisions therefore intended as a liquidation of all the demands between the parties ? In other words, are they not intended as a compromise, to avoid all future litigation ? and does not the offer, if accepted, bar any future litigation between the parties, arising out of the subject matter of the transaction ? This se"ems to be the position taken by the latter decisions in the court of appeals, and is made applicable to actions in equity as well as to actions at law. Bathgate v. Haskins, supra. In the case of Davies v. Mayor, etc., 93 N. Y. 250, Andrews, J., in writing the opinion, in speaking of the effect a general offer, says: “ It rests upon the ground that a general offer of judgment, accepted, upon which judgment has been entered, concludes the party making it from bringing a new action for any part of the claim embraced in the complaint, and which might have been litigated in the action. The offer under the Code is made to save litigation. The party to whom it is made may accept or reject it. If he accepts it, and may afterward bring a new action, and sustain it by proof that the whole claim originally made was recoverable, or that the amount of the offer was due on one of several causes of action embraced in the original action, it would or might destroy the only consideration upon which the other party acted in making the offer. Non constat that the offer would have been made except upon the view that its acceptance would extinguish the entire claim.”

The same view was taken of that doctrine in Bathgate v. Haskin, supra. Miller, J., at page 264 of that case, says: “The object of the provision is to circumscribe and arrest litigation by preventing trials, and thus diminish the expenses arising from the same, and avoid the trouble and annoyance, as well as the cost, of a legal controversy. The statute was a beneficial one, and should receive a liberal construction; and the object would, in part, be defeated, if it was restricted in its operation.”

I should have no difficulty in adopting and applying this rule to the case at bar, so far as the counterclaim of $140, arising out of the same transaction set forth in the complaint, is concerned,— the referee having allowed upon that claim the sum of $39.42, which must be regarded as a liquidation of that claim, under the complaint; and I think this counterclaim would have been fully barred by the entry of a judgment under the offer. And this would apply to the other counterclaim, if that set-off arose directly under any provision of the contract made between the parties for pressing the hay in question, because then it would have arisen out of the same transaction, and would also have been barred by the entry of the judgment. But the referee seems to have treated the set-off of $15.38 as a claim not arising out of the contract. By reference to the contract itself, as it is made a part of the complaint, I am inclined to believe that the sum of $15.38 is so connected with the complaint and with the provisions-of the contract. as to be a paid of the same transaction, and therefore properly a counterclaim. If this is correct, then the offer would have been a bar to any future recovery by the defendant upon what has been called the “set-off.” But assuming it was clearly an independent cause of action, and therefore a set-off, it amounts to only $15.38, while the offer is more favorable to tíre defendant by the difference between the set-off, 15.38, and the balance above the defendant’s judgment, $19.60, which leaves the offer more favorable to the defendant by $3.22. If I am correct in the conclusions which I have reached, the recovery is still more favorable to the defen dan t than the offer made by him; and the defendant is therefore entitled to recover his costs against the plaintiff for all proceedings after the offer was made, and the plaintiff is entitled to her costs and disbursements up to the time of the offer—July 1, 1892.

The clerk of the county of Cortland is directed to make a new axation in conformity with this opinion, offsetting the plaintiff’s costs up to the date of the service of the offer, and deducting them from the sum of the defendant’s costs and disbursements since the date of the offer, and tax and award to defendant his costs; and the defendant may be permitted to offset the same against the plaintiff’s recovery and judgment in this action, with $10 costs of this motion.